U.S. v. Philips

• Decision Date: 19 February 2008
• Docket Number: No. 06-6191.,06-6191.
• Citation: 516 F.3d 479
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Billy Roland PHILLIPS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

516 F.3d 479

UNITED STATES of America, Plaintiff-Appellee, v. Billy Roland PHILLIPS, Defendant-Appellant.

No. 06-6191.

United States Court of Appeals, Sixth Circuit.

Submitted: September 17, 2007.

Decided and Filed: February 19, 2008.

ON BRIEF: Stephan Charles, Stephan Charles, Counsellor of Law, Manchester, Kentucky, for Appellant. Charles P. Wisdom, Jr., John Patrick Grant, Assistant United States Attorneys, Lexington, Kentucky, for Appellee.

Before MOORE and GRIFFIN, Circuit Judges; GRAHAM, District Judge.^*

GRIFFIN, J., delivered the opinion of the court, in which GRAHAM, D. J. joined. MOORE, J. (p. 489), delivered a separate opinion concurring in part and concurring in the judgment.

OPINION

GRIFFIN, Circuit Judge.

Defendant Billy Roland Phillips pleaded guilty to one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g), and was sentenced to a term of 30 months of incarceration. Phillips appeals his sentence, arguing that the district court engaged in impermissible fact-finding at sentencing in contravention of the Sixth Amendment, the district court erred in finding that firearms possessed by Phillips constituted relevant conduct under U.S.S.G. § 1B1.3, and his sentence is procedurally, unreasonable. We disagree and affirm.

I.

On August 20, 2002, a special agent with the Bureau of Alcohol, Tobacco, and Firearms ("ATF") was informed by a Kentucky State Police ("KSP") detective that Billy Phillips, a convicted felon who had lost the right to possess firearms, had been involved in a shooting incident on August 3, 2002, with Harold Wayne Collins near Manchester, Kentucky.¹ When questioned about the incident, Phillips stated that he was traveling east on the highway when he observed Collins make an obscene gesture towards him. Phillips then traveled back to the parking lot to determine who was accompanying Collins, when, according to Phillips, several individuals shot at him. Phillips reported being struck in the back twice by bullet fragments, but did not suffer any serious injuries.

A search of Phillips's vehicle revealed two loaded handguns"a .45 caliber pistol and a nine millimeter pistol—in a briefcase located in the passenger compartment. Officers also discovered a rifle in the trunk. The ATF agent conducted a firearms trace on the nine millimeter pistol and learned that it had been stolen from its rightful owner in Bloomington, Indiana, who informed the agent that the pistol had been taken from his vehicle in 1996. The ATF agent obtained a report from the Indianapolis Police Department to verify the theft. Ultimately, however, Phillips was not charged for possessing any of these firearms, including the stolen nine millimeter.²

Two years later, on May 9, 2004, Phillips was stopped by a Kentucky Vehicle Enforcement ("KVE") officer while being observed operating his vehicle with broken brake lights. The officer noticed an open can of beer in the vehicle's cup holder and detected a strong odor of alcohol emitting from Phillips. The officer administered a portable Breathalyzer test, which determined Phillips's blood alcohol level to be .163. A second officer who had arrived on the scene to render assistance then arrested Phillips for driving under the influence of intoxicants. The first officer conducted a search of Phillips's vehicle and discovered several firearms behind the passenger seat. After securing a search warrant for the vehicle, a later search of the vehicle uncovered a loaded .22 caliber pistol, a loaded 7.62 x 39 millimeter rifle, a loaded .45 caliber pistol, a loaded 12 gauge pump action shotgun, and various ammunition. Thereafter, Phillips was indicted in connection with this incident for being a felon in possession of four firearms, in violation of 18 U.S.C. § 922(g)(1). Phillips later pleaded guilty to the indictment. His sentence for this conviction is the subject of the present appeal.

On March 9, 2006, an ATF agent and KSP officer received a tip that Phillips was acting as a bodyguard for someone staying at the Best Western hotel in Manchester. The agent and officer traveled to the hotel, met with Phillips, and asked him in what room he was staying. Phillips informed the police that he was staying in room 105, although the inscription on his hotel key read 103. The officers then knocked on the door to room 105 and received permission to enter. The room's guest then pushed open the door that connected rooms 105 and 103, and the ATF agent observed a silver pistol lying on a table. After the ATF agent obtained a federal search warrant for room 103, a search led to the seizure of a loaded .45 caliber pistol and various rounds of ammunition.

Phillips entered into a plea agreement regarding his May 9, 2004, arrest. The district court conducted a sentencing hearing and, over Phillips's objections, found that Phillips's illegal possessions of firearms in August 2002 and March 2006, were "relevant conduct" pursuant to U.S.S.G. § 1B1.3(a)(2). Phillips was therefore deserving of a four-point increase to his base offense level under the United States Sentencing Guidelines, The court found further that an additional two-point enhancement was warranted because one of the firearms—the nine millimeter pistol seized in August 2002—was stolen. The court then sentenced Phillips to a term of 30 months of incarceration. This timely appeal followed.

II.

Under the advisory Guidelines scheme, we review a criminal defendant's sentence for reasonableness. United States v. Lancaster, 501 F.3d 673, 675 (6th Cir.2007). In conducting reasonableness review, we "must first ensure that the district court committed no significant procedural error, such as failing, to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence—including an explanation for any deviation from the Guidelines range." Gall v. United States, 552 U.S. ___, 128 S.Ct. 516, 597, 169 L.Ed.2d 445 (2007). Phillips contends that the district court improperly calculated his Guidelines range by incorrectly finding his illegal possession of firearms on August 3, 2002, and March 9, 2006, to be "relevant conduct" pursuant to U.S.S.G. § 1B 1.3(a)(2), thus resulting in a four-point increase of his base offense level under the Guidelines.³ The government argues that Phillips's repeated possessions of the firearms were connected by a common purpose—his desire to protect himself from attempts on his life—and that his 2002 and 2006 possessions of firearms were part of the "same course of conduct" as his charged 2004 possession of firearms. We agree with the government.

We accept factual findings made by the district court at sentencing unless they are clearly erroneous. 18 U.S.C. § 3742(e). Because the district court's determination of "relevant conduct" under the Sentencing Guidelines involves the application of law to fact, we review the district court's determination de novo. United States v. Shafer, 199 F.3d 826, 830 (6th Cir.1999). The government bears the burden of proof, by a preponderance of the evidence, that Phillips's possessions of firearms in 2002 and 2006 were relevant conduct. United States v. Moored, 997 F.2d 139, 144 (6th Cir.1993).

Phillips's 2002 and 2006 possessions of firearms may be added to his offense level as relevant conduct if these possessions were "part of the same course of conduct or common scheme or plan" as Phillips's underlying felon-in-possession conviction.⁴ U.S.S.G. § 1B1.3(a)(2). "For two or more offenses to constitute part of a common scheme or plan, they must be substantially connected to each other by at least one common factor, such as common victims, common accomplices, common purpose, or similar modus operandi." U.S.S.G. § 1B1.3, application note 9(A). If this criteria is not met, Phillips's prior possessions of firearms may nevertheless be counted as relevant conduct if they were part of the same course of conduct. "Offenses that do not qualify as part of a common scheme or plan may nonetheless qualify as part of the same course of conduct if they are sufficiently connected or related to each other as to warrant the conclusion that they are part of a single episode, spree, or ongoing series of offenses." U.S.S.G. § 1 B 1.3, application note 9(B).

We consider the degree of similarity of the offenses, the regularity of the offenses, and the time interval between the offenses to assist us in determining whether offenses are sufficiently connected to be considered part of the same course of conduct. Id. The Guidelines counsel a "sliding scale approach" to these factors, explaining that "[w]hen one of the above factors is absent, a stronger presence of at least one of the other factors is required." Id.; see also Hill, 79 F.3d at 1482 (describing Guidelines commentary as requiring a "sliding scale approach").

Although there is no previous published opinion from our circuit addressing this issue, our sister circuits have held that "the contemporaneous, or nearly contemporaneous, possession of uncharged firearms is ... relevant conduct in the context of a felon-in-possession prosecution." United States v. Powell, 50 F.3d 94, 104 (1st Cir.1995); see also United States v. Gales, 137 Fed.Appx. at 877-78 (6th Cir. 2005) (unpublished) (upholding application of two-point enhancement for relevant conduct where defendant was convicted under 18 U.S.C. § 922(g) and was found to have possessed two other firearms within two months from charged conduct). These opinions have not set forth any bright line rule regarding the temporal scope of "relevant conduct," but have generally upheld the relevant conduct designation where the offenses were within a nine-month period. See, e.g., United States v. Nichols, 464 F.3d 1117, 1124 (9th Cir.2006) (upholding relevant conduct enhancement" where defendant...