                                                                           FILED
                            NOT FOR PUBLICATION                             JAN 26 2012

                                                                        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. 11-50210

               Plaintiff - Appellee,             D.C. No. 2:88-cr-00732-RSWL-1

  v.
                                                 MEMORANDUM *
GERALD MARK WILLIAMS,

               Defendant - Appellant.



                   Appeal from the United States District Court
                       for the Central District of California
                 Ronald S.W. Lew, Senior District Judge, Presiding

                       Argued and Submitted January 13, 2012
                                Pasadena, California


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




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
            The Honorable Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.
      Defendant-Appellant Gerald Mark Williams (“Williams”) appeals the

district court’s revocation of his supervised release on the ground of lack of

jurisdiction. We reverse and remand.

      In the proceedings below, both the government and the district court appear

to have acted based on the erroneous assumption that a December 22, 2003, bench

warrant stayed Williams’s term of supervised release pursuant to 18 U.S.C. §

3583(i). Section 3583(i) does not toll a defendant’s term of supervised release;

rather, it extends the district court’s jurisdiction “beyond the expiration of the term

of supervised release for any period reasonably necessary for the adjudication of

matters arising before its expiration if, before its expiration, a warrant or summons

has been issued on the basis of an allegation of such a violation.” Absent tolling, §

3583(i) cannot provide a basis for the district court’s exercise of jurisdiction to

revoke supervised release based on Williams’s January 31, 2011, conviction.

      Absent tolling, Williams’s supervised release expired on June 17, 2005, five

and one-half years prior to the January 31, 2011, conviction that served as the basis

of the district court’s revocation. However, under the law of this Circuit, a

defendant’s term of supervised release is tolled while the defendant is in fugitive

status. See United States v. Murguia-Oliveros, 421 F.3d 951, 954 (9th Cir. 2005).

The government argues for the first time on appeal that, due to two periods of


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fugitive tolling, Williams’s supervised release had not expired prior to the violation

upon which the district court based its revocation. For the purposes of considering

this argument, as well as considering whether it has been waived, we grant

Williams’s request for judicial notice of a March 9, 2009, detainer lodged against

him, as well as the government’s request for judicial notice of the abstract of

judgment in the California case People v. Allen Arnold Stewart, No. A06603638

(Cal. Super. Ct., filed Mar. 9, 2011), and the criminal docket for the district court

proceedings in United States v. Gerald Mark Williams, No. 3:11-mj-00850-BLM-1

(S.D. Cal., terminated Mar. 15, 2011).

      We “may affirm on any ground supported by the record even if it differs

from the rationale of the district court.” Nat’l Wildlife Fed’n v. U.S. Army Corps of

Eng’rs, 384 F.3d 1163, 1170 (9th Cir. 2004) (internal quotation marks omitted).

To support its fugitive tolling argument, the government relies upon factual

statements contained in pre-sentence reports drafted by Williams’s probation

officer. Williams disputes these factual contentions. Because the fugitive tolling

issue was not briefed and argued below, and because we have no factfinding by the

district court, we cannot definitively determine Williams’s supervised release

status for the two disputed periods during which he was either deported or a

fugitive.


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       “Issues not presented to a district court generally cannot be heard on

appeal.” Walsh v. Nev. Dep’t of Human Res., 471 F.3d 1033, 1037 (9th Cir. 2006);

see also United States v. Monreal, 301 F.3d 1127, 1131 (9th Cir. 2002) (waiver of

tolling issue); Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir. 2001) (same). However,

a party’s failure to raise an argument in the district court may be excused if

“necessary to prevent manifest injustice.” Llamas v. Butte Cmty. Coll. Dist., 238

F.3d 1123, 1127 (9th Cir. 2001) (internal quotation marks omitted). Because

Williams’s own actions helped create the ambiguities in the record concerning the

periods for which Williams’s supervised release status is disputed, we remand to

the district court for evidentiary development and consideration of the issue of

fugitive tolling.

       Williams also argues that the district court violated his Sixth Amendment

right to counsel by forcing him to choose, at his revocation hearing, between

self-representation and representation by an appointed attorney with whom he had

expressed dissatisfaction in open court. We are concerned that Williams may have

been improperly pressured into representing himself during the revocation hearing.

However, since it appears that Williams will be represented at any hearings on

remand, we do not address that question.

       REVERSED and REMANDED.


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