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Phillips v. United States

United States Court of Appeals, Sixth Circuit

November 5, 2013

Gregory Alec Phillips, Petitioner-Appellant,
v.
United States of America, Respondent-Appellee.

Argued: June 21, 2013

Appeal from the United States District Court for the Eastern District of Tennessee at Knoxville. Nos. 3:04-cr-179-1; 3:08-cv-57—Thomas W. Phillips, District Judge.

ARGUED:

Hallie H. McFadden, Signal Mountain, Tennessee, for Appellant.

Debra A. Breneman, UNITED STATES ATTORNEY'S OFFICE, Knoxville, Tennessee, for Appellee.

ON BRIEF:

Hallie H. McFadden, Signal Mountain, Tennessee, for Appellant.

Debra A. Breneman, Charles E. Atchley, Jr., UNITED STATES ATTORNEY'S OFFICE, Knoxville, Tennessee, for Appellee.

Before: ROGERS and KETHLEDGE, Circuit Judges; BORMAN, District Judge [*]

OPINION

BORMAN, District Judge.

Gregory Alec Phillips, a former federal prisoner now on supervised release, was indicted on December 7, 2004, in the United States District Court, Eastern District of Tennessee. (R. 3, Sealed Indictment.)[1] The one-count indictment charged that on or about November 2004, Phillips, an adult citizen of the United States, did travel in foreign commerce to Thailand, and did knowingly engage in illicit sexual conduct as defined in Title 18, United States Code, Sections 2423(f) and 2246, with a minor male person who had not attained the age of sixteen (16) years, in violation of 18 U.S.C. § 2423(c). Phillips pleaded guilty to the single count and was sentenced to 37 months imprisonment, which he has served, and to lifetime supervised release. Phillips was released from prison on August 16, 2007. Subsequently, Phillips violated multiple terms of his supervised release and was sentenced to an additional 30 months imprisonment and thereafter to a 20 year term of supervised release. Phillips was released from his second incarceration in or about September, 2010, and continues on supervised release.

Phillips now appeals the district court's order denying his motion to vacate judgment filed under 28 U.S.C. § 2255. In his motion to vacate in the district court, Phillips argued that the statute under which he was convicted, 18 U.S.C. § 2423(c), which punishes "[e]ngaging in illicit sexual conduct in foreign places, " applied only to individuals who both traveled in foreign commerce and engaged in illicit sexual conduct after the statute was enacted on April 30, 2003. Phillips also argued that his conviction violated the Ex Post Facto clause. Declining to address the government's arguments that Phillips's § 2255 motion was time-barred and procedurally defaulted, the district court addressed the merits and ruled that Phillips's foreign travel need not have preceded the date of enactment of section 2423(c), as long as the illicit sexual conduct occurred after the statute was enacted, which in Phillips's case it did. The district court denied the motion to vacate, and denied Phillips a certificate of appealability. Phillips v. United States, No. 04-cr-179, 2011 WL 4436526 (E.D. Tenn. Sept. 23, 2011). This Court granted Phillips's motion for a certificate of appealability, on the issue of whether 18 U.S.C. § 2423(c) requires that both the travel and the illicit sexual conduct occur after enactment of the statute criminalizing engaging in illicit sexual conduct in foreign places. After oral argument, this Court requested supplemental briefing addressing whether the equitable exception for actual innocence to AEDPA's one-year statute of limitations applies in this case, in light of the absence of new evidence, and in light of the Supreme Court's recent decision in McQuiggin v. Perkins, 133 S.Ct. 1924 (2013). For reasons not addressed by the district court, but addressed by the parties in the supplemental briefs, which we find dispositive of Phillips's claims, we AFFIRM the decision of the district court denying Phillips's motion to vacate judgment.

I.

A. The PROTECT Act

Title 18 U.S.C. § 2423(c), which was enacted on April 30, 2003, as part of the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003 ("the PROTECT Act"), defined as "AN ACT To prevent child abduction and the sexual exploitation of children, and for other purposes, " provides:

"Illicit sexual conduct" is defined as:

(1) a sexual act (as defined in section 2246) with a person under 18 years of age that would be in violation of chapter 109A if the sexual act occurred in the special maritime and territorial jurisdiction of the United States; or (2) any commercial sex act ...

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