NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
DEC 21 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 13-56477
Plaintiff-Appellee, D.C. Nos.
2:99-cv-02201-DDP-MLG
v. 8:93-cr-00098-LHM
BRIAN KEITH BRIM,
MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding
Submitted December 6, 2016**
Pasadena, California
Before: D.W. NELSON and OWENS, Circuit Judges, and KORMAN,*** District
Judge.
*
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 Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
Brian Keith Brim, a federal prisoner, appeals from the district court’s denial
of his Federal Rule of Civil Procedure 60(b) motion for reconsideration of his 28
U.S.C. § 2255 motion to vacate his sentence, which was imposed following his
conviction for conspiracy to manufacture phencyclidine in violation of 21 U.S.C.
§§ 841(a)(1), 846. The only issue certified for appeal is whether Brim’s sentence
was ambiguous because it imposed both a term of life imprisonment and ten years
supervised release if Brim was released.1 As the parties are familiar with the facts,
we do not recount them here. We affirm.
There is no ambiguity or contradiction in the district court sentencing Brim
to both life imprisonment and supervised release if released. Brim’s sentence was
required by the sentencing statute, and was supported by the Sentencing
Guidelines. See 21 U.S.C. § 841(b)(1)(A) (providing for “a mandatory term of life
imprisonment” if a “person commits a violation . . . after two or more prior
convictions for a felony drug offense” and that “any sentence under this
subparagraph shall . . . if there was such a prior conviction [for a felony drug
1
The government questions the district court’s jurisdiction to raise the
alleged ambiguity in Brim’s sentence sua sponte under Rule 60(b)(6) in its order
granting a certificate of appealability (“COA”). However, we need not reach that
question. See Phelps v. Alameda, 366 F.3d 722, 726 (9th Cir. 2004) (“[M]erits
panels are not required to examine allegedly defective COAs in the face of
jurisdictional challenges.”).
2
offense], impose a term of supervised release of at least 10 years in addition to
such term of imprisonment”); U.S.S.G. § 5D1.1 (providing that “[t]he court shall
order a term of supervised release to follow imprisonment . . . when required by
statute . . . or . . . when a sentence of imprisonment of more than one year is
imposed”).
Moreover, it is not uncommon for a defendant to be sentenced to both life
imprisonment and supervised release. See, e.g., United States v. Mitchell, 568 F.3d
1147, 1148 (9th Cir. 2009) (noting that the district court sentenced the defendant
“to a mandatory term of life imprisonment without release and ten years of
supervised release”); see also United States v. Vance, 764 F.3d 667, 676 (7th Cir.
2014) (noting that “conditions of supervised release are routinely imposed in
life-sentence cases”); United States v. Rodríguez-Berríos, 573 F.3d 55, 60 n.1 (1st
Cir. 2009) (noting that “[t]erms of supervised release following life sentences are
. . . not uncommon”). Contrary to Brim’s contention, the sentencing transcript
does not show that the district court was confused when imposing his sentence.
AFFIRMED.
3