                           NOT FOR PUBLICATION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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