                                                                             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                           NOT FOR PUBLICATION                                FEB 27 2013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).

                                          2
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).


                                          3
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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