                                                                             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                           NOT FOR PUBLICATION                                FEB 27 2013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. 12-30147

             Plaintiff - Appellee,              D.C. No. 4:11-cr-00057-SEH-2

       v.
                                                MEMORANDUM*
VERNON MARSHALL JAMES
YOUNG,

             Defendant - Appellant.

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

                     Argued and Submitted February 7, 2013
                              Seattle, Washington

Before: FISHER, GOULD and PAEZ, Circuit Judges.

      Vernon Young 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.




        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Circuit Rule 36-3.
1.    We reject Young’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 Young attacked the victim with a hammer

while others held the victim down. 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))).

2.    We reject Young’s argument that the district court erred by rejecting his

proposed jury instruction on mere presence, because the other instructions made

clear that mere presence was insufficient to support a conviction. 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).

3.    We reject Young’s argument that the district court erred by admitting the

testimony of a forensic DNA analyst although the government failed to provide a

witness to testify as to how the samples the DNA analyst tested were transported


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from the office of the investigating officer in Montana to the analyst’s office in

Virginia. “The possibility of a break in the chain of custody goes only to the

weight of the evidence,” not to its admissibility. United States v. Harrington, 923

F.2d 1371, 1374 (9th Cir. 1991). Nor does the absence of chain-of-custody

testimony implicate the Confrontation Clause. See Melendez-Diaz v.

Massachusetts, 557 U.S. 305, 311 n.1 (2009) (“[I]t is not the case[] that anyone

whose testimony may be relevant in establishing the chain of custody, authenticity

of the sample, or accuracy of the testing device[] must appear in person as part of

the prosecution’s case.”).

4.    We reject Young’s argument that the district court erred by applying a five-

point enhancement for serious bodily injury because he was 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


                                          3
for serious bodily injury because a laceration requiring a two-layer closure using

more than 25 sutures was “reasonably include[d]” in the “definition provided by

the Commentary” to the Guidelines).

      AFFIRMED.




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