FILED
NOT FOR PUBLICATION JUL 21 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DENNIS DIXEY, No. 07-35782
Petitioner - Appellee, D.C. No. 07-cv-00101-MFM
v.
J. E. THOMAS, Warden, FCI-Sheridan, MEMORANDUM *
Respondent - Appellant.
Appeal from the United States District Court
for the District of Oregon
Malcolm F. Marsh, District Judge, Presiding
Submitted June 29, 2010 **
Before: ALARCÓN, LEAVY, and GRABER, Circuit Judges.
The Warden appeals from the district court’s judgment granting Dennis
Dixey’s 28 U.S.C. § 2241 petition for writ of habeas corpus. We have jurisdiction
under 28 U.S.C. §§ 1291 and 2253, and we reverse and remand.
*
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).
The Warden contends the district court erred by concluding 1) that the
Bureau of Prisons (“BOP”) unlawfully modified Dixey’s restitution schedule by
setting the terms for his participation in the Inmate Financial Responsibility
Program (“IFRP”), and 2) that Dixey’s participation in the IFRP was involuntary.
We held in an intervening case that where the district court has properly set a
restitution repayment schedule as required by the Mandatory Victims Restitution
Act, “the BOP has the authority to encourage voluntary payments in excess of
those required under the court’s judgment by conditioning the receipt of certain
privileges during the term of imprisonment on the inmate’s participation in the
IFRP.” United States v. Lemoine, 546 F.3d 1042, 1050 (9th Cir. 2008). In
Lemoine, we also rejected the petitioner’s argument that his participation in the
IFRP was involuntary, reasoning that he did not have a preexisting right to receive
any of the benefits conditioned on his participation in the IFRP during his
incarceration. Id. at 1046. Because the district court did not have the benefit of
Lemoine at the time of its decision, we reverse and remand for further proceedings
in light of this disposition. See id. at 1050-51.
REVERSED and REMANDED.
2 07-35782