124 F3d 213 United States of America v. Heinze

124 F.3d 213

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
Joseph HEINZE, Defendant-Appellant.

No. 96-10408.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 8, 1997
Decided Sept. 11, 1997.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Appeal from the United States District Court for the District of Nevada, No. CR-89-00167-PMP; Philip M. Pro, District Judge, Presiding.

Before: FLETCHER, BOOCHEVER, and REINHARDT, Circuit Judges.

MEMORANDUM*

Joseph Heinze appeals the district court's revocation of his term of supervised release and sentence of imprisonment for 24 months. We remand to the district court because it is unclear whether at the revocation hearing it found conduct that would warrant sentencing Heinze for a Class B violation of supervised release. See U.S.S.G. § 7B1.1 (a)(2). A Class B violation occurs when the defendant commits "conduct constituting any other federal, state, or local offense punishable by a term of imprisonment exceeding one year" while under a term of supervised release. Although the petition for revocation of supervised release alleged conduct that would warrant a Class B violation, we cannot readily determine from the transcript of the hearing whether the district court actually found such conduct. At the hearing, the district court and the defendant both referred to Heinze's violation as a misdemeanor. A misdemeanor warrants only a finding of a Class C violation. See U.S.S.G. § 7.B1.1(a)(3). If the district court did find conduct constituting a Class B violation or does so after a hearing, the sentence should stand. Otherwise, Heinze must be resentenced as a Class C offender.

REMANDED


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*

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3