United States v. Elroy Antonio Phillips , 262 F. App'x 183 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JANUARY 11, 2008
No. 06-14794
THOMAS K. KAHN
CLERK
D. C. Docket No. 01-08084-CR-JAL
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
Cross-Appellee,
versus
ELROY ANTONIO PHILLIPS,
a.k.a. 6,
a.k.a. 86,
Defendant-Appellee
Cross-Appellant.
Appeals from the United States District Court
for the Southern District of Florida
(January 11, 2008)
Before DUBINA and KRAVITCH, Circuit Judges, and GOLDBERG,* Judge.
______________________________
*Honorable Richard W. Goldberg, United States Court of International Trade Judge, sitting by
designation.
PER CURIAM:
This is the second time we have considered an appeal of this case. In the
first appeal, we affirmed Phillips’s convictions but vacated his sentences and
remanded the case for resentencing (“Phillips I”). On remand, the district court
sentenced Phillips to 288 months in the federal penitentiary. The government
appealed Phillips’s sentence and Phillips cross-appealed his sentence on three
grounds.1 First, Phillips argues that the district court erred when it applied an
armed-career criminal enhancement, see U.S.S.G. § 4B1.4(a) (2002), based on its
erroneous determination that Phillips was a career offender, see § 4B1.1(a).
Second, Phillips argues that the district court erred when it denied his motion for
new trial. Third, Phillips contends that the district court erroneously determined
that §§ 922(g) and 924(e) of Title 18 of the United States Code are constitutional
as applied to him.
After reviewing the record, reading the parties’ briefs, and having the
benefit of oral argument, we conclude that all of Phillips’s arguments in support of
his cross-appeal are meritless. Based on our decision in Phillips I, Phillips’s
arguments that the district court erred when it denied his motion for new trial and
1
Subsequently, the government filed a motion to dismiss its appeal, which we
granted. Accordingly, the cross-appeal is all that remains for disposition.
2
determined that §§ 922(g) and 924(e), as applied to him, do not violate the
Constitution are barred by the law of the case doctrine. See United States v.
Jordan, 429 F.3d 1032 (11th Cir. 2005). Phillips’s argument that the district court
erred when it determined that he qualified as a career offender, see U.S.S.G. §
4B1.1(a), which Phillips raises for the first time in this appeal, is also barred by the
law of the case doctrine. See United States v. Escobar-Urrego, 110 F.3d 1556,
1560 (11th Cir. 1997). Accordingly, we affirm the district court’s determination
that Phillips qualifies as an armed-career offender under U.S.S.G. § 4B1.1(a), and
we affirm his sentence.
AFFIRMED.
3