                                                                           FILED
                           NOT FOR PUBLICATION                              MAR 12 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-30235

             Plaintiff - Appellee,               D.C. No. 4:08-cr-00129-SEH-1

  v.
                                                 MEMORANDUM *
DEANNA MARIE BLACKMAN,

             Defendant - Appellant.



                    Appeal from the United States District Court
                            for the District of Montana
                     Sam E. Haddon, District Judge, Presiding

                       Argued and Submitted March 3, 2010
                                Portland, Oregon

Before: PAEZ, TALLMAN and M. SMITH, Circuit Judges.

       Defendant-Appellant Deanna Marie Blackman raises procedural and

substantive challenges to her sentence after pleading guilty to Assault Resulting in

Serious Bodily Injury, in violation of 18 U.S.C. § 113(a)(6). We presume the

parties’ familiarity with the facts and do not recount them here except as necessary



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Cir. R. 36-3.
to explain our decision. We have jurisdiction pursuant to 28 U.S.C. § 1291, and

affirm.

      “We review the district court’s interpretation of the Sentencing Guidelines

de novo, the district court’s application of the Guidelines to the facts for abuse of

discretion, and the district court’s factual findings for clear error.” United States v.

Loew, 593 F.3d 1136, 1139 (9th Cir. 2010) (internal quotation marks omitted).

      First, the district court did not err in applying a four-level enhancement

pursuant to § 2A2.2(b)(2)(B) of the Guidelines. U.S. S ENTENCING G UIDELINES

M ANUAL § 2A2.2(b)(2)(B) (2009). The district court properly determined that

there was intent to cause bodily injury. See United States v. Dayea, 32 F.3d 1377,

1380 (9th Cir. 1994) (holding that § 2A2.2(b)(2)(B) requires intent to injure).

Based on the unchallenged facts in the Presentence Report and Renville’s

testimony that Blackman entered the house, dragged Renville off the couch, kicked

her, and hit her in the face with her crutch, the district court’s finding of intent to




                                            2
cause bodily injury was not clearly erroneous.1 In addition, there was insufficient

evidence to show that Blackman was not sufficiently in control of her faculties, or

otherwise “too [intoxicated] to form the requisite intent.” United States v. Allen,

341 F.3d 870, 891 (9th Cir. 2003); accord United States v. Blalock, 571 F.3d 1282,

1286 (D.C. Cir. 2009) (finding requisite specific intent for application of

sentencing factor despite there being no dispute that the defendant was high on

PCP and had stripped naked in the street in front of a police station and fired his

gun).

        Second, the district court did not err in applying a five-level enhancement

for an assault resulting in “Serious Bodily Injury” pursuant to § 2A2.2(b)(3)(B).

“The sentencing factor of serious bodily injury was established by [Blackman’s]

conviction.” United States v. Upshaw, 226 F.3d 1101, 1102 (9th Cir. 2000) (per

curiam). In addition, given that Renville suffered a broken nose, six stitches above

her eye, and that the treating physician stated the assault resulted in serious bodily


        1
         The district court was not required to find intent beyond a reasonable
doubt. See United States v. Dare, 425 F.3d 634, 642 (9th Cir. 2005) (“As a general
rule, the preponderance of the evidence standard is the appropriate standard for
factual findings used for sentencing.”); United States v. Ameline, 409 F.3d 1073,
1077–78 (9th Cir. 2005) (en banc) (“Standing alone, judicial consideration of facts
and circumstances beyond those found by a jury or admitted by the defendant does
not violate the Sixth Amendment right to jury trial. A constitutional infirmity
arises only when extra-verdict findings are made in a mandatory guidelines
system.”).

                                           3
injury due to extreme physical pain and protracted and obvious disfigurement, the

district court’s finding that Renville suffered serious bodily injury was not clearly

erroneous.

      Finally, the district court neither committed procedural error at sentencing

nor imposed a substantively unreasonable sentence. The district court properly

weighed the § 3553(a) factors as well as “listened to [Blackman’s] arguments and

then simply found these circumstances insufficient to warrant a sentence lower

than the Guidelines range.” United States v. Amezcua-Vasquez, 567 F.3d 1050,

1054 (9th Cir. 2009) (internal quotation marks and alterations omitted). The 46-

month within-Guidelines sentence was not substantively unreasonable. See Gall v.

United States, 552 U.S. 38, 51 (2007).

      AFFIRMED.




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