United States v. David Keith Johnston

976 F.2d 738 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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-Appellant, v. David Keith JOHNSTON, Defendant-Appellee. No. 91-10291. United States Court of Appeals, Ninth Circuit. Submitted Feb. 13, 1992. * Decided Aug. 24, 1992. Before GOODWIN, FARRIS and POOLE, Circuit Judges. ORDER The memorandum filed May 6, 1992 is ordered WITHDRAWN. Before GOODWIN, FARRIS and POOLE, Circuit Judges. 1 MEMORANDUM ** 2 The government timely appeals a guideline sentence of 137 months imposed following a guilty plea to one count of a four count indictment. Johnston pled guilty to aviation smuggling in exchange for both a dismissal of the remaining three counts and a stipulation that the sentence would not exceed 188 months. The presentence investigation uncovered two prior controlled substance convictions which placed Johnston in a career offender status mandating a sentencing range from 168 months to 210 months. We vacate the sentence and remand for…