United States v. Darrell Gene Phillips

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-10282 ELEVENTH CIRCUIT
MARCH 31, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 07-00040-CR-HLM-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DARRELL GENE PHILLIPS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(March 31, 2010)
Before EDMONDSON, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Darrell Gene Phillips appeals his 564-month total sentence imposed for drug
and firearm offenses, in violation of 21 U.S.C. § 846 and 18 U.S.C. § 924(c). No
reversible error has been shown; we affirm.
On appeal, Phillips argues that he should have received only a five-year
mandatory minimum sentence for his firearm offense, not the seven-year
mandatory minimum he received for brandishing a firearm. We review this issue
for plain error because Phillips did not raise it in the district court. United States v.
Aguillard, 217 F.3d 1319, 1320 (11th Cir. 2000).1
Under section 924(c), a person convicted of using or carrying a firearm in
relation to a drug offense must be sentenced to a consecutive mandatory minimum
five-year sentence. 18 U.S.C. § 924(c)(1)(A)(i). But this mandatory minimum is
increased to seven years if, during sentencing, the district court determines that the
firearm was brandished. 18 U.S.C. § 924(c)(1)(A)(ii); United States v. Gray, 260
F.3d 1267, 1281-82 (11th Cir. 2001). “Brandish” is defined as an act meant “to
display all or part of the firearm, or otherwise make the presence of the firearm
known to another person, in order to intimidate that person, regardless of whether
1
Under plain-error analysis, Phillips must show that “(1) an error occurred; (2) the error
was plain; (3) it affected his substantial rights; and (4) it seriously affected the fairness of the
judicial proceedings.” United States v. Gresham, 325 F.3d 1262, 1265 (11th Cir. 2003).
2
the firearm is directly visible to that person.” 18 U.S.C. § 924(c)(4).
Phillips maintains that the evidence did not show that he intimidated a
confidential informant (“CI”) with the firearm. We disagree. Phillips made no
objections to the facts in the presentence investigation report; thus, he is deemed to
have admitted the facts. See United States v. Bennett, 472 F.3d 825, 833-34 (11th
Cir. 2006). And those facts indicated that a CI arrived at Phillips’s doorstep,
unannounced, to purchase methamphetamine. Phillips thought the CI’s presence
could have been a robbery attempt; so, while at the door, Phillips admonished the
CI that he had a loaded UZI machine gun with him and claimed that it was a fully
automatic weapon. On these facts, we conclude that Phillips’s act in warning the
CI about the presence of a firearm was intended to intimidate the CI; and the
district court committed no error, plain or otherwise, in determining that Phillips
brandished the firearm.
We turn to Phillips’s argument that his guidelines sentence substantively is
unreasonable.2 We typically review substantive reasonableness arguments under an
abuse of discretion standard. Gall v. United States, 128 S.Ct. 586, 591 (2007). But
2
Phillips’s guidelines range was 480 months’ to life imprisonment for the drug charge in
addition to the 84-month mandatory minimum sentence for the firearm charge. But the statutory
maximum term of imprisonment for the drug charge was 480 months. So, the statutorily
authorized maximum sentence became the guidelines sentence. See 21 U.S.C. §
841(b)(1)(A)(ii), (viii), U.S.S.G. § 5G1.1(a).
3
an alleged error cannot serve as grounds for reversal if the appealing party
“induces or invites the district court into making [the alleged] error.” United States
v. Stone, 139 F.3d 822, 838 (11th Cir. 1998).
Here, Phillips requested that the district court sentence him at the low end of
the guidelines range. The district court complied and sentenced him to the lowest
possible guidelines sentence of 564 months. Because Phillips now challenges the
very act that he asked the district court to undertake, we do not reach the merits of
Phillips’s argument about the substantive reasonableness of his sentence. See
United States v. Love, 449 F.3d 1154, 1156-57 (11th Cir. 2006) (defendant
precluded from challenging the length of the supervised release portion of his
sentence when he specifically had “induced or invited the district court to impose a
sentence that included a term of supervised release”).3
AFFIRMED.
3
We also note that the district court provided many reasons -- all supported by the record
and the 18 U.S.C. § 3553(a) factors -- for a guidelines sentence, including Phillips’s extensive
(but unscored) criminal history, the large amount of drugs involved, and his failure to take
responsibility for his acts.
4