NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
SEP 12 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 15-30160
Plaintiff-Appellee, D.C. No.
2:14-cr-00166-RMP-1
v.
TIMOTHY BINFORD, MEMORANDUM*
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 15-30166
Plaintiff-Appellee, D.C. No.
2:00-cr-00099-RMP-1
v.
TIMOTHY BINFORD,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Rosanna Malouf Peterson, District Judge, Presiding
Argued and Submitted August 30, 2016
Seattle, Washington
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: GOODWIN, SCHROEDER, and McKEOWN, Circuit Judges.
Timothy Binford appeals his conviction and sentence for being a felon-in-
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The jury convicted
Binford under both subsections (1) and (3) of that statute, but the district court
granted Binford’s motion for judgment of acquittal as to the § 922(g)(3), user-in-
possession, conviction. At sentencing, the district court found that Binford’s prior
three convictions qualified as predicate offenses under the Armed Career Criminal
Act (“ACCA”), 18 U.S.C. § 924(e).
With respect to sentencing, the government has conceded that one of the
prior convictions, the state robbery conviction, did not qualify as a predicate
ACCA offense and has now commendably agreed that the sentence must be
vacated.
We therefore deal only with the challenge to the conviction. Binford
contends that the indictment should have been dismissed because the government
improperly proceeded on the basis of alternative firearm possession theories. The
original indictment charged only felon-in-possession. The district court ruled that,
under the original indictment, the evidence of drug paraphernalia found with the
gun was inadmissible. The government then added an alternative allegation,
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within the same count, of user-in-possession. Binford contends that the
amendment was impermissible, and that the conviction must be reversed. His
position lacks support.
There was no unfair surprise or vindictiveness. The government telegraphed
its intent to obtain a superseding indictment if analysis results showed that the
paraphernalia in the backpack was connected to drugs. The parties had briefed the
issue. The evidence may not have been necessary for the government to prove
felon-in-possession, but the district court did not err in admitting it as relevant to
the user-in-possession alternative.
Moreover, the superseding indictment resulted in no prejudice to Binford.
The evidence that he was a felon in possession of a firearm was overwhelming, and
the superseding indictment did not lead to any additional counts or convictions.
The jury convicted Binford under both subsections 922(g)(1) and (3), but the
district court granted Binford’s motion for judgment of acquittal as to the §
922(g)(3), user-in-possession, conviction. Binford’s reliance on cases in which the
same conduct was charged in multiple counts is therefore misplaced. See, e.g.,
United States v. Schmidt, No. 08-40031-01-RDR, 2008 WL 4489787, at *8 (D.
Kan. Sept. 29, 2008); United States v. McCall, No. CR05-4130-MWB, 2006 WL
1071771, at *3 (N.D. Iowa Apr. 24, 2006).
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The judgment of conviction is AFFIRMED, the sentence is VACATED
and the case is REMANDED for resentencing.
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