OpenJurist

94 F3d 650 Bowser v. Crabtree

94 F.3d 650

Charles S. BOWSER, Petitioner-Appellant
v.
Joseph CRABTREE, Warden, Federal Correction Institution,
Sheridan, Oregon Respondent-Appellee.

No. 96-35461.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 15, 1996.*
Decided Aug. 20, 1996.
Sur Petition for Panel Rehearing Oct. 29, 1996.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Before: ALDISERT**, PREGERSON and T.G. Nelson, Circuit Judges.

ORDER

The judgment of the district court is AFFIRMED. However, because this case is now ripe for consideration on the merits, we REMAND so that the district court may consider the issue of entitlement to sentence reduction.

BEFORE: ALDISERT, PREGERSON and T.G. NELSON, Circuit Judges.

SUR PETITION FOR PANEL REHEARING

1

Oct. 29, 1996.

2

Before us for decision is a petition for panel rehearing. When this case was previously before us, on August 20, 1996, we affirmed the district court's judgment that the petition for habeas corpus relief was not ripe because Appellant had not completed the drug-treatment program at the time he filed in district court. By expedited Order we remanded the proceedings to the trial court. Pending our disposition of that appeal, Appellant completed the drug-treatment program in which he was enrolled. Prior to our remanding the case, the district court on August 1, 1996, entered a Stipulated Order with the parties consent.

3

The Stipulated Order stated that Bowser was convicted of a non-violent offense, had successfully completed a substance-abuse program and was, therefore, eligible for a one-year sentence reduction prusuant to § 3621(e)(2)(B). The Order directed the Bureau of Prisons to reduce Bowser's sentence by 12 months, thereby making him immediately eligible for transfer to a Community Corrections Center in preparation for the end of his sentence. See B.O.P. P.S. 5330.10, c. 7.3; 18 U.S.C. § 3624(c). The government preserved its right to appeal the district court's disposition of this case, presumably depending on our decision in the appeal which we have now decided in Downey v. Crabtree, No. 96-35471, --- F.3d --- (9th Cir.1996).

4

The government has not appealed the district court's entry of the Stipulated Order and the district court's action regarding that order is not precisely before this court for review. In the interest of judicial economy in this court and the district court, however, we utilize this vehicle of the petition for panel rehearing to decide that the merits of this case are completely governed by our decision in Downey.

5

Accordingly, we AFFIRM the Stipulated Order of the district court granting Bowser the requested relief solely on the basis of our decision in Downey. Conceding the unusual procedural nature of this Order, we afford the government all opportunity to preserve all rights to challenge our decision here as well as that of the district court.

*

The Honorable Ruggero J. Aldisert, Senior Circuit Judge, United States Court of Appeals for the Third Circuit, sitting by designation

**

The panel has unanimously found this case suitable for decision without oral argument. Fed.R.App.P. 34(a) and Ninth Circuit Rule 34-4