The panel unanimously concludes this case is suitable for decision without oral… v. Marcus Dean

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 17-30126
D.C. No. 6:06-cr-00008-CCL
MEMORANDUM*
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).
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARCUS DEAN,
Defendant - Appellant.
FILED
DEC 21 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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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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