United States v. Phillips

U.S. Court of Appeals for the Eighth Circuit
United States v. Phillips, 633 F.3d 1147 (8th Cir. 2011)
2011 U.S. App. LEXIS 4748; 2011 WL 832510

United States v. Phillips

Opinion

PER CURIAM.

Troy Phillips pled guilty to one count of conspiracy to distribute in excess of 100 kilograms of marijuana, a violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(vii), 846. Pursuant to a plea agreement, the parties stipulated to a drug quantity of between 100 and 400 kilograms of marijuana and a base offense level of 26. See U.S.S.G. § 2D1.1(c)(7). The Presentence Investigation Report (“PSR”) recommended a two-level upward adjustment for obstruction of justice and a three-level downward adjustment for acceptance of responsibility for a total offense level of 25.

The PSR reported that in 2001 Phillips was convicted of “driving while barred” in violation of Iowa Code § 321.561. The PSR attributed one criminal history point to Phillips based on this conviction, which, when combined with a criminal history point attributable to a 2000 Iowa conviction for driving while intoxicated, gave Phillips a total of two criminal history points. Phillips filed an objection to the scoring of a criminal history point based on the conviction for driving while barred, which the district court 1 overruled. Because Phillips had a resulting criminal history category of II, the court determined that he was ineligible for safety-valve relief, see 18 U.S.C. § 3553(f)(1) (providing that the court is bound by the applicable statutory minimum sentence where the defendant has more than one criminal history *1148 point); U.S.S.G. § 501.2(a)(1), and sentenced him to the mandatory minimum of 60 months’ imprisonment, see 21 U.S.C. § 841(b)(1)(B) (prescribing a mandatory minimum sentence of 5 years’ imprisonment for violations of § 841(a) involving 100 or more kilograms of marijuana).

Phillips argues that the district court erroneously considered his conviction for driving while barred in calculating his criminal history points. 2 According to Phillips, the offense is a misdemeanor of a type exempted under U.S.S.G. § 4A1.2(c)(l). In its response brief, the Government counters that, although a misdemeanor, Phillips’s conviction for driving while barred is not “similar to” any of the exempted offenses listed in § 4A1.2(c)(l) and, accordingly, that the district court properly included the conviction in the criminal history calculation.

The parties’ characterization of their dispute favors trees to the exclusion of a much simpler forest — as the Government belatedly pointed out in a letter filed pursuant to Fed. R.App. P. 28(j). Under the advisory guidelines, the crime of driving while barred is considered a felony offense, not a misdemeanor. A “felony offense” for sentencing purposes includes any federal, state, or local offense punishable by death or a term of imprisonment exceeding one year, regardless of the actual sentence imposed. 3 § 4A1.2(o). And, unlike misdemeanors, all felony offenses are included in the calculation of a defendant’s criminal history. § 4A1.2(c)(1).

Although Iowa Code § 321.561 classifies the offense of driving while barred as an “aggravated misdemeanor,” the accompanying punishment under Iowa law is imprisonment for up to two years. Iowa Code § 903.1(2). Indeed, this court has confirmed, under similar circumstances, that a crime designated as an aggravated misdemeanor under Iowa law falls within the definition of a felony offense under the advisory guidelines. United States v. Postley, 449 F.3d 831, 832 (8th Cir. 2006); cf. United States v. Harrison, 261 Fed.Appx. 499, 500 (4th Cir. 2008) (unpublished per curiam). We therefore reiterate that an Iowa conviction for an aggravated misdemeanor is treated as a felony offense for purposes of § 4A1.2(c). As a result, Phillips’s conviction properly was included in calculating a criminal history category of II, and the district court did not err in determining that Phillips was ineligible for safety-valve relief.

For the foregoing reasons, the judgment of the district court is affirmed.

1

. The Honorable James E. Gritzner, United States District Judge for the Southern District of Iowa.

2

. It is undisputed that the district court properly assigned Phillips one criminal history point based on his 2000 conviction for driving while intoxicated. See U.S.S.G. § 4A1.2, comment, (n.5) (“Convictions for driving while intoxicated or under the influence (and similar offenses by whatever name they are known) are counted.”).

3

. It is therefore irrelevant that Phillips's conviction for driving while barred earned him only a sixty-day sentence, suspended after seven days.

Reference

Full Case Name
UNITED STATES of America, Appellee, v. Troy Edison PHILLIPS, Appellant
Cited By
5 cases
Status
Published