United States v. Jerry Phillips
2011 U.S. App. LEXIS 7047
6th Cir.2011Background
- Phillips pled guilty to failure to surrender for service of sentence under 18 U.S.C. § 3146 after absconding while awaiting reinstated imprisonment following a supervised release revocation.
- Phillips's original identity-fraud conviction under § 1028(a)(7) carried a maximum penalty of 15 years; he was sentenced to 41 months and three years of supervised release.
- The district court treated the underlying offense for § 3146(b) as the supervised release violation, arguing the maximum could be 2 years instead of 10 years.
- The government contends the underlying offense is the identity-fraud conviction, which would allow a 10-year maximum under § 3146(b)(1)(A)(i).
- The court held supervised release violations are not felonies or offenses triable in federal court and cannot serve as the underlying offense; the original conviction is the relevant offense.
- Applying the rule, Phillips’s underlying offense is his identity-fraud conviction, which is punishable by up to 15 years; thus the § 3146(b) maximum for failure to appear is 10 years, and a three-year sentence is within that limit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| What is the statutory maximum under § 3146(b)? | Phillips argues the Supreme Court’s framework ties max to the supervised release violation. | Phillips argues the underlying offense is the identity-fraud conviction. | Underlying offense is the original conviction; maximum is 10 years under § 3146(b). |
| Are supervised release violations felonies for § 3146(b) purposes? | Phillips treats the violation as an offense punishable by more than one year. | Phillips contends the violation is a crime under § 3156(a)(2) and a violation of an Act of Congress. | Supervised release violations are not felonies and cannot serve as the underlying offense. |
| Is the underlying offense triable in federal court for § 3146(b) purposes? | Argues the supervised release violation constitutes a triable offense. | Argues it is not triable as a criminal offense under the statute. | Supervised release violations are not triable as criminal offenses under § 3156(a)(2). |
| Should the original conviction be the § 3146(b) underlying offense? | If the supervised release violation is not the offense, the original identity-fraud conviction should be. | The original offense is the correct underlying conviction. | Yes; the original identity-fraud conviction is the underlying offense. |
| Did Apprendi or lenity arguments alter the result? | Claims Apprendi or lenity require a different maximum. | Argues the statute is unambiguous; Apprendi and lenity do not apply. | Apprendi and lenity do not change the result; the statute is unambiguous. |
Key Cases Cited
- Johnson v. United States, 529 U.S. 694 (U.S. 2000) (supervised-release violations need not be crimes for sentencing purposes)
- United States v. Marvin, 135 F.3d 1129 (7th Cir. 1998) (supervised-release violations are not crimes; revocation proceedings differ from trials)
- United States v. Smith, 500 F.3d 27 (1st Cir. 2007) (underlying offense for § 3146(b) max can be original conviction)