United States v. James L. Gallaher

10 F.3d 808 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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. James L. GALLAHER, Defendant-Appellant. No. 92-30505. United States Court of Appeals, Ninth Circuit. Submitted Nov. 3, 1993. * Decided Nov. 23, 1993. Before: TANG, FARRIS and RYMER, Circuit Judges. 1 MEMORANDUM ** 2 James H. Gallaher appeals his sentence for convictions of two counts of abusive sexual contact, in violation of 18 U.S.C. Sec. 2244 (a)(1). Gallaher challenges the district court's 13 month upward departure, and the court's order that the sentence run consecutive to an unrelated, undischarged sentence. We vacate and remand for resentencing. I. 3 The district court determined that the appellant's offense level was 16, and that his criminal history category was VI, resulting in a sentencing range of 46-57 months. However, because the appellant's criminal history points totaled 20, and because he had numerous tribal and state court convictions that were not…