                                                                               FILED
                           NOT FOR PUBLICATION
                                                                               AUG 25 2020
                     UNITED STATES COURT OF APPEALS                        MOLLY C. DWYER, CLERK
                                                                             U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 19-30150

              Plaintiff-Appellee,                D.C. No. 6:06-cr-00008-CCL-1

 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 July 6, 2020**
                                Seattle, Washington

Before: CLIFTON and M. SMITH, Circuit Judges, and DONATO,*** District
Judge.

Dissent by Judge DONATO.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 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 James Donato, United States District Judge for the
Northern District of California, sitting by designation.
      Marcus Dean appeals the sentence imposed upon his latest revocation of

supervised release. We affirm.

      In 2007, Dean was sentenced to three concurrent ten-year prison terms under

his three counts of conviction, followed by supervised release for life under Counts

1 and 2 and six years under Count 3. He began supervised release in March 2015.

Since then, it has been revoked five times. See United States v. Dean, 707 Fed.

App’x 915 (2017). While serving his fifth term of supervised release in June 2019,

Dean admitted to possession and use of methamphetamine, which resulted in

mandatory revocation. Dean was sentenced to a total of 33 months, made up of

three consecutive 11-month prison terms, followed by lifetime supervised release

under Counts 1 and 2 and 50 months of supervised release under Count 3.

      In this appeal, Dean argues that the district court erred in sentencing him on

three counts, where, he claims, he was serving a term of supervised release for only

one count at the time of his fifth revocation. Dean does not seek vacation and

resentencing but instead requests an order discharging him from prison after 24

months (the statutory imprisonment term for revocation of a term of supervised

release for a Class C felony under 18 U.S.C. § 3583(e)), with no supervised release

to follow. The government responds that Dean’s 33-month cumulative sentence is

less than the 36-month statutory maximum imprisonment term that Dean faced on


                                          2
his Class B felonies. 18 U.S.C. § 3583(e). Because Dean did not raise his

objections at the time of sentencing, we review for plain error. See United States v.

Wang, 944 F.3d 1081, 1085 (9th Cir. 2019).

      The record does not support Dean’s premise that his fifth term of supervised

release was lighter than previous terms. On Dean’s fourth revocation, following

his admission to using heroin only two days after his fourth term of supervised

release began, the district court issued a general sentence of 11 months

imprisonment followed, as stated by the court, “again,” by lifetime supervised

release. The district court did not specify the underlying counts on which the

fourth revocation sentence was based.1 There was, however, no indication that the

district court intended to reduce Dean’s sentence in any way, not surprising given

that Dean had violated his conditions of supervised release only two days after that

term had started. Where no contrary interpretation was argued below, the district

court did not plainly err in effectively construing its fourth revocation sentence as a




      1
             Though he appealed from that judgment, Dean did not challenge the
reimposition of supervised release or the general nature of his sentence. See Dean,
707 Fed. App’x at 915.
                                           3
general sentence for all three counts, rather than a specific sentence for only one,

and by imposing a specific revocation sentence as to all three counts.2

      Even if we adopted Dean’s and the dissent’s construction of the fourth

revocation sentence, there has been no violation of Dean’s substantial rights, as

required to obtain relief on plain error review. Dean’s 50-month term of

supervised release on Count 3 runs concurrently with the lifetime terms of

supervised release on Counts 1 and 2. Thus, Dean faced no greater term of

supervised release than would otherwise be imposed.

      Finally, despite arguing otherwise in his briefing, Dean now acknowledges

that his three offenses were all Class B felonies. Because the district court could

impose a maximum 36-month imprisonment term for the revocation of a term of

supervised release for any Class B felony, 18 U.S.C. § 3583(e), the total sentence

of 33 months imprisonment similarly would not affect Dean’s substantial rights

even if his construction of the fourth revocation sentence were adopted. Dean does

not raise and thus has waived any other challenges to the district court’s sentence,


      2
              We do not hold that the district court’s fourth revocation sentence had
“imposed lifetime supervised release on all three counts,” as the dissent argues.
While a general sentence of lifetime supervised release on all three counts would
include three concurrent supervised release terms, see 18 U.S.C. § 3624(e), capped
at a “lifetime,” a specific “lifetime” term need not be assigned to all three counts.
See, e.g., United States v. Batimana, 623 F.2d 1366, 1370-71 (9th Cir. 1980)
(discussing our “general sentence doctrine”).
                                           4
including the Carty error that the dissent asserts on Dean’s behalf. United States v.

Torres, 911 F.3d 1253, 1257 n.3 (9th Cir. 2016) (“We review only issues which are

argued specifically and distinctly in a party’s opening brief. We will not

manufacture arguments for an appellant, and a bare assertion does not preserve a

claim . . . .” (citation omitted)).

       AFFIRMED.




                                          5
United States of America v. Dean, 19-30150                                FILED
                                                                          AUG 25 2020
DONATO, District Judge, dissenting:                                   MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS




      In my view, the majority opinion adds an unwarranted twist in this already

convoluted case. Dean was sentenced for violating the district court’s June 2017

criminal judgment, which the majority refers to as the fourth revocation sentence.

On its face, that judgment imposed on Dean a single supervised release term of

“lifetime,” without tethering that to any of the three counts for which Dean was

originally convicted and sentenced. That judgment was never appealed, and the

government aptly acknowledged that “we are stuck with it.”

      The unspecified, single lifetime term of supervised release recorded in the

June 2017 judgment could not have been a general sentence imposing a lifetime

supervised release term on each of Dean’s three counts of conviction, as the

majority holds. The government itself conceded that the district court could not

have imposed lifetime supervised release on all three counts, because that would

have exceeded the permissible term of supervised release for at least one of the

counts.

      In United States v. Batimana, 623 F.2d 1366, 1370 (9th Cir. 1980), we noted

that “[t]his court has on several occasions expressed disapproval of the failure of

the district court to impose separate sentences for each count of a multiple count

                                          1
indictment.” Batimana, 623 F.2d at 1370 (citations omitted). While we went on to

apply the general sentence doctrine, which permits us to uphold an unspecified

sentence “if the conviction is sustainable on any count of the indictment, and the

general sentence does not exceed the maximum sentence that could have been

imposed on that count,” that principle is unhelpful to us here. Id. at 1370-71.

Batimana might have helped us affirm the single lifetime term of supervised

release on Dean’s fourth revocation if the fourth revocation sentence had been

appealed. It does not allow us now, in reviewing his fifth revocation sentence, to

multiply the single term of supervised release imposed in the fourth revocation

sentence into three. Consequently, my view is that the district court imposed only

one term of lifetime supervised release on Dean in its June 2017 judgment. Even if

that was not intentional, as may be the case, the judgment stands and is not before

us for review, or alteration, in this appeal.

      Under the standard of review applied by the majority, it was plain error for

the district court to impose three separate 11-month custodial sentences for Dean’s

two admitted violations of supervised release. It was also error to impose three

separate terms of supervised release, two for Dean’s lifetime and one for 50

months. Three sentences on two violations of one term of supervised release does

not add up. We are not helped by the fact that the district court provided virtually




                                            2
no explanation of its sentencing decision, which is an error in itself. United States

v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc).

      Dean received three separate terms of imprisonment when he should only

have received two, at most. That is a violation of Dean’s substantial rights. The

government’s argument that the sentence should be affirmed because the three 11-

month terms are still cumulatively less than the 36-month statutory limit under 18

U.S.C. § 3583(e) is a non-sequitur from the June 2017 judgment. The argument is

also not consistent with the fact that the district court referred only to the United

States Sentencing Guidelines, and not to the statute, at Dean’s sentencing.

      Dean’s substantial rights were further violated by the district court’s

imposition of three separate terms of supervised release to follow his time in

custody. While it is true that none of the terms could increase the total length of

time for which Dean will be on supervised release, i.e., his lifetime, having three

concurrent terms instead of one means that a single future violation could result in

three separate terms of custody that could be set to run consecutively.

      I would find that these errors seriously affect the fairness, integrity, and

public reputation of judicial proceedings. See United States v. Wang, 944 F.3d

1081, 1085 (9th Cir. 2019) (quoting United States v. Hammons, 558 F.3d 1100,

1103 (9th Cir. 2009)). For that reason, in my opinion the district court’s sentence

should have been vacated and Dean resentenced. I respectfully dissent.


                                           3
