                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                               THIRD CIRCUIT
                                _____________

                                       No. 10-3706
                                      _____________

                          UNITED STATES OF AMERICA
                                     v.

                                   MAURICE PHILLIPS,
                                                  Appellant
                                     _____________

                      Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                             (Crim. No. 2-07-cr-00549-001)
                          District Judge: Hon. J. Curtis Joyner
                                     _____________

                                   Argued: May 23, 2014
                                     _____________

    BEFORE: McKEE, Chief Judge, CHAGARES, Circuit Judge, and THOMPSON,
                               District Judge.

                                  (Filed: October 16, 2014 )


WILLIAM MALLORY KENT [ARGUED]
1932 Perry Place
Jacksonville, Florida 32207

      Attorney for Appellant

ZANE DAVID MEMEGER
United States Attorney
United States Attorney’s Office


 The Honorable Anne E. Thompson, Senior District Judge of New Jersey, sitting by
designation.
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106

ROBERT A. ZAUZMER
Assistant United States Attorney
Chief of Appeals
United States Attorney’s Office
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106

LINWOOD C. WRIGHT, JR. [ARGUED]
Assistant United States Attorney
United States Attorney’s Office
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106

MAUREEN McCARTNEY
Assistant United States Attorney
United States Attorney’s Office
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106

      Attorneys for Appellee

                                    _____________

                                      OPINION
                                    _____________


McKEE, Chief Judge.

      Appellant Maurice Phillips appeals the convictions and sentences imposed after a

jury convicted him of a number of charges stemming from his role as the leader of the

Phillips Cocaine Organization (“PCO”). Among his numerous claims on appeal, Phillips

contends that the District Court erred in convicting and sentencing him for both drug

conspiracy (Count I) and operating a Continuing Criminal Enterprise (CCE) (Count II)

because, as the Supreme Court held in Rutledge v. United States, 517 U.S. 292 (1996),

                                            2
drug conspiracy is a lesser included offense of CCE. Moreover, he claims that his CCE

conviction should be vacated because the Court’s charge on the CCE offense failed to

instruct the jury that it must unanimously decide which violations constituted the

“continuing series of violations” underlying the charge, as required by the Supreme

Court’s decision in Richardson v. United States, 526 U.S. 813 (1999). For the reasons

that follow, we will vacate Phillips’s conviction and sentence for Count II, the CCE

charge. However, we will affirm the District Court with respect to all other issues raised

on appeal.1

                                 I.     BACKGROUND

       Phillips and ten co-defendants were indicted, convicted, and sentenced for their

involvement in the PCO, a large-scale interstate cocaine trafficking organization. Phillips

led the PCO from 1998 until he was apprehended in 2007. The PCO had outlets in

several jurisdictions, including New Jersey, Pennsylvania, New York, Maryland, the

District of Columbia, and Virginia.

       The indictment charged Phillips with eight violations relating to drug trafficking,

money laundering, and the murder of a cooperating witness. A jury convicted him on all

eight counts. Count I charged Phillips with conspiring to distribute five or more


1
  Phillips raises the following issues on appeal in addition to those just mentioned: (1)
Brady violations with respect to the disclosure of an FBI report as well as arrest records
of a government witness; (2) failure to suppress money seized from him; (3) expert
testimony from an FBI forensic examiner; and (4) that his mandatory life sentence for
operating a CCE and drug conspiracy convictions is inconsistent with Alleyne v. United
States, 133 S. Ct. 2151 (2013). We conclude that Phillips was unable to demonstrate
reversible error with respect to any of these issues and we therefore will affirm the
District Court’s rejection of each of those claims.
                                             3
kilograms of cocaine and Count II charged him with operating a CCE. The indictment did

not list which, if any, specific underlying drug law violations supported the CCE charge,

and the jury was not instructed that it needed to unanimously find that Phillips committed

three specific violations in order to convict him of operating a CCE. Phillips did not

object to the jury instructions or the indictment during his trial.

       At sentencing, Phillips received a life sentence for each of the three counts relating

to the murder of the cooperating witness, and he received a term of 240 months’

imprisonment for his role in the conspiracy’s money laundering activities. Supplemental

Appendix 3608. Phillips received a life sentence for his conviction of drug conspiracy

(Count I) and a separate life sentence for operating a CCE (Count II). Id.

       Phillips raises two issues for the first time on appeal: (1) whether the District

Court committed plain error by convicting and sentencing him for both the CCE and drug

conspiracy charges; and (2) whether the District Court committed plain error by failing to

provide an instruction requiring unanimity as to the underlying offenses constituting the

“continuing series of violations” in the CCE charge.

                                      II.     DISCUSSION

                                 A.         Standard of Review

       Because Phillips did not raise these two issues until his direct appeal, the District

Court’s decision is reviewed for plain error. See Johnson v. United States, 520 U.S. 461,

465-66 (1997). In order for an appellate court to correct an error to which the appellant

did not object at trial, the appellant must establish the following elements: (1) that an

error occurred (i.e., that a legal rule was violated), (2) that it was a plain error, and (3)

                                                 4
that the error affected his substantial rights. See United States v. Olano, 507 U.S. 725,

732-35 (1993). Where a district court’s decision was “clearly contrary to the law at the

time of the appeal,” that decision constitutes plain error and satisfies the first two prongs

of the Olano standard. Johnson, 520 U.S. at 468. An appellant bears the burden of

demonstrating an injury to substantial rights by demonstrating that the error “affected the

outcome of the district court proceedings.” Olano, 507 U.S. at 734.

                      B. Phillips’s Richardson and Rutledge Claims

       As previously noted, Phillips contends that the District Court erred by failing to

give the jury a unanimity instruction on Phillips’s CCE charge, and that he was wrongly

convicted of both conspiracy and CCE because conspiracy is a lesser included offense of

CCE. In its brief, the government concedes that both of Phillips’ convictions for

conspiracy and CCE cannot stand. See Rutledge, 517 U.S. at 303 (holding that convicting

a defendant for both drug conspiracy in violation of 21 U.S.C. § 846 and CCE in

violation of 21 U.S.C. § 848 is plain error because § 846 is a lesser included offense of §

848). The government also concedes that the district court erred by failing to give the

jury a unanimity instruction as to Phillips’s CCE charge.2 See Richardson, 526 U.S. at

818 (holding that, in order to convict someone of engaging in a CCE, the jury must be

unanimous as to which specific violations of the federal drug laws comprise the

“continuing series of violations” underlying the CCE charge).


2
 The government does not concede, however, that Phillips is entitled to relief on his
Richardson claim. Its position is that Phillips is unable to demonstrate that the District
Court’s failure to give the unanimity instruction prejudiced him, as he is required to do on
plain error review. See Olano, 507 U.S. at 734.
                                              5
       If Phillips prevails on his Richardson claim, the remedy would be to vacate

Phillips’s CCE conviction; if he prevails on his Rutledge claim, the remedy would be to

vacate either his conspiracy conviction or his CCE conviction. For this reason, and

because Phillips will serve life sentences for other crimes regardless of this Court’s

resolution of these issues, the government puts forth a proposal: It suggests that we

simply dismiss the CCE conviction (Count II), as doing so will remedy both the

Richardson and Rutledge problems with Phillips’s convictions. Appellee Brief 112-13.

The government asserts that this proposal serves the interests of judicial economy and

efficiency. We agree. Accord United States v. Richardson, 195 F.3d 316, 317 (7th Cir.

1999) (accepting a similar government proposal in similar circumstances).

       Thus, we will vacate Phillips’s CCE conviction on Count II and affirm his

conspiracy conviction on Count I. Phillips has won a Pyrrhic victory.

                                  III.   CONCLUSION

       For the reasons we have explained, we will vacate the conviction and judgment of

sentence imposed on Count II, but affirm the conviction and judgment of sentence

imposed on Count I.




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