FILED
NOT FOR PUBLICATION APR 16 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-50283
Plaintiff - Appellee, D.C. No. 3:11-cr-04465-H-1
v.
MEMORANDUM*
GARLAND PHILLIPS,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Marilyn L. Huff, District Judge, Presiding
Submitted April 8, 2014**
Pasadena, California
Before: BRIGHT,*** FARRIS, and HURWITZ, Circuit Judges.
The Defendant, Garland Phillips, challenges his conviction of two violations
of 18 U.S.C. § 841(a)(1), distribution of methamphetamine, and his sentence of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Myron H. Bright, Senior Circuit Judge for the U.S.
Court of Appeals for the Eighth Circuit, sitting by designation.
108 months incarceration and four years supervised release. This Court has
jurisdiction under 28 U.S.C. § 1291.
There was sufficient evidence to support Phillips’s conviction. When
reviewing challenges to the sufficiency of the evidence in a criminal case, the court
asks whether any rational trier of fact could have found the elements of the crime
beyond a reasonable doubt. United States v. Nevils, 598 F.3d 1158, 1161 (9th Cir.
2010) (en banc). Here, there was testimony from the alleged buyer and a
confession from the Defendant. There is no rule of law requiring that a fact-finder
rely on evidence of a certain type, whether eyewitness testimony or physical
evidence. The credibility of a witness is beyond the scope of appellate review.
United States v. Ramos-Atondo, 732 F.3d 1113, 1121 (9th Cir. 2013). Phillips’s
evidentiary challenge fails.
Phillips’s confession was not involuntary. The district court properly
allowed the jury to consider this evidence. The voluntariness of a confession is
reviewed de novo, United States v. Haswood, 350 F.3d 1024, 1027 (9th Cir. 2003),
and is determined by looking to the totality of the surrounding circumstances, with
the primary inquiry being whether or not the “defendant’s will was overborne by
[those] circumstances….” Doody v. Ryan, 649 F.3d 986, 1008 (9th Cir. 2011) (en
banc). Phillips’s involuntariness argument fails both factually and legally.
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Factually, no purportedly overbearing promises induced the confession: Phillips
admitted to the relevant conduct for the offense early in the interrogation, before
the discussion of leniency. Even were that discussion to have come before the
confession, such inducements have been held to be non-coercive in most cases. See
United States v. Harrison, 34 F.3d 886, 891 (9th Cir. 1994) (“[I]n most
circumstances, speculation that cooperation will benefit the defendant or even
promises to recommend leniency are not sufficiently compelling to overbear a
defendant’s will.”).
We refuse to address Phillips’s ineffective assistance of counsel claim.
These challenges are “generally inappropriate on direct appeal.” United States v.
McKenna, 327 F.3d 830, 845 (9th Cir. 2003). Phillips’s case does not fit within any
of the exceptions to this general rule.
Finally, Phillips’s 108 month sentence was substantively reasonable. In
determining substantive reasonableness, the totality of the circumstances is taken
into account so as to determine if “the district court committed a clear error of
judgment.” United States v. Ressam, 679 F.3d 1069, 1087 (9th Cir. 2012) (en
banc). Phillips was sentenced to the low-end of the Guidelines range for an offense
that involved remunerative trafficking in a harmful illegal drug. Moreover, he has
been convicted of battery, grand theft, and infliction of corporal injury on a spouse
3
in the past. Further,108 months is what the Defendant himself originally requested
as an alternate sentence to the statutory minimum.
AFFIRMED.
4