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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