
    UNITED STATES of America, Plaintiff-Appellee, v. David K. ISHAM, Defendant-Appellant.
    No. 04-8107.
    United States Court of Appeals, Tenth Circuit.
    May 16, 2005.
    David A. Kubicheck, Asst. U.S. Attorney, Office of the U.S. Attorney, Casper, WY, for Plaintiff-Appellee.
    Thomas A. Fleener, Asst. Fed. Pub. Def., Office of the Federal Public Defender, Cheyenne, WY, for Defendant-Appellant.
    Before HENRY, McKAY, and HARTZ, Circuit Judges.
   ORDER

McKAY, Circuit Judge.

During oral argument, with exceptional and commendable candor, counsel for the government conceded that the evidence in this case is insufficient to support Defendant’s conviction of being in actual physical control of a motor vehicle while under the influence of alcohol pursuant to 36 C.F.R. § 4.23(a)(1) and moved to remand the case to the district court with directions to dismiss the charge.

We GRANT the government’s motion and REMAND this case to the district court with directions to dismiss the charge for violation of 36 C.F.R. § 4.23(a)(1). 
      
       Defendant did not appeal his conviction for firearms, and it, therefore, stands.
     