F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 16 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 04-8107
v. (D.C. No. 04-MJ-14-ABJ)
DAVID K. ISHAM, (D. Wyo.)
Defendant - Appellant.
ORDER
Before HENRY, McKAY, and HARTZ, Circuit Judges.
During oral argument, with exceptional and commendable candor, counsel
for the government conceded that the evidence in this case is insufficient to
support Defendant’s conviction of being in actual physical control of a motor
vehicle while under the influence of alcohol pursuant to 36 C.F.R. § 4.23(a)(1)
and moved to remand the case to the district court with directions to dismiss the
charge. *
We GRANT the government’s motion and REMAND this case to the
district court with directions to dismiss the charge for violation of 36 C.F.R.
*
Defendant did not appeal his conviction for firearms, and it, therefore,
stands.
§ 4.23 (a)(1).
Entered for the Court
Monroe G. McKay
Circuit Judge
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