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United States v. Pham

United States Court of Appeals, Sixth Circuit

October 3, 2017

United States of America, Plaintiff-Appellee,
v.
Long Phi Pham, Defendant-Appellant.

         Appeal 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.

         ON BRIEF:

          Kevin M. Schad, FEDERAL PUBLIC DEFENDER, Cincinnati, Ohio, for Appellant.

          Terry M. Cushing, UNITED STATES ATTORNEY'S OFFICE, Louisville, Kentucky, for Appellee.

          Before: COLE, Chief Judge; ROGERS and GRIFFIN, Circuit Judges.

          OPINION

          COLE, Chief Judge.

         Long 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.

         I. BACKGROUND

         Pham pleaded guilty to one count of being a felon in possession of a firearm under § 922(g)(1).

         At 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.

         Pham 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 conspiracy conviction.

         The 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.

         Pham 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 statute.

         II. ...


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