United States v. Lavelle Phillips

I. BACKGROUND

Police officers approached Phillips while he was in his car. They smelled marijuana and noticed a partially-empty bottle of alcohol, and tried to arrest him. Phillips violently resisted and fled. After finally subduing him and searching Phillips’s car, police found drugs, scales, and money. Three days later, Phillips was released on bail.

Only a few months after that, a different set of officers came upon Phillips talking with another man in front of a home. As they approached, Phillips fled. And this time he got away, but not before dropping a .45 caliber handgun, a high capacity magazine, and his wallet, complete with several forms of identification and his recent bail receipt.

Phillips was indicted in two separate cases. In August of 2012, he was brought up on charges of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He filed a motion to dismiss the indictment, arguing that § 922(g)(1) was unconstitutional, as applied, under the Second Amendment. The district court denied the motion. Phillips then pleaded guilty. In December of 2013, Phillips was separately indicted for possession of various drugs with intent to distribute.…

Lavelle 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 conviction violates the Second Amendment. We decline both invitations and affirm.

I. BACKGROUND

Police officers approached Phillips while he was in his car. They smelled marijuana and noticed a partially-empty bottle of alcohol, and tried to arrest him. Phillips violently resisted and fled. After finally subduing him and searching Phillips’s car, police found drugs, scales, and money. Three days later, Phillips was released on bail.

Only a few months after that, a different set of officers came upon Phillips talking with another man in front of a home. As they approached, Phillips fled. And this time he got away, but not before dropping a .45 caliber handgun, a high capacity magazine, and his wallet, complete with several forms of identification and his recent bail receipt.

Phillips was indicted in two separate cases. In August of 2012, he was brought up on charges of being a felon in possession of a…

concurring:

I fully join the Court’s rejection of Phillips’s procedural challenge to his sentence. I also agree that our prior precedent and Supreme Court precedent foreclose Phillips’s argument that use of his prior conviction as a predicate offense for his § 922(g)(1) conviction violates the Second Amendment. Because binding precedent forecloses Phillips’s Second Amendment argument, I would not engage in further analysis or discussion of it. See Cetacean Cmty. v. Bush, 386 F.3d 1169, 1173 (9th Cir. 2004) (Commentary “made during the course of delivering a judicial opinion, but ... unnecessary to the decision in the case” is “nonbinding dicta” and is “not precedential.”).