from the United States District Court for the Western
District of Kentucky at Louisville. No.
3:14-cr-00067-1-Charles R. Simpson III, District Judge.
M. Schad, FEDERAL PUBLIC DEFENDER, Cincinnati, Ohio, for
M. Cushing, UNITED STATES ATTORNEY'S OFFICE, Louisville,
Kentucky, for Appellee.
Before: COLE, Chief Judge; ROGERS and GRIFFIN, Circuit
Phi Pham appeals his sentence for being a felon in possession
of a firearm under 18 U.S.C. § 922(g)(1). He argues the
district court improperly enhanced his sentence under the
Armed Career Criminal Act, 18 U.S.C. § 924(e)
("ACCA"). Because the enhancement was warranted, we
affirm Pham's sentence.
pleaded guilty to one count of being a felon in possession of
a firearm under § 922(g)(1).
sentencing, the government argued that Pham was subject to
the ACCA. The ACCA imposes a fifteen-year minimum sentence on
anyone convicted as a felon in possession of a firearm who
has "three previous convictions by any court" for a
"serious drug offense" "committed on occasions
different from one another." § 924(e)(1). The
government cited the following three sets of convictions as
qualifying offenses: 1) a 2003 Tennessee conviction for
conspiring to deliver ecstasy; 2) two 2004 federal
convictions for possessing with intent to distribute
methamphetamine and ecstasy, respectively, each based on a
February 12, 2004, sale to a confidential informant at
Pham's residence; and 3) two 2004 federal convictions for
possessing with intent to distribute methamphetamine and
ecstasy, respectively, each based on a February 28, 2004,
search of Pham's residence.
objected to the application of the ACCA based on a further
2004 federal conviction, this one for conspiring to possess
with intent to distribute 50 grams or more of methamphetamine
and ecstasy from October 1, 2003 to February 28, 2004. He
argued that this conviction subsumed the other 2004 offenses
because he committed them to further the conspiracy. Pham
contended this left just two qualifying offenses under the
ACCA-the 2003 Tennessee conviction and the 2004 federal
district court found the ACCA applicable because Pham had
committed the offenses cited by the government on different
dates. Factoring in the fifteen-year minimum required by the
ACCA, the court sentenced Pham to 188 months of imprisonment
and 5 years of supervised release.
asks us to vacate his sentence and remand for resentencing
without the ACCA enhancement under the same theory he offered
at sentencing. This requires us to determine whether the 2004
convictions the district court counted as qualifying offenses
under the ACCA occurred on different occasions under the