United States v. Lavelle Phillips, 827 F.3d 1171

Phillips was arrested after police smelled marijuana and found drugs and, later, after fleeing from officers he dropped a .45 handgun, a high-capacity magazine, and his wallet which contained ID and a bail receipt.
He pleaded guilty to being a felon in possession of a firearm (18 U.S.C. § 922(g)(1)) and separately pleaded guilty to drug distribution charges; the cases were consolidated for sentencing.
The district court calculated a Guidelines range of 37–46 months, considered the § 3553(a) factors, and varied upward to impose concurrent 57‑month sentences.
On appeal Phillips raised (1) an unpreserved claim of procedural error at sentencing (reviewed for plain error) and (2) a de novo Second Amendment challenge to § 922(g)(1) insofar as his prior misprision‑of‑felony conviction served as the predicate.
The prior conviction was for misprision of felony (18 U.S.C. § 4), a federal offense punishable by up to three years’ imprisonment that involves concealing knowledge of a felony rather than reporting it.

Issue	Phillips' Argument	Government's Argument	Held
Procedural error at sentencing (plain‑error review)	District court made comments suggesting policy disagreements with Sentencing Commission and thus procedurally erred in imposing an upward variance	District court reviewed materials, acknowledged advisory nature of Guidelines, considered § 3553(a) factors, and explained its reasons	No plain error—the court adequately considered Guidelines and § 3553(a) and explained the upward variance
Second Amendment challenge to § 922(g)(1) based on misprision predicate	Misprision is a non‑violent, passive inaction crime and cannot constitutionally serve as a felon predicate to revoke Second Amendment rights	Under Heller and Ninth Circuit precedent felons can be categorically disqualified; misprision historically has active concealment elements and has long been a federal felony, so it may serve as a predicate	Denied—precedent (Heller, Vongxay) forecloses the challenge; misprision is not purely passive and can constitutionally serve as a § 922(g)(1) predicate

District of Columbia v. Heller, 554 U.S. 570 (2008) (recognizes individual right to possess firearms but identifies longstanding prohibitions, including felon bans, as presumptively lawful)
United States v. Vongxay, 594 F.3d 1111 (9th Cir. 2010) (upholds § 922(g)(1) against Second Amendment challenge; felons categorically different)
United States v. Rangel, 697 F.3d 795 (9th Cir. 2012) (explains when a sentencing court’s explanation avoids reversible plain error)
United States v. Valencia‑Barragan, 608 F.3d 1103 (9th Cir. 2010) (discusses plain‑error review for unpreserved sentencing objections)
United States v. Chick, 61 F.3d 682 (9th Cir. 1995) (governs de novo review of certain constitutional claims)
United States v. Hodges, 566 F.2d 674 (9th Cir. 1977) (interprets misprision to include active concealment)
United States v. Ciambrone, 750 F.2d 1416 (9th Cir. 1984) (clarifies that mere silence alone may not constitute misprision)
Bowsher v. Synar, 478 U.S. 714 (1986) (First Congress’ actions provide contemporaneous evidence of constitutional meaning)