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United States v. Phillips

United States Court of Appeals, Sixth Circuit

May 27, 2014

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
TIMOTHY PHILLIPS, Defendant-Appellant

Argued: January 28, 2014.

Appeal from the United States District Court for the Eastern District of Tennessee of Chattanooga. No. 1:12-cr-00052-1--Harry S. Mattice, Jr., District Judge.

ARGUED:

Laura E. Davis, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Knoxville, Tennessee for Appellant.

Gregg L. Sullivan, UNITED STATES ATTORNEY'S OFFICE, Chattanooga, Tennessee for Appellee.

ON BRIEF:

Laura E. Davis, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Knoxville, Tennessee for Appellant.

Gregg L. Sullivan, UNITED STATES ATTORNEY'S OFFICE, Chattanooga, Tennessee for Appellee.

Before: GUY, GIBBONS, and ROGERS, Circuit Judges. GIBBONS, J., delivered the opinion of the court in which, GUY, J., joined. ROGERS, J., delivered a separate dissenting opinion.

OPINION

Page 1048

JULIA SMITH GIBBONS, Circuit Judge.

Timothy Phillips pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The district court determined that Phillips qualified for an enhanced sentence under the Armed Career Criminal Act (" ACCA" ), 18 U.S.C. § 924(e)(1), based in part on a prior Florida third-degree burglary-of-a-structure conviction. The Florida statute defined burglary in the third degree as burglary in which the offender does not commit assault or battery, does not become armed with a dangerous weapon, and required that the structure be unoccupied. Fla. Stat. § 810.02(4). On appeal, the government contends that Phillips's burglary conviction is a violent felony within the meaning of the ACCA's residual clause, which defines violent felony as a crime that " otherwise involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B)(ii).

The Supreme Court has explained that under Florida's burglary statute attempted burglary is a violent felony within the meaning of the ACCA's residual clause in part because of the potential risk of violent confrontation with passersby. Because that risk is present when offenders commit the crime of third-degree burglary as defined by Florida law, we hold that the offense of conviction falls within the ACCA's residual clause. We also reaffirm that the ACCA's residual clause is not unconstitutional.

I.

In 1999, Timothy Phillips was convicted of a third-degree felony for burglary of a structure. Florida defines burglary as " entering or remaining in a dwelling, a structure, or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain." Fla. Stat. § 810.02(1)(a).[1] Subsection (4) provides:

Burglary is a felony of the third degree, . . . if, in the course of committing the offense, the offender does not make an assault or battery and is not and does not become armed with a dangerous weapon or explosive, and the offender enters or remains in a:

Page 1049

(a) Structure, and there is not another person in the structure at the time the offender enters or remains[.]

Id. § 810.02(4)(a).

In 2012, Philips pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The Presentence Report determined that Phillips qualified for an enhanced sentence under the ACCA, concluding that his Florida conviction was a burglary as defined in 18 U.S.C. § 924(e)(2)(B)(ii).[2]

Phillips objected to the ACCA enhancement on three grounds. First, he argued that his prior conviction was not categorically a generic burglary within the meaning of § 924(e)(2)(B)(ii) under Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and that the government had failed to prove that his was a generic burglary with appropriate Shepard documents, see Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). Second, he argued that the ACCA's residual clause did not apply because the Florida statute defined third-degree burglary to exclude the ...


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