                                                                           FILED
                            NOT FOR PUBLICATION                             NOV 09 2010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. 09-30443

              Plaintiff - Appellee,              D.C. No. 4:09-cr-00042-SEH-1

       v.
                                                 MEMORANDUM *
JEREMY LESLIE ADAMS,

              Defendant - Appellant.

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

                           Submitted November 1, 2010 **
                                 Portland, Oregon

Before: W. FLETCHER and FISHER, Circuit Judges, and BURY, District
        Judge.***




        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
         The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
           The Honorable David C. Bury, United States District Judge for the
District of Arizona, sitting by designation.
      Jeremy Leslie Adams appeals from his conviction and sentence for sexually

abusing his cousin after a night of heavy drinking, in violation of 18 U.S.C.

§§ 1153(a), 2242(2)(B). We affirm.

      Adams’ conviction is supported by sufficient evidence. The evidence

adduced at trial, viewed in the light most favorable to the prosecution, was

adequate to allow any rational trier of fact to find the essential element of sexual

penetration beyond a reasonable doubt. See United States v. Nevils, 598 F.3d 1158,

1163-64 (9th Cir. 2010) (en banc). The victim’s testimony was, as the district

court explained, graphic, specific, detailed and believable. Although Dr. Uphues’

examination did not find evidence of penetration, nothing in the doctor’s findings

required the jury to disbelieve the victim’s testimony.

      Adams’ 200-month sentence is free from procedural error and substantively

reasonable. The district court correctly calculated the Sentencing Guidelines

range, used the guidelines range as a starting point, considered the sentencing

factors enumerated in 18 U.S.C. § 3553(a) and adequately explained the basis of its

decision. The court reasonably determined that Adams’ criminal history score

does not significantly overstate his criminal history. The court considered Adams’

history of mental illness and intoxication as mitigating factors, but reasonably

determined that other factors – including the seriousness of this offense, Adams’


                                           2
extensive criminal history and Adams’ disregard for the law and the rights of

others – weighed against the variance sought by Adams. The sentence is not

unreasonable. See Gall v. United States, 552 U.S. 38, 59-60 (2007) (“On

abuse-of-discretion review, the Court of Appeals should [give] due deference to the

District Court’s reasoned and reasonable decision that the § 3553(a) factors, on the

whole, justified the sentence.”).

      AFFIRMED.




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