Appeal from the United States District Court for the Western District of Washington. D.C. No. CR-89-00272(TSZ). Thomas S. Zilly, District Judge, Presiding.
Before: Stephen Reinhardt and Stephen S. Trott, Circuit Judges and William W. Schwarzer, Senior District Judge.*fn* Opinion by Judge Schwarzer.
SCHWARZER, District Judge:
Petty appeals from the judgment and sentence imposed following remand by this court. See United States v. Petty, 992 F.2d 887 (9th Cir. 1993); see also United States v. Petty, 982 F.2d 1365 (9th Cir. 1993), amended, 992 F.2d 1015 (1993), cert. denied, 114 S. Ct. 683, 126 L. Ed. 2d 650 (1994); United States v. Petty, Unpublished Opinion, No. 90-30291 (9th Cir. Jan. 7, 1993). We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a) and vacate and remand for resentencing.
On April 29, 1994, in a status conference with counsel for the government and for Petty and his co-defendants, the district court determined that the issues to be resolved in connection with the resentencing were the drug quantities to be charged against Petty and his acceptance of responsibility. Petty's counsel suggested that an evidentiary hearing might be necessary to determine the correct drug quantities. He also informed the court that he intended to argue that Petty's criminal history was overrepresented and that a downward departure would be appropriate. The court set a briefing schedule and directed the probation officer to file his report by May 10, 1994. Sentencing, set for May 26, 1994, was later continued to July 1, 1994.
On May 11, 1994, the probation officer submitted a resentencing memorandum advising that Petty qualified for an acceptance of responsibility adjustment. On June 29, 1994, Petty's counsel wrote the court requesting a thirty-day continuance of the sentencing hearing to enable counsel to seek vacation of a California DWI conviction which raised Petty's criminal history category. He advised that the government "is in total agreement with this request for continuance, because resolution of the validity of Mr. Petty's prior DWI conviction will significantly limit the issues left to be resolved at the resentencing hearing." Alternatively, he asked for a one week continuance to prepare a sentencing memorandum. On June 30, 1994, the court informed the parties that it was not inclined to grant a continuance.
On July 1, 1994, immediately before the resentencing hearing, government counsel presented a proposed stipulation to Petty's counsel. It provided that the parties agreed on the quantity of cocaine charged to Petty (fifteen to fifty kilograms), that the government agreed not to oppose a reduction for acceptance of responsibility and not to appeal an adverse determination, that the parties would not relitigate Petty's role in the offense, and that the government would not object to reconsideration of appellant's criminal history category. It also provided that "in view of this stipulation both [parties] agree to waive any right to further appeal." Both counsel as well as Petty signed the stipulation before the hearing.
Also on that day, immediately before the commencement of the hearing, the probation officer gave Petty's counsel a second resentencing memorandum dated May 20, 1994. That memorandum reviewed the criminal history calculation and explained the probation officer's prior decision not to recommend a downward departure on the basis of an "uncounted 1979 incident concerning cocaine possession." At the hearing, the following colloquy occurred between the court and Petty's counsel with respect to that memorandum:
THE COURT: . . . The Court has received and reviewed in connection with this resentencing probation's report to this Court dated May 11th and a memorandum from probation dated May 20. Did counsel and the defendant have an opportunity to review those two memoranda?
MR. TROBERMAN: Your Honor, I had reviewed the first that was mailed to me quite some time ago. I just received the second as I entered the courtroom today.
THE COURT: Well, all right. You have received it and reviewed it?
MR. TROBERMAN: I have, Your Honor.
Counsel then renewed his request for continuance of the sentencing hearing, pointing out that his associate was working on a writ to vacate the California DWI conviction, which increased defendant's criminal history calculation from level I to level III. He added that on the assumption that a continuance would be granted, he had not prepared for the hearing and had not yet submitted a brief in support of his argument for a lower history category. Government counsel said that he "shared [defense counsel's] confusion on the unwillingness of the Court to further extend the matter to permit the California court to resolve [the DWI conviction] issue." He added, "I don't ...