U.S. v. Phillips

• Decision Date: 16 July 1998
• Docket Number: 97-30085,Nos. 97-30046,s. 97-30046
• Citation: 149 F.3d 1026
• Parties: 98 Cal. Daily Op. Serv. 5580, 98 Daily Journal D.A.R. 7792 UNITED STATES of America, Plaintiff-Appellee-Cross-Appellant, v. Bradley Scott PHILLIPS, Defendant-Appellant- Cross-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1026

149 F.3d 1026

98 Cal. Daily Op. Serv. 5580, 98 Daily Journal

D.A.R. 7792

UNITED STATES of America, Plaintiff-Appellee-Cross-Appellant, v. Bradley Scott PHILLIPS, Defendant-Appellant- Cross-Appellee.

Nos. 97-30046, 97-30085.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 2, 1998.

Decided July 16, 1998.

Ruben L. Iniguez, Federal Public Defender, Spokane, Washington, for defendant-appellant-cross-appellee.

Rolf H. Tangvald, Assistant United States Attorney, Spokane, Washington, for plaintiff-appellee-cross-appellant.

Appeals from the United States District Court for the Eastern District of Washington; Wm. Fremming Nielsen, District Judge, Presiding. D.C. No. CR-95-00211-WFN.

Before: BROWNING, SKOPIL, and O'SCANNLAIN, Circuit Judges.

SKOPIL, Senior Circuit Judge:

Bradley Scott Phillips entered a conditional guilty plea to the charge of being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1). He contends on appeal that the district court erred by denying his motion to suppress the firearm and his motion to present a justification defense. The government cross-appeals the district court's refusal to apply the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). We reject Phillips' contentions. We agree with the government that the ACCA should have been applied in sentencing Phillips. Accordingly, we affirm the conviction, vacate the sentence imposed, and remand for resentencing.

I.

Phillips is currently serving a 100-month sentence for being a felon in possession of a firearm. There is no dispute as to his felon status--he was convicted in 1982 of two counts of second degree burglary, and again in 1985 of one count of robbery. The events relevant to Phillips' latest incarceration occurred during the night of August 22-23, 1995. Phillips explained that late that evening he went to a motel room in Spokane, Washington to purchase methamphetamine. Instead of obtaining drugs, he was beaten unconscious and robbed. When he awoke, he walked to a local bar and solicited a ride to a friend's apartment. His friend, Brenda Hutsell, was not home. By phone, Phillips located her at the home of a mutual friend, Carolyn Cosby.

Hutsell refused Phillips' request that she drive into town to let him into the apartment; Phillips threatened to drive out to Cosby's house to get Hutsell. Cosby warned Phillips that he was not welcome at her house. Notwithstanding Cosby's objection, Phillips stated that he intended to come to Cosby's house and forcibly retrieve Hutsell. Twice along the way, he stopped and made threatening phone calls to Cosby and Hutsell. Cosby called the police.

Phillips arrived at Cosby's home at midnight, entering through an open garage and side door. Cosby testified that Phillips appeared to be high on methamphetamine and was threatening. Phillips demanded that Hutsell return with him and attempted to pick her up and remove her from the residence. Cosby noticed at that point that Phillips had a handgun tucked into the back of his pants. She then unlocked and opened a door to her house in hopes that the police would soon arrive. When police did arrive, they entered through the open door and confronted Phillips. A brief struggle occurred as Phillips reached for his gun. After subduing Phillips and handcuffing him, the officers removed the loaded handgun from Phillips' possession.

Phillips sought to suppress the firearm, arguing that the officers violated federal "knock and announce" law. The district court rejected the argument, ruling that: (1) the open door relieved the officers from the knock and announce requirement; (2) there existed exigent circumstances that waived the requirement; and (3) the owner of the home consented to entry by requesting police assistance. Phillips then sought to establish a justification defense, contending that he possessed the firearm only as protection against the men who had earlier beaten and robbed him. The district court denied Phillips' motion, ruling that Phillips failed to make a prima facie showing sufficient to allow the defense.

Phillips pleaded guilty, reserving the right to appeal the district court's adverse rulings. Prior to sentencing, the government filed an information listing Phillips' three prior felony convictions. The government requested the court to enhance Phillips' sentence pursuant to the ACCA. The court refused, ruling that two of the listed felonies "were not committed on occasions different from one another for purposes of [the Act]."

II.

Phillips argues that the district court should have suppressed the seizure of his firearm because the police failed to comply with the "knock and announce" requirements of 18 U.S.C. § 3109. That section requires that police officers "not open the closed door of a dwelling until they have announced their authority and purposes and have been refused admittance." United States v. Contreras-Ceballos, 999 F.2d 432, 434 (9th Cir.1993). We agree with the district court that the statute does not apply to officers who enter through open doors. See United States v. Valenzuela, 596 F.2d 1361, 1365 (9th Cir.1979) ("entry through an open door is not a 'breaking' within the meaning of the statute"); United States v. Vargas, 436 F.2d 1280, 1281 (9th Cir.1971) ("thrust of Section 3109 ... is aimed at the closed or locked door"). Moreover, the district court correctly noted that exigent circumstances and the owner's consent in this case would serve to negate any violation of the statute. See United States v. Turner, 926 F.2d 883, 886-87 (9th Cir.1991) (exigent circumstances); United States v. Valencia-Roldan, 893 F.2d 1080, 1081 n. 1 (9th Cir.1990) (owner consent). We affirm the district court's suppression ruling.

III.

Phillips argues that the district court erred by refusing to allow him to present a justification defense. Such a defense is available in felon-in-possession cases. See United States v. Gomez, 92 F.3d 770, 774-75 (9th Cir.1996). Therefore, "if the evidence, when viewed in the light most favorable to [Phillips], was adequate to make out a justification defense, he was entitled to present it and have the jury instructed accordingly." Id. at 775.

To establish a justification defense, Phillips was required to proffer sufficient evidence to demonstrate each element of the defense, namely that: "(1) he was under unlawful and present threat of death or serious bodily injury; (2) he did not recklessly place himself in a situation where he would be forced to engage in criminal conduct; (3) he had no reasonable legal alternative; and (4) there was a direct causal relationship between the criminal action and the avoidance of the threatened harm." United States v. Wofford, 122 F.3d 787, 790 (9th Cir.) (quoting United States v. Lemon, 824 F.2d 763, 765 (9th Cir.1987)), cert. denied, --- U.S. ----, 118 S.Ct. 233, 139 L.Ed.2d 164 (1997). Phillips contends that he satisfied these elements through his testimony that he took possession of the gun only because he believed his life was in danger from the same men who had earlier assaulted and robbed him. Phillips explained that while in Cosby's house, he saw individuals outside, located a gun he knew was in the house, and armed himself against the intruders. He was unaware that Cosby had called the police.

The district court ruled that Phillips' testimony was insufficient to establish a justification defense. We agree. When police entered Cosby's house, they found Phillips sitting at a kitchen table with his back to the door, suggesting that he did not believe he was under an imminent threat of attack. Moreover, Phillips recklessly placed himself in both situations--first, by voluntarily seeking a meeting with known drug dealers to purchase illicit drugs, and second, by unlawfully entering and remaining at Cosby's home. See United States v. Perez, 86 F.3d 735, 737 (7th Cir.1996) (defense is unavailable for one whose fears rise from involvement in illegal activities). Phillips never called the police to report the assault and robbery or his suspicion that the men might still be pursuing him. Finally, it is undisputed that Phillips reached for the gun even after he was confronted by the uniformed officers; he struggled with the officers, resisted arrest, and attempted to grab the gun, knowing that his "attackers" were in fact police officers. We agree with the district court that Phillips failed to satisfy any element of the defense.

IV.

The government cross-appeals the district court's ruling that the ACCA does not apply to Phillips. That statute provides that any individual convicted as a felon-in-possession who has three previous convictions for violent felonies or serious drug offenses "committed on occasions different from one another" shall be imprisoned for at least fifteen years without probation or parole. 18 U.S.C. § 924(e)(1). The district court ruled that the ACCA did not apply because "the two burglaries committed [by Phillips] on October 21, 1981 and October 22, 1981 were not committed on occasions different from one another for purposes of [the ACCA]."

The facts giving rise to the court's ruling were developed during a sentencing hearing. The government contended that near midnight on October 21, 1981, Phillips and his accomplice, Turner Roth, entered and burglarized the Central Valley Barbershop and Beauty Salon near Spokane. Shortly thereafter, the two entered and burglarized an adjacent business, Antique Auto. The owner of that business lived in an attached apartment and notified police of the robbery in progress. When police arrived, Phillips and Roth were found hiding in the attic of Antique Auto. Police recovered a handgun from the attic and seized a calculator from Roth and a roll of half-dollars from Phillips. Roth later admitted that the gun belonged to him; the calculator and money were identified as stolen from Central Valley.

Phillips pleaded guilty to both burglaries. On his plea statement, Phillips...