United States v. Phillips, No. 14-10448 (9th Cir. 2016)
Annotate this CaseDefendant pleaded guilty to possession of drugs with intent to distribute, as well as being a felon in possession of a firearm, and was sentenced to 57-months in prison. The court concluded that the district court did not procedurally err at sentencing where the district court read all relevant materials, understood the proper role of the guidelines, considered the relevant factors under 18 U.S.C. 3553(a), and decided to vary upward from the Guidelines range based on defendant’s particular circumstances. In United States v. Vongxay, the court held that felons are categorically different from the individuals who have a fundamental right to bear arms. The court concluded that its decision in Vongxay forecloses defendant’s Second Amendment argument. Therefore, the court affirmed the district court's denial of defendant's motion to dismiss the indictment. The court noted that there are good reasons to be skeptical of the constitutional correctness of categorical, lifetime bans on firearm possession by all “felons.” In this case, although defendant is right that misprision is not a violent crime, he is wrong about it being “purely” passive. The court is hard pressed to conclude that a crime that has always been a federal felony cannot serve as the basis of a felon firearm ban, simply because its actus reus may appear innocuous.
Court Description: 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. UNITED STATES V. PHILLIPS 3 Concurring, Judge Christen wrote that because binding precedent forecloses the defendant’s Second Amendment challenge, she would not engage in further analysis of it.
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