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United States v. Phillips

United States Court of Appeals, Ninth Circuit

July 6, 2016

United States of America, Plaintiff-Appellee,
v.
Lavelle Phillips, Defendant-Appellant.

          Submitted December 7, 2015 [*] San Francisco, California

         Appeal from the United States District Court for the Eastern District of California Morrison C. England, Jr., Chief District Judge, Presiding D.C. Nos. 2:12-cr-00292-MCE-1 2:13-cr-00398-MCE-1

          Douglas Beevers, Assistant Federal Defender; Heather E. Williams, Federal Defender; Federal Defenders of the Eastern District of California, Sacramento, California; for Defendant-Appellant.

          Jason Hitt, Assistant United States Attorney; Camil A. Skipper, Appellate Chief; Office of the United States Attorney, Sacramento, California; for Plaintiff-Appellee.

          Before: Alex Kozinski, Jay S. Bybee, and Morgan Christen, Circuit Judges.

         SUMMARY[**]

         Criminal Law

         The panel affirmed the district court's judgments in cases in which the defendant was convicted and sentenced following his guilty pleas to possession of drugs with intent to distribute and being a felon in possession of a firearm.

         The panel held that the district court committed no procedural error at sentencing.

         The panel held that United States v. Vongxay, 594 F.3d 1111 (9th Cir. 2010), which held that felons are categorically different from the individuals who have a fundamental right to bear arms, forecloses the defendant's argument that it violates the Second Amendment for misprision of felony, a non-violent and purely passive crime, to serve as a predicate for his felon-in-possession conviction under 18 U.S.C. § 922(g)(1). The panel wrote that there are good reasons to be skeptical of the constitutional correctness of categorical, lifetime bans on firearm possession by all "felons." The panel wrote that although the defendant is right that misprision is not a violent crime, he is wrong about misprision of felony being purely passive, where the crime has long been interpreted to contain some element of active concealment. The panel wrote that it was hard pressed to conclude that a crime that has always been a federal felony cannot serve as the basis of a federal firearm ban simply because its actus reus may appear innocuous.

         Concurring, Judge Christen wrote that because binding precedent forecloses the defendant's Second Amendment challenge, she would not engage in further analysis of it.

          OPINION

          BYBEE, CIRCUIT JUDGE

         Lavelle Phillips pleaded guilty to possession of drugs with intent to distribute, as well as being a felon in possession of a firearm. He was sentenced to 57 months in prison. On appeal he asks us to invalidate his sentence as procedurally flawed and to hold that his ...


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