FILED
NOT FOR PUBLICATION FEB 27 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-30036
Plaintiff - Appellee, D.C. No. 4:11-cr-00057-SEH-1
v.
MEMORANDUM*
THOMPSON ST. PIERRE,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 12-30142
Plaintiff - Appellee, D.C. No. 4:11-cr-00057-SEH-3
v.
AUSTIN JOSEPH DENNY,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Circuit Rule 36-3.
Submitted February 7, 2013**
Seattle, Washington
Before: FISHER, GOULD and PAEZ, Circuit Judges.
Thompson St. Pierre appeals his sentence following his guilty plea for
assault with a dangerous weapon. Austin Denny appeals his conviction and
sentence for simple assault and assault with a dangerous weapon. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. We reject St. Pierre’s argument that the district court erred by employing a
five-point enhancement for an assault resulting in serious bodily injury because his
codefendants were acquitted at trial of assault resulting in serious bodily injury.
This argument is precluded by United States v. Watts, 519 U.S. 148, 157 (1997),
which held that “a jury’s verdict of acquittal does not prevent the sentencing court
from considering conduct underlying the acquitted charge, so long as that conduct
has been proved by a preponderance of the evidence.” The victim’s injuries, which
included gashes causing substantial blood loss and requiring sutures, staples and
hospitalization to repair, supported an enhancement for serious bodily injury. See
United States v. Corbin, 972 F.2d 271, 272 (9th Cir. 1992) (upholding a sentencing
enhancement for serious bodily injury because a laceration requiring a two-layer
**
The panel unanimously concludes these cases are suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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closure using more than 25 sutures was “reasonably include[d]” in the “definition
provided by the Commentary” to the Guidelines).
2. We reject Denny’s argument that insufficient evidence supported his
convictions, because the victim’s testimony would permit a rational juror to
conclude, beyond a reasonable doubt, that Denny intentionally held the victim
down while St. Pierre and Young attacked him with weapons. See United States v.
Nevils, 598 F.3d 1158, 1161 (9th Cir. 2010) (en banc) (“[W]e are obliged to
construe the evidence ‘in the light most favorable to the prosecution,’ and only
then determine whether ‘any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.’” (quoting Jackson v. Virginia,
443 U.S. 307, 319 (1979))).
3. We reject Denny’s argument that the district court erred by rejecting
Denny’s proposed jury instructions on mere presence and specific intent, because
those theories were adequately covered by the other jury instructions. See United
States v. Mason, 902 F.2d 1434, 1438 (9th Cir. 1990) (“[I]t is not reversible error
to reject a defendant’s proposed instruction on his theory of the case if other
instructions, in their entirety, adequately cover that defense theory.”), overruling
on other grounds recognized by United States v. Doe, No. 11-10067, 2013 WL
363016, at *8 (9th Cir. Jan. 31, 2013).
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4. We reject Denny’s argument that the district court erred by applying
sentencing enhancements for serious bodily injury and use of a dangerous weapon
without issuing a specific factual finding regarding whether Denny had the specific
intent to cause serious bodily injury or use a dangerous weapon. Denny’s
argument with respect to serious bodily injury is foreclosed by United States v.
Garcia-Camacho, 122 F.3d 1265, 1268 (9th Cir. 1997), which held that “[s]ection
2A2.2 . . . applies even where there is no finding that a defendant had the specific
intent to cause serious bodily injury.” With regard to the use of a dangerous
weapon, the district court properly relied on the fact that Denny was convicted of
assault with a dangerous weapon, which requires specific intent. See United States
v. Upshaw, 226 F.3d 1101, 1102-03 (9th Cir. 2000) (holding that, if a fact is a
necessary element of the crime of conviction, that fact is sufficiently established to
support a sentencing enhancement).
AFFIRMED.
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