United States v. Jimmie Benally

960 F.2d 153 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. UNITED STATES of America, Plaintiff-Appellee, v. Jimmie BENALLY, Defendant-Appellant. No. 91-10159. United States Court of Appeals, Ninth Circuit. Submitted Feb. 13, 1992. * Decided April 20, 1992. Before GOODWIN, FARRIS and POOLE, Circuit Judges. 1 MEMORANDUM ** 2 In sentencing Benally on Count I, the district court relied on: (1) evidence of other criminal conduct contained in the Presentence Report and (2) FBI reports describing additional instances of sexual contact with minors. The government concedes that the court abused its discretion in considering conduct relating to dismissed charges. See United States v. Faulkner, Nos. 89-10338, 89-10339, Slip.Op. 17019, 17029 (9th Cir. Dec. 24, 1991); United States v. Castro-Cervantes, 927 F.2d 1079, 1082 (1990). Although these cases were decided under the Sentencing Guidelines, the reasoning is equally applicable to non-guideline cases. The government also concedes…