United States v. Timothy Binford

MEMORANDUM

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 Bin-ford’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…