United States v. Lee Edward Phillips , 603 F. App'x 133 ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4225
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LEE EDWARD PHILLIPS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:13-cr-00117-F-1)
Argued: January 28, 2015 Decided: March 3, 2015
Before TRAXLER, Chief Judge, and DIAZ and THACKER, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Stephen Clayton Gordon, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant. Phillip
Anthony Rubin, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee. ON BRIEF: Thomas P. McNamara,
Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Raleigh, North Carolina, for Appellant. Thomas G. Walker,
United States Attorney, Jennifer P. May-Parker, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Lee Edward Phillips, a federal prisoner, pleaded guilty to
possessing a prohibited object in prison, see 18 U.S.C. §
1791(a)(2), and was sentenced to 41 months’ imprisonment.
Phillips appeals, challenging the procedural reasonableness of
his sentence and the district court’s determination that he
qualified as a career offender. For the following reasons, we
affirm.
I.
Phillips pleaded guilty to federal firearms charges in
Tennessee in 2003 and was sentenced to 188 months’ imprisonment.
In 2012, while incarcerated at the Federal Correctional
Institute in Butner, North Carolina, Phillips was found in
possession of a handmade weapon fashioned from a section of
electrical conduit tied to a 12-inch rope woven from t-shirt
remnants. Phillips was indicted on a single count of possessing
a weapon in prison and thereafter pleaded guilty.
According to the presentence report (“PSR”), the offense of
conviction was a “crime of violence” qualifying Phillips as a
career offender. U.S.S.G. § 4B1.1(a)(2). With the enhanced
base-offense level and criminal history category flowing from
the career-offender designation, see id. § 4B1.1(b), the PSR
determined that Phillips’ advisory sentencing range under the
Guidelines was 37-46 months’ imprisonment.
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At sentencing, counsel argued that mere possession of a
weapon was a passive, status offense that should not qualify as
a crime of violence for career-offender purposes. Counsel
contended that Phillips, who had been diagnosed with colon
cancer in 2012 and had part of his colon removed in 2013, had
been physically and sexually assaulted previously and that his
struggle with colon cancer left him more vulnerable. According
to counsel, Phillips possessed the weapon for self-defense only
and would not have used it to commit a crime. Relying on United
States v. Mobley, 687 F.3d 625, 631-32 (4th Cir. 2012), the
court overruled Phillips’ career-offender objection.
Counsel for Phillips then sought a downward variance to 27
months’ imprisonment, again arguing that Phillips’ vulnerability
was a mitigating factor in his possession of a weapon. Counsel
explained that Phillips’ surgery occurred six months after he
arrived at Butner and that he had lost between 40 and 50 pounds,
rendering him significantly more susceptible to a prison
assault. Counsel also suggested that the lower sentence was
appropriate because Phillips had been placed in seclusion.
Finally, counsel acknowledged Phillips’ prior criminal conduct,
but suggested that the lower sentence was nonetheless
appropriate given the circumstances.
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In response, the government emphasized that Phillips had an
extensive criminal history and had previously been cited for
possessing a weapon in prison, along with numerous other prison
infractions. In light of this history, the government asked for
a sentence near the high end of the career-offender range.
After offering Phillips an opportunity to speak, the court
made the following statement:
The court finds the basis for the findings contained
in the [PSR] to be credible and reliable and,
therefore, the court adopts those findings.
Based on those findings, the court has calculated
the imprisonment range prescribed by the advisory
Sentencing Guidelines.
The court has considered that range as well as
other relevant factors set forth in the advisory
Guidelines and those set forth in 18 United States
Code section 3553(a).
Pursuant to the Sentencing Reform Act of 1984,
it’s the judgment of the court that the defendant is
hereby committed to the custody of the Bureau of
Prisons to be imprisoned for a term of 41 months.
The term of imprisonment imposed by this judgment
shall run consecutively to the defendant’s
imprisonment under any previous state or federal
sentence.
J.A. 39-40. This appeal followed.
II.
Phillips first challenges the procedural reasonableness of
his sentence. A sentence is procedurally reasonable if the
court properly calculates the defendant’s advisory Guidelines
range, gives the parties an opportunity to argue for an
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appropriate sentence, considers the 18 U.S.C. § 3553(a) factors,
does not rely on clearly erroneous facts, and sufficiently
explains the selected sentence. See Gall v. United States, 552
U.S. 38, 49-51 (2007). In this case, Phillips contends his
sentence is procedurally unreasonable because the district court
failed to address his nonfrivolous arguments in favor of a
downward variance and failed to explain why it had rejected
them.
As this court has explained, “[r]egardless of whether the
district court imposes an above, below, or within-Guidelines
sentence, it must place on the record an individualized
assessment based on the particular facts of the case before it.”
United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009)
(internal quotation marks omitted). The explanation must be
sufficient to allow for “meaningful appellate review,” such that
the appellate court need “not guess at the district court’s
rationale.” Id. at 329, 330 (internal quotation marks omitted).
Based on our review of the sentencing transcript, we agree
that the district court’s explanation in this case was
insufficient, thereby rendering Phillips’ sentence procedurally
unreasonable. Because Phillips properly preserved this issue
for review, see United States v. Lynn, 592 F.3d 572, 578 (4th
Cir. 2010), we must reverse unless we conclude that the error
was harmless, see id. at 576. The government may establish that
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such a procedural error was harmless, and thus avoid remand, by
showing “that the error did not have a substantial and injurious
effect or influence on the result [such that] we can say with
fair assurance that the district court’s explicit consideration
of the defendant’s arguments would not have affected the
sentence imposed.” United States v. Boulware, 604 F.3d 832, 838
(4th Cir. 2010) (internal quotation marks and alterations
omitted).
Applying this standard to the facts of this case, we
conclude that the government has satisfied its burden of showing
that the district court’s procedural error was harmless. The
district court’s adoption of Phillips’ PSR, which recited
Phillips’ criminal history, various prison infractions, and
medical condition, establishes the court’s familiarity with
Phillips’ background and personal circumstances as relevant to
the § 3553(a) sentencing factors. Further, the arguments
Phillips advanced in favor of a below-Guidelines sentence were
less than persuasive, particularly when juxtaposed with
Phillips’ significant criminal record and history of violent
conduct while in prison. See id. at 839–40 (explaining that
comparative weakness of a defendant’s arguments for a lower
sentence is one reason to decline to remand a case for further
explanation). Finally, the sentencing transcript reveals little
room to doubt that the district court considered defense
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counsel’s arguments in favor of a downward variance, as this was
one of two issues contested at sentencing, and the court imposed
sentence immediately after hearing the attorneys’ arguments.
See id. at 839 (“[E]ven if the district court erred by not
adequately explaining its reasons for rejecting Boulware’s
argument for a below-guidelines sentence, we are quite confident
that the district court undertook that analysis and considered
Boulware’s argument.”). We are thus persuaded that, in this
case, any shortcoming in the court’s explanation for the
sentence it selected is harmless and that remand is not
warranted.
III.
We turn now to Phillips’ argument that his conviction was
improperly characterized as a crime of violence and thus that he
was erroneously designated a career offender. As counsel for
Phillips acknowledges, however, this argument is foreclosed by
our decision in United States v. Mobley, where we held that a
conviction under 18 U.S.C. § 1791 for possessing a weapon in
prison was a crime of violence as defined by the career-offender
provisions of the Guidelines. See Mobley, 687 F.3d at 631-32.
Because one panel of this court may not overrule a decision of
another panel, see, e.g., McMellon v. United States, 387 F.3d
329, 332-33 (4th Cir. 2004) (en banc), we reject Phillips’
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argument and conclude that he was properly sentenced as a career
offender.
IV.
Accordingly, for the foregoing reasons, we hereby affirm
Phillips’ sentence.
AFFIRMED
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