                                                                           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                            NOT FOR PUBLICATION                             JUL 21 2010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.




                                           2                                   08-35648
