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United States v. Phillips

United States Court of Appeals, Eighth Circuit

April 4, 2017

United States of America Plaintiff- Appellee
Preston C. Phillips Defendant-Appellant

          Submitted: February 17, 2017

         Appeal from United States District Court for the Western District of Missouri - Kansas City

          Before RILEY, Chief Judge, [1] LOKEN and BENTON, Circuit Judges.

          BENTON, Circuit Judge.

         This case is on remand from the Supreme Court of the United States. Phillips v. United States, 137 S.Ct. 634 (2017). Preston Charles Phillips pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and 924(e). The district court sentenced him as an armed career criminal. He appealed, challenging, among other things, the ACCA designation. This court affirmed. United States v. Phillips, 817 F.3d 567 (8th Cir. 2016). The Supreme Court vacated the judgment and remanded for "further consideration in light of Mathis v. United States, " 136 S.Ct. 2243 (2016). Phillips, 137 S.Ct. at 634. In light of Mathis, this court vacates the sentence and remands for resentencing.

         Phillips objected to his classification as an armed career criminal, claiming his Missouri convictions for second-degree domestic assault and second-degree burglary were not violent felonies. Applying the "categorical approach, " this court held that two second-degree domestic assault convictions were violent felonies under the ACCA's force clause, 924(e)(2)(B)(i), and one second-degree burglary conviction was an enumerated violent felony in 924(e)(2)(B)(ii).

         On certiorari, the Supreme Court vacated and remanded for further consideration in light of Mathis. Id. This court vacated its March 8, 2016 opinion, recalled the mandate, and reopened the case.

         "[T]he Supreme Court's decision in Mathis, which did not address the ACCA's force clause, does not alter [the] prior decision that [Phillips' convictions for second-degree domestic assault] were ACCA violent felonies." United States v. Lamb, 847 F.3d 928, 930 (8th Cir. 2017). "Mathis does require additional analysis" whether Phillips' second-degree burglary convictions were "enumerated ACCA violent felon[ies]." Id.

         Determining whether a past conviction is a violent felony, this court applies the categorical approach, looking "'only to the fact of conviction and the statutory definition of the prior offense.'" United States v. Sykes, 844 F.3d 712, 715 (8th Cir. 2016), quoting Taylor v. United States, 495 U.S. 575, 602 (1990). "If the statute of conviction lists elements in the alternative, the sentencing court may apply the 'modified categorical approach.'" Id.

         In United States v. Lamb, this court explained how to apply the "modified categorical approach" to determine whether a burglary is a violent felony after Mathis:

Many state burglary statutes are overinclusive, that is, they define burglary more broadly than generic burglary. For example, a statute may include unlawful entry into places other than buildings, such as automobiles and vending machines. If an overinclusive statute has a "divisible" structure-defining multiple crimes by listing one or more elements in the alternative-the Court applies a "modified categorical approach" that "permits [federal] sentencing courts to consult a limited class of documents, such as indictments and jury instructions, to determine which alternative formed the basis of the defendant's prior conviction." Descamps, 133 S.Ct. at 2281. However, if the statute is overinclusive and not divisible, as in Descamps, no prior conviction under that statute qualifies for the ACCA mandatory minimum sentence enhancement.
In Mathis, the Court resolved a circuit conflict regarding the meaning of the term "divisible." Under Mathis, when "faced with an alternatively phrased statute [we must first] determine whether its listed items are elements or means." 136 S.Ct. at 2256. "Elements" are "the things the prosecution must prove to sustain a conviction." Id. at 2248 (quotation omitted). "Means" are "[h]ow a given defendant actually perpetrated the crime." Id. at 2251. To distinguish between elements and means, federal sentencing courts should look at "authoritative sources of state law" such as "a state court decision [that] definitively answers the question, " or the statute's text. If necessary, the court may "peek" at the record of the prior conviction, but only to determine if the statutory alternatives are elements or means. Id. at 2256-57 (quotation omitted). If the statute lists alternative elements, it is divisible, and therefore the prior conviction is subject to modified categorical analysis. Id.

Lamb, 847 F.3d at 931.

          "The basic elements of the generic burglary offense are 'unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.'" United States v. Olsson, 742 F.3d 855, 856 (8th Cir. 2014), quoting Taylor, 495 U.S. at 599. Phillips has two convictions for second-degree burglary under ...

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