                                                                           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                            NOT FOR PUBLICATION                             JUL 21 2010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



DENNIS DIXEY,                                    No. 07-35782

               Petitioner - Appellee,            D.C. No. 07-cv-00101-MFM

  v.

J. E. THOMAS, Warden, FCI-Sheridan,              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 Dennis

Dixey’s 28 U.S.C. § 2241 petition for writ of habeas corpus. We have jurisdiction

under 28 U.S.C. §§ 1291 and 2253, and we reverse and remand.




          *
             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 1) that the

Bureau of Prisons (“BOP”) unlawfully modified Dixey’s restitution schedule by

setting the terms for his participation in the Inmate Financial Responsibility

Program (“IFRP”), and 2) that Dixey’s participation in the IFRP was involuntary.

We held in an intervening case that where the district court has properly set a

restitution repayment schedule as required by the Mandatory Victims Restitution

Act, “the BOP has the authority to encourage voluntary payments in excess of

those required under the court’s judgment by conditioning the receipt of certain

privileges during the term of imprisonment on the inmate’s participation in the

IFRP.” United States v. Lemoine, 546 F.3d 1042, 1050 (9th Cir. 2008). In

Lemoine, we also rejected the petitioner’s argument that his participation in the

IFRP was involuntary, reasoning that he did not have a preexisting right to receive

any of the benefits conditioned on his participation in the IFRP during his

incarceration. Id. at 1046. 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.

      REVERSED and REMANDED.




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