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Phillips v. United States

United States Court of Appeals, Eleventh Circuit

February 23, 2017

ELROY A. PHILLIPS, Petitioner-Appellant,
UNITED STATES OF AMERICA, Respondent-Appellee.

         Appeal from the United States District Court for the Southern District of Florida D. C. Docket Nos. 9:08-cv-81283-JAL; 9:01-cr-08080-DMM-1

          Before MARCUS, DUBINA, and WALKER, [*] Circuit Judges.

          DUBINA, Circuit Judge

         This is an appeal from the district court's order denying Elroy Phillips's ("Phillips") motion to vacate his sentence pursuant to 28 U.S.C. § 2255. We granted Phillips a certificate of appealability ("COA") pursuant to 28 U.S.C. § 2253. After conducting oral argument, reading the parties' briefs, and reviewing the record, we affirm in part, vacate in part, and remand for resentencing.

         I. BACKGROUND

         A grand jury charged Phillips with numerous drug related offenses occurring from December 1999 to June 2001, and charged him with being a felon in possession of ammunition from October 2000 to November 1, 2000, and on June 8, 2001. Phillips proceeded to trial, and the jury found him guilty on one count of conspiracy to distribute less than five grams of crack cocaine, in violation of 21 U.S.C. § 846 (Count 1); one count of crack cocaine distribution, in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(C) (Count 9); one count of cocaine possession, in violation of 21 U.S.C. § 844(a) (Count 11); and two counts of possession of ammunition after a prior felony conviction, in violation of 18 U.S.C. § 922(g)(1) and § 924(e) (Counts 14 & 17). The jury acquitted Phillips on the remaining counts of the 21-count second superseding indictment. The district court imposed sentences of 360 months' imprisonment on Counts 1, 9, 14, and 17, each running concurrently with a 24 month sentence on Count 11.

         On appeal, we affirmed Phillips's convictions, but vacated his sentences. United States v. Phillips, 177 F.App'x 942 (11th Cir. 2006). The district court re-sentenced Phillips to 288 months' imprisonment on Counts 1 and 9, 24 months' imprisonment on Count 11, and 180 months' imprisonment on Count 14, all to run concurrent. The district court merged Count 17 with the sentence for Count 14. On appeal a second time, we affirmed the sentences. United States v. Phillips, 262 F.App'x 183 (11th Cir. 2008).

         In November 2008, Phillips filed a § 2255 motion to vacate and amended it numerous times. The district court determined that Phillips raised 19 claims for relief, and referred the matter for an evidentiary hearing. While preparing for the evidentiary hearing, the government re-interviewed Agent Michael Ghent ("Ghent"), an officer with the West Palm Beach Police Department ("WPBPD"), and a primary investigator in Phillips's underlying drug offenses. Ghent initially provided information to federal authorities about a drug purchase he and a confidential informant ("CI") made from Phillips on April 6, 2001. The authorities relayed that information to a magistrate judge reviewing the government's warrant applications for Phillips's arrest and the search of his home. After the magistrate judge issued the search warrant, officers found drug paraphernalia, a gun box, and ammunition in Phillips's home. Ghent also testified at trial that he conducted surveillance on Phillips from January to April 2001, and he and a CI participated in a controlled buy of crack cocaine from Phillips on April 6, 2001.

         During the preparation for the evidentiary hearing, the government discovered that not only had Ghent lied at trial, but, during the investigation and subsequent trial of Phillips, Ghent had been under investigation by his own police department for alleged criminal activities. The government investigated the allegations against Ghent, which included a charge that he engaged in a sexual relationship with his CI, used illegal substances, extorted a massage parlor, falsified information on government forms, and submitted a false sworn affidavit in a state criminal prosecution. After confirming that Ghent had provided false testimony at Phillips's trial and confirming that he may have committed criminal acts during the pertinent timeframe, the government agreed to join in Phillips's motion to vacate Counts 1, 9, 14, and 17. The parties jointly agreed that the conviction for Count 11 should remain.

         The district court granted in part and denied in part the § 2255 motion to vacate. In its order, the district court agreed with the parties that Phillips's conviction on Count 9 should be vacated because Ghent provided the only testimony about the April 6, 2001, drug transaction that supported that charge. On Count 1, the district court found ample co-conspirator testimony, apart from Ghent's perjured testimony, from which the jury could have concluded that Phillips was involved in a conspiracy to distribute five grams or less of crack cocaine.

         As to Counts 14 and 17, the district court found that the basis for these counts of conviction was the discovery of ammunition during a search of Phillips's residence pursuant to a valid search warrant. Although the probable cause affidavit supporting the application for the search warrant contained Ghent's false statements about the April 6, 2001, drug transaction, the district court noted other evidence that supported the probable cause affidavit, such as co-conspirator statements, Phillips's behavior during a brief search of his home, and Phillips's possession of cocaine during another encounter with police. Because the search was supported by probable cause without Ghent's false statements, the district court determined that the evidence obtained from the search would have been admissible. Thus, it concluded that these convictions were supported by sufficient valid evidence and there was no reasonable probability that the jury would have acquitted Phillips on these counts. Moreover, the district court reasoned that Ghent's testimony was not relevant to Phillips's convictions on Counts 14 and 17 because Ghent was not present during the execution of the search warrant. The district court denied Phillips's remaining claims for relief and denied him a COA. [1]


         We review de novo the district court's legal determinations on a 28 U.S.C. § 2255 motion to vacate and review for clear error the district court's factual findings. Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004).

         III. ...

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