Philipps: Attempt qualifies as drug conviction

In United States v. Phillips, No. 04-13720 (11th Cir. June 22, 2005), the Court (Carnes, Marcus, Kravitch) affirmed a seventy-month sentence imposed on a defendant who entered a plea of guilty to one count of illegal reentry in violation of 8 U.S.C. § 1326. The Court resolved two issues of first impression in the Circuit. First, the Court rejected Mr. Phillips' claim that his prior state conviction for attempted sale of a controlled substance did not qualify as a drug trafficking offense under U.S.S.G. § 2L1.2. The Court noted that the commentary to § 2L1.2 expressly included "attempting to commit such [drug trafficking] offenses," in the definition of drug trafficking offenses that warrant a 16-level increase. Next, the Court rejected Mr. Phillips' claim that his state term of parole was prematurely terminated when he was deported. Mr. Phillips was released on parole in October 2002 and deported in December 2002. His term of parole was set to expire in February 2004. Mr. Phillips unlawfully reentered the United States in January 2004. The district court added two criminal history points to the guidelines calculation under § 4A1.1(d) because the offense was committed while Mr. Phillips was under a "criminal justice sentence." The Court noted that the commentary to that section defined a criminal justice sentence to include supervisory sentences "although active supervision is not required." The Court thus reasoned that Mr. Phillips' term of parole continued after his deportation even though he was not being actively supervised, and that the district court properly added the two criminal history points. Finally, the Court rejected a preserved Booker claim noting that enhancements based on prior convictions do not implicate the Sixth Amendment. As to the statutory Booker error, the Court held that the error was harmless because the district court had issued an identical 70-month alternative sentence in case the guidelines were voided.