Unpublished Disposition, 905 F.2d 1541 (9th Cir. 1990)

No. 89-10197.

United States Court of Appeals, Ninth Circuit.

Before TANG and BEEZER, Circuit Judges, and STEPHENS^* , District Judge.

MEMORANDUM^** 

Carolyn Henderson ("Henderson") appeals her sentences on various drug related charges. We vacate her sentences and remand for resentencing.

DISCUSSION

1. Federal Rule of Criminal Procedure 32(c) (3) (D)

Henderson challenged the presentence report in seven ways. The following four challenges do not concern factual inaccuracies and hence do not fall within the protections of Rule 32(c) (3) (D):

(1) Henderson complained about the inclusion of details of the entire conspiracy in the presentence report because she did not plead guilty to conspiracy.

(2) Henderson complained that in the financial condition section the report failed to reflect the length of her detention prior to her release on bail.

(3) Henderson requested that the presentence report include a description of the original plea offer.

(4) Henderson challenged the parole guideline estimate because she claimed her role was peripheral.

In one instance, the district court complied with Rule 32:

Henderson challenged the probation officer's evaluation in the report of her role in the conspiracy.

In the remaining two challenges, the district court did not comply with Rule 32(c) (3) (D):

(1) Henderson challenged the presentence report's description of a confidential informant's attempt to purchase cocaine in early 1986 which indicates he "contacted" Henderson. Henderson claimed that the report was misleading because she evaded the informant's attempts to contact her.

(2) Henderson complained about the accuracy of a description of a phone call in which she allegedly said, "The milk is in." Thus, a remand for complete resentencing is necessary to comply with Rule 32. See United States v. Fernandez-Angulo, 897 F.2d 1514, 1516 (9th Cir.) (en banc).

2. Reduction in Sentence for Time Served in Halfway House.

Because we conclude Henderson's case must be remanded for complete resentencing, we need not address this issue. However, we note this court has decided that in some cases the Bureau of Prisons must give credit for time served in a halfway house. See Brown v. Rison, 895 F.2d 533, 536 (9th Cir. 1990).

VACATED and REMANDED.¹