United States of America, Plaintiff-appellee, v. Joseph Heinze, Defendant-appellant, 124 F.3d 213 (9th Cir. 1997)

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