United States v. Johnny Lynn Old Chief

85 F.3d 638 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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. Johnny Lynn OLD CHIEF, Defendant-Appellant. No. 95-30283. United States Court of Appeals, Ninth Circuit. Submitted April 30, 1996. * Decided May 6, 1996. Before: BROWNING, REINHARDT, and FERNANDEZ, Circuit Judges. 1 MEMORANDUM ** 2 Johnny Lynn Old Chief appeals his 180-month sentence imposed following remand for resentencing. Old Chief contends that the district court improperly imposed a 57-month upward departure. 1 We have jurisdiction under 28 U.S.C. § 1291 , and we vacate and remand for resentencing. 3 We review the district court's decision to depart upward under the three-part test of United States v. Lira-Barraza, 941 F.2d 745 (9th Cir.1991) (en banc). We review: (1) de novo whether the district court had legal authority to depart; (2) for clear error the factual findings supporting the existence of an aggravating circumstance; and (3) for reasonableness…