USA V. MARCUS DEAN, No. 17-30126 (9th Cir. 2017)
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FILED NOT FOR PUBLICATION DEC 21 2017 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, U.S. COURT OF APPEALS No. 17-30126 D.C. No. 6:06-cr-00008-CCL v. MEMORANDUM* MARCUS DEAN, Defendant - Appellant. Appeal from the United States District Court for the District of Montana Charles C. Lovell, District Judge, Presiding Submitted December 18, 2017** Before: WALLACE, SILVERMAN, and BYBEE, Circuit Judges. Marcus Dean appeals from the district court’s judgment and challenges the 11-month sentence imposed upon revocation of his supervised release. 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 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). Dean argues that the district court erred by failing to consider the exception to imprisonment listed in 18 U.S.C. § 3583(d) and, in turn, by not sentencing Dean to drug treatment instead of imprisonment, as requested. We review for plain error, see United States v. Rangel, 697 F.3d 795, 800 (9th Cir. 2012), and conclude that there is none. Even if Dean is correct that the district court could have ordered substance abuse treatment in lieu of imprisonment, the record reflects that it would not have done so. See United States v. Dallman, 533 F.3d 755, 762 (9th Cir. 2008) (to show plain error, defendant must show “a reasonable probability that he would have received a different sentence” absent the error). Contrary to Dean’s contention, the record shows that the court considered his request for substance abuse treatment, as well as his alternative request for a 5-month sentence, and concluded that an 11-month sentence was warranted. The court’s reasons for imposing the high-end sentence are apparent from the record. See United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc). Moreover, in light of the 18 U.S.C. § 3583(e) sentencing factors and the totality of the circumstances, including Dean’s history on supervision, the sentence is substantively reasonable. See Carty, 520 F.3d at 993. AFFIRMED. 2 17-30126
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