Submitted December 7, 2015 [*] San Francisco, California
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
Douglas Beevers, Assistant Federal Defender; Heather E.
Williams, Federal Defender; Federal Defenders of the Eastern
District of California, Sacramento, California; for
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,
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.
panel held that the district court committed no procedural
error at sentencing.
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.
Judge Christen wrote that because binding precedent
forecloses the defendant's Second Amendment challenge,
she would not engage in further analysis of it.
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 ...