United States of America v. Brandon Phillips

St. Louis, Missouri criminal defense lawyer represented the Defendant charged with drug trafficking.



Phillips agreed to plead guilty to a felon-in-possession charge. See 18 U.S.C.

§ 922(g)(1). At sentencing, the presentence investigation report recommended a

range that was driven, in large part, by his prior convictions. See U.S.S.G.

§ 4A1.1(a); see also Mo. Rev. Stat. § 195.211(1) (2016) (possession with intent to

distribute a controlled substance). He objected on the ground that it "overstate[d]”

his criminal history because "the State of Missouri by referendum ha[d] legalized

possession of marijuana.” See Mo. Const. art. XIV, § 2.1 ("mak[ing] marijuana legal

under state and local law”). He wanted the district court, like Missouri, to "revisit[]”

its "views” on marijuana.



The court overruled the objection and added that it "would [have] impose[d]

the same sentence” regardless, even if it had to do so "by way of variance or

otherwise.” It then declared that "under 21 [U.S.C. §] 862(a)(1)(C), Mr. Phillips is

permanently ineligible for federal benefits.”



At the time, Phillips's marijuana convictions were still on the books, even

though the referendum required "expungement of the criminal history records of all

misdemeanor marijuana offenses.” Mo. Const. art. XIV, § 2.10(8)(a). The last one

did not come off until roughly 18 months later.1 Now that the process is complete,

he believes the changes to his criminal history require resentencing.



* * *



If it was, Phillips's burden would be high. The sentencing decision must have

not just been wrong, but "clearly or obviously wrong.” Nunez-Hernandez, 43 F.4th

at 861 (emphasis added) (citation and brackets omitted). Here, however, there are

no clear answers about "whether [the] conviction[s] [were] properly included.”

United States v. Townsend, 408 F.3d 1020, 1024 (8th Cir. 2005) (quoting United

States v. Hines, 133 F.3d 1360, 1363 (10th Cir. 1998)). For one thing, the timing

raises tricky questions about retroactivity. For another, why Missouri went down the

expungement route matters. Some "expunged convictions” do "not count[],”

U.S.S.G. § 4A1.2(j), like those based on "constitutional invalidity, innocence, or a

mistake of law,” Townsend, 408 F.3d at 1025. Others do, when the reason is

"permit[ting] . . . a clean start . . . [or] restor[ing] some civil rights.” Id.; see id. at

1024 (emphasizing that application of the Sentencing Guidelines is a matter of

"[f]ederal law, not state law,” so "[a] state's use of the term 'expunge' is not

controlling” (quoting Hines, 133 F.3d at 1363)). It is not "obvious” which box

Phillips's convictions fit into, meaning any forfeited error could not have been

"plain.” Puckett v. United States, 556 U.S. 129, 135 (2009) (explaining that

"reasonable dispute” precludes plain error).



* * *



The federal-benefits ban is a different story. The challenge to it also comes

too late, but it is the sort of unambiguous and prejudicial mistake that plain-error

review can fix. See Robinson v. Norling, 25 F.4th 1061, 1062 (8th Cir. 2022)

(recognizing that a forfeited argument "is not always lost”). There are three

mandatory requirements: "(1) [an] 'error,' (2) that is 'plain,' and (3) that 'affect[ed]

substantial rights.'” Johnson v. United States, 520 U.S. 461, 467 (1997) (quoting

United States v. Olano, 507 U.S. 725, 732 (1993)).



The first two do not pose a problem. The federal-benefits ban covers only

"individual[s] who [are] convicted of any Federal or State offense consisting of the

distribution of controlled substances.” 21 U.S.C. § 862(a)(1)(C) (emphasis added).



In short, drug distributors, not gun possessors.



As far as his federal conviction is concerned, Phillips only possessed a

firearm, not drugs. See United States v. Coleman, 961 F.3d 1024, 1027 (8th Cir.

2020) (listing the elements of a felon-in-possession conviction). And even his prior

Missouri marijuana convictions were for possessing drugs, not distributing them.

For those reasons, applying the statute to him "depart[ed] so far from the text that it

[wa]s clearly incorrect as a matter of law.” United States v. Lachowski, 405 F.3d

696, 698–99 (8th Cir. 2005) (noting that a "lack of [controlling] precedent” on an

issue "does not prevent a finding of plain error”); see United States v. Gardner, 32

F.4th 504, 533 (6th Cir. 2022) (holding that the statute requires a conviction with

"'actual distribution[]' or a completed delivery” (quoting United States v. Williams,

541 F.3d 1087, 1090 (11th Cir. 2008) (per curiam))); United States v. Silva-De

Hoyos, 702 F.3d 843, 849 (5th Cir. 2012) (agreeing that a crime that "does not

contain distribution as an element . . . is not a distribution offense under § 862(a)”);

United States v. Jacobs, 579 F.3d 1198, 1199 (10th Cir. 2009) ("[Section] 862(a)[]

reaches only those crimes that include distribution as an element.”).



The effect on Phillips's substantial rights is just as easy to see. See Olano,

507 U.S. at 734. Going forward, he cannot receive "any grant, contract, loan,

professional license, or commercial license provided by an agency of the United

States or by appropriated funds of the United States.” 21 U.S.C. § 862(d)(1)(A).

Except for relying on a clearly inapplicable statute, the district court had no other

avenue for imposing these restrictions. Cf. id. § 862(a)(1)(C) (making "a third or

subsequent” drug-distribution conviction the only trigger). In plain-error terms, "the

outcome of the proceeding would have been different,” at least as far as the ban is

concerned. Greer v. United States, 593 U.S. 503, 508 (2021) (citation omitted).



Now we must decide whether to correct the mistake, which depends on

whether it "seriously affect[s] the fairness, integrity, or public reputation of judicial

proceedings.” Johnson, 520 U.S. at 467 (alteration in original) (quoting Olano, 507

U.S. at 732). Although not every mistake deserves fixing, see Olano, 507 U.S. at

737 (noting that automatic relief would make "the discretion afforded by Rule

52(b) . . . illusory”), this one does. Phillips already faces a lengthy prison sentence.

Using a plainly inapplicable statute to pile lifelong professional and financial

penalties on top would undermine the "integrity [and] public reputation of judicial

proceedings.” Rosales-Mireles v. United States, 585 U.S. 129, 137 (2018) (quoting

Olano, 507 U.S. at 736); see id. at 140 (suggesting that errors "based on . . .

mistake[s] . . . by the Probation Office, which works on behalf of the District Court,”

are particularly damaging). Not to mention raise serious "fairness” concerns, id. at

137 (quoting Olano, 507 U.S. at 736), because no one else convicted of illegal

firearm possession faces the same punishment, see 21 U.S.C. § 862(a)–(b) (covering

only drug traffickers and possessors).



Similar considerations also explain why Phillips can raise this issue despite

an appeal waiver in his plea agreement. Regardless of its scope, "a defendant [still]

has the right to appeal an illegal sentence.” United States v. Andis, 333 F.3d 886,

891 (8th Cir. 2003) (en banc) (explaining that "we . . . refuse to enforce” appeal

waivers if "do[ing] so would result in a miscarriage of justice”). And however

"narrow” the illegal-sentence exception might be, it covers a sentence "not

authorized by law,” like the one here. Id. at 892 (citation omitted)

We accordingly vacate the federal-benefits ban, see 28 U.S.C. § 2106, but

otherwise affirm the judgment of the district court.