United States v. David Lee Foster

28 F.3d 109 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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. David Lee FOSTER, Defendant-Appellant. No. 93-50402. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 4, 1994. Decided May 23, 1994. Before: HALL, LEAVY, and FERNANDEZ, Circuit Judges. 1 MEMORANDUM * 2 David Lee Foster appeals from his sentence following conviction on one count of possession with intent to distribute cocaine, arguing that the district court erred by sentencing him as a career offender because one of Foster's prior state criminal convictions upon which the district court relied in imposing sentence was not a drug offense for purposes of federal sentencing law. For the reasons which follow, we vacate the sentence and remand for resentencing. 3 The United States Sentencing Guidelines ("Guidelines" or "USSG") provide that a defendant convicted in federal district court of a controlled substance offense who "has at least two…