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NOT FOR PUBLICATION JUL 21 2010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
GEORGE ANTHONY WEST, No. 08-35648
Petitioner - Appellee, D.C. No. 3:07-cv-01440-MFM
v.
J. E. THOMAS, Warden, 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 George
Anthony West’s 28 U.S.C. § 2241 petition for writ of habeas corpus. We have
jurisdiction under 28 U.S.C. §§ 1291 and 2253. We affirm in part and reverse in
part.
*
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 that the Bureau
of Prisons (“BOP”) lacked authority to create a payment plan for West during the
period of his incarceration because the sentencing court did not set a schedule of
restitution payments in the written judgment. The Warden’s contention is
unpersuasive because the sentencing court improperly delegated its scheduling
duties to the BOP by not setting a repayment schedule. See United States v.
Gunning, 401 F.3d 1145, 1150 (9th Cir. 2005). Thus, we affirm the district court
as to this issue.
The Warden further contends the district court erred by concluding that
West’s participation in the Inmate Financial Responsibility Program (“IFRP”) was
involuntary because he participated in it only to avoid a loss of benefits. This
contention is well-taken because we recently rejected a petitioner’s contention that
his participation in the IFRP was involuntary. See United States v. Lemoine,
546 F.3d 1042, 1046 (9th Cir. 2008). 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.
AFFIRMED in part; REVERSED and REMANDED in part.
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