United States v. James H. Gallaher

29 F.3d 635 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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 H. GALLAHER, Defendant-Appellant. No. 92-30505. United States Court of Appeals, Ninth Circuit. Submitted Nov. 3, 1993. * Filed Nov. 23, 1993. Withdrawn May 16, 1994. Decided May 17, 1994. ORDER The memorandum disposition filed November 23, 1993 is withdrawn. It is ordered the attached memorandum disposition be filed. 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 its order that the sentence run consecutively to an unrelated, undischarged federal sentence. We vacate and remand for resentencing. I. 3 The district court determined that Gallaher's offense level was 16, and that his criminal history category was VI, resulting in an…