UNITED STATES of America, Plaintiff-Appellee, v. Robert M. PETTY, Defendant-Appellant

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 denied, -U.S. -, 114 S.Ct. 683 , 126 L.Ed.2d 650 (1994); United States v. Petty, Unpublished Opinion, No. 90-30291, 1993 WL 3067 (9th Cir. Jan. 7, 1993).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.

THE PROCEEDINGS BELOW

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 evi-dentiary 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,…