                       FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                   Nos. 14-10448
           Plaintiff-Appellee,                    14-10449

                  v.                            D.C. Nos.
                                          2:12-cr-00292-MCE-1
 LAVELLE PHILLIPS,                        2:13-cr-00398-MCE-1
        Defendant-Appellant.
                                                 OPINION


      Appeal from the United States District Court
          for the Eastern District of California
 Morrison C. England, Jr., Chief District Judge, Presiding

                 Submitted December 7, 2015*
                   San Francisco, California

                        Filed July 6, 2016

             Before: Alex Kozinski, Jay S. Bybee,
             and Morgan Christen, Circuit Judges.

                  Opinion by Judge Bybee;
                Concurrence by Judge Christen




  *
    The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2                  UNITED STATES V. PHILLIPS

                           SUMMARY**


                           Criminal Law

    The panel affirmed the district court’s judgments in cases
in which the defendant was convicted and sentenced
following his guilty pleas to possession of drugs with intent
to distribute and being a felon in possession of a firearm.

   The panel held that the district court committed no
procedural error at sentencing.

     The panel held that United States v. Vongxay, 594 F.3d
1111 (9th Cir. 2010), which held that felons are categorically
different from the individuals who have a fundamental right
to bear arms, forecloses the defendant’s argument that it
violates the Second Amendment for misprision of felony, a
non-violent and purely passive crime, to serve as a predicate
for his felon-in-possession conviction under 18 U.S.C.
§ 922(g)(1). The panel wrote that there are good reasons to
be skeptical of the constitutional correctness of categorical,
lifetime bans on firearm possession by all “felons.” The
panel wrote that although the defendant is right that
misprision is not a violent crime, he is wrong about
misprision of felony being purely passive, where the crime
has long been interpreted to contain some element of active
concealment. The panel wrote that it was hard pressed to
conclude that a crime that has always been a federal felony
cannot serve as the basis of a federal firearm ban simply
because its actus reus may appear innocuous.

  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                UNITED STATES V. PHILLIPS                    3

    Concurring, Judge Christen wrote that because binding
precedent forecloses the defendant’s Second Amendment
challenge, she would not engage in further analysis of it.


                         COUNSEL

Douglas Beevers, Assistant Federal Defender; Heather E.
Williams, Federal Defender; Federal Defenders of the Eastern
District of California, Sacramento, California; for Defendant-
Appellant.

Jason Hitt, Assistant United States Attorney; Camil A.
Skipper, Appellate Chief; Office of the United States
Attorney, Sacramento, California; for Plaintiff-Appellee.


                         OPINION

BYBEE, Circuit Judge:

    Lavelle Phillips pleaded guilty to possession of drugs with
intent to distribute, as well as being a felon in possession of
a firearm. He was sentenced to 57 months in prison. On
appeal he asks us to invalidate his sentence as procedurally
flawed and to hold that his conviction violates the Second
Amendment. We decline both invitations and affirm.

                    I. BACKGROUND

    Police officers approached Phillips while he was in his
car. They smelled marijuana and noticed a partially-empty
bottle of alcohol, and tried to arrest him. Phillips violently
resisted and fled. After finally subduing him and searching
4                UNITED STATES V. PHILLIPS

Phillips’s car, police found drugs, scales, and money. Three
days later, Phillips was released on bail.

    Only a few months after that, a different set of officers
came upon Phillips talking with another man in front of a
home. As they approached, Phillips fled. And this time he
got away, but not before dropping a .45 caliber handgun, a
high capacity magazine, and his wallet, complete with several
forms of identification and his recent bail receipt.

    Phillips was indicted in two separate cases. In August of
2012, he was brought up on charges of being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1).
He filed a motion to dismiss the indictment, arguing that
§ 922(g)(1) was unconstitutional, as applied, under the
Second Amendment. The district court denied the motion.
Phillips then pleaded guilty. In December of 2013, Phillips
was separately indicted for possession of various drugs with
intent to distribute. Early the next year he pleaded guilty to
these drug charges as well. The district court then
consolidated both cases for sentencing purposes.

    At sentencing the district court ultimately calculated a
Guidelines range of 37 to 46 months. The district court
reviewed all the relevant sentencing materials and considered
the particulars of Phillips’s case (e.g., that he fled police, had
an extended magazine with his gun, etc.). Then it ran through
the relevant factors under 18 U.S.C. § 3553(a) and varied
upward to impose concurrent 57 month sentences on both the
gun and drug charges. Phillips timely appealed. He argues
that his sentence was procedurally flawed and that his
conviction for being a felon in possession violates the Second
Amendment. We review the former claim for plain error,
since Phillips never raised these particular objections below,
                 UNITED STATES V. PHILLIPS                    5

United States v. Valencia-Barragan, 608 F.3d 1103, 1108
(9th Cir. 2010), while we review the latter claim de novo,
United States v. Chick, 61 F.3d 682, 686 (9th Cir. 1995).

                       II. ANALYSIS

A. Procedural Error at Sentencing

    We can easily dismiss Phillips’s procedural error
argument. When we review sentencing for plain error,
“reversal is not justified where the [district] court review[ed]
and listen[ed] to the defendant’s arguments, state[d] that it
has reviewed the criteria set forth in § 3553(a), and then
impose[d] a sentence, explaining both the sentence and the
justification for the decision.” United States v. Rangel,
697 F.3d 795, 806 (9th Cir. 2012). That is precisely what
happened here.

    The district court read all relevant materials, understood
the proper role of the guidelines (i.e., that they “are advisory
and not mandatory”), considered the relevant factors under
§ 3553(a), and decided to vary upward from the Guidelines
range based on Phillips’s particular circumstances.
Specifically, the court noted that Phillips had come into
federal court more than once, understood “right and wrong”
but kept making “incredibly stupid decisions,” and had a
penchant for running from the police. We discern no error
here, let alone a plain one.

    Phillips’s arguments to the contrary are based
entirely—and admittedly—on speculation of the first order.
Phillips believes that throughout the sentencing, the judge
made “vague comments” that “appear to reject several of the
Sentencing Commission’s basic guidelines.” He concludes
6                UNITED STATES V. PHILLIPS

that these “policy disagreements” ranged from the district
court’s belief that a six-level enhancement for high capacity
magazines was “too lenient,” to a disagreement with giving
prior convictions that receive prison time only “3 criminal
history points.” All of Phillips’s conclusions are reached, of
course, in splendid isolation from the record, for, as he
frankly admits in his brief, the district court “never expressly
mentioned such a policy disagreement.” If the district court
judge harbored any policy disagreements, he appropriately
kept them to himself and gave no indication that they
influenced the sentence whatsoever. Phillips’s sentencing,
even if not perfect, was about as much as anyone could ask
for, and the court committed no procedural error.

B. Second Amendment Claim

    Phillips’s other argument—based on his motion to
dismiss the indictment (for felon in possession) on Second
Amendment grounds—is more significant. The predicate for
Phillips’s § 922(g)(1) conviction was a prior conviction for
“misprision of felony.” 18 U.S.C. § 4. Misprision of felony
consists of “having knowledge of the actual commission of a
felony cognizable by a court of the United States,” and
“conceal[ing] [it]” by not “mak[ing] known the same [as soon
as possible] to some judge or other person in civil or military
authority under the United States.” Id. It is punishable by a
fine and up to three years in prison. Id.

    Phillips argues that misprision of felony is a non-violent,
“passive crime of inaction,” and that permitting it to serve as
a predicate for his § 922(g)(1) conviction violates the Second
Amendment. Although Phillips’s situation presents some
otherwise interesting issues of Second Amendment
                    UNITED STATES V. PHILLIPS                            7

jurisprudence, his claim is ultimately foreclosed by our
precedent.

     The Second Amendment protects the right to “keep and
bear arms.” U.S. Const. amend. II. The Supreme Court’s
landmark decision in District of Columbia v. Heller, 554 U.S.
570 (2008), held that this right encompasses an individual
right to possess a functioning firearm in the home for the
lawful purpose of self defense. Id. at 595, 635. But the Court
was careful to add a caveat, instructing the lower courts that
its holding did not “cast doubt on longstanding prohibitions
on the possession of firearms by felons . . . [,]” id. at 626–27,
adding that such measures were “presumptively lawful,” id.
at 627 n.26.

    Based on this language, we held in United States v.
Vongxay, 594 F.3d 1111 (9th Cir. 2010), that “felons are
categorically different from the individuals who have a
fundamental right to bear arms,” and we accordingly upheld
18 U.S.C. § 922(g)(1) against a Second Amendment
challenge. Id. at 1115; see also Van Der Hule v. Holder,
759 F.3d 1043, 1050–51 (9th Cir. 2014) (relying on Vongxay
to again uphold 18 U.S.C. § 922(g)(1) as constitutional);
United States v. Chovan, 735 F.3d 1127, 1144–45 (9th Cir.
2013) (Bea, J., concurring) (“The Court in Heller seemed to
equate the status of a felon . . . with a presumptive
disqualification from the Second Amendment right.”). Our
decision in Vongxay forecloses Phillips’s argument, and we
accordingly affirm the district court’s denial of Phillips’s
motion to dismiss the indictment.1


  1
     Phillips argues that Vongxay is not good law. He contends that it
conflicted with circuit precedent when it relied, in part, on United States
v. Younger, 398 F.3d 1179 (9th Cir. 2005), a pre-Heller case that held that
8                   UNITED STATES V. PHILLIPS

    Nevertheless, there are good reasons to be skeptical of the
constitutional correctness of categorical, lifetime bans on
firearm possession by all “felons.” Heller’s caveat endorsed
only “longstanding” regulations on firearms, naming felon
bans in the process. Heller, 554 U.S. at 626–27. Yet courts
and scholars are divided over how “longstanding” these bans
really are.2


there is no individual right to bear arms under the Second Amendment.
See Vongxay, 594 F.3d at 1116. But Vongxay acknowledged Heller’s
holding—that there is an individual right under the Second
Amendment—notwithstanding the panel’s assertion that it was “still
bound by Younger.” Id. (“[O]ur holding is buttressed by the fact that
Younger upheld the very type of gun possession restriction that the
Supreme Court deemed ‘presumptively lawful’ [in Heller].”).

      If the panel had truly considered itself bound by Younger in all
respects, it would not have analyzed the Second Amendment question at
all, since there would have been no claim to an individual right. If Phillips
believes that Vongxay is inconsistent with Heller, his remedy in this court
is to seek rehearing en banc.
    2
       For instance, some view bans on felon firearm possession as
historically stemming from the common law practice of forfeiture. See,
e.g., Chovan, 735 F.3d at 1144 (Bea, J., concurring) (justifying blanket
felon bans based on the idea that at common law, “felonies resulted in
forfeiture of property and rights”); Don B. Kates, Jr., Handgun Prohibition
and the Original Meaning of the Second Amendment, 82 Mich. L. Rev.
204, 266 (1983) (“Felons simply did not fall within the benefits of the
common law right to possess arms. That law punished felons with
automatic forfeiture of all goods, usually accompanied by death.”); Don
B. Kates, Jr. & Clayton E. Cramer, Second Amendment Limitations and
Criminological Considerations, 60 Hastings L.J. 1339, 1363 (2009)
(doubling down on the historical pedigree of the felon ban, but conceding
it would be “next to absurd” to claim that conviction for modern day
felonies like income tax evasion or antitrust violations would disqualify
someone from owning a firearm). Others disagree, however, finding little
to no historical justification for the practice. See, e.g., United States v.
Skoien, 614 F.3d 638, 640 (7th Cir. 2010) (en banc) (observing that first
                     UNITED STATES V. PHILLIPS                               9

     We understand Phillips’s argument here to be different,
however. He contends that misprision is non-violent and
purely passive and accordingly cannot constitutionally serve
as a basis for depriving him of his right to possess a firearm.
Although he is right that misprision is not a violent crime, he
is wrong about it being “purely” passive. Both in the United
States, United States v. Hodges, 566 F.2d 674, 675 (9th Cir.
1977), and England, Sykes v. Director of Public Prosecutions
[1961] 3 All Eng. L. Rep. 33, the crime of misprision of
felony has long been interpreted to contain some element of
active concealment, though a mere lie might be sufficient, see
United States v. Ciambrone, 750 F.2d 1416, 1418 (9th Cir.
1984) (“A person who witnesses a crime does not violate
18 U.S.C. § 4 if he simply remains silent”). Not since the
days of the “hue and cry” has misprision consisted purely of
failing to report one’s knowledge of a felony. See Rollin M.
Perkins, Perkins on Criminal Law 514–15 (2d ed. 1969).3


federal statute disqualifying violent felons did not exist until 1938 and that
first complete federal felon ban did not exist until 1961); id. at 650 (Sykes,
J., dissenting) (“The historical evidence [on categorical, lifetime exclusion
of felons] is inconclusive at best.”); C. Kevin Marshall, Why Can’t Martha
Stewart Have a Gun? 32 Harv. J.L. & Pub. Pol’y 695, 708–14 (2009)
(responding to Kates, “The English right to have arms for self-defense that
developed after being announced in the 1689 Declaration of Rights did not
specifically exclude ‘felons.’ . . . The relevant issue is not whether one
forfeited ‘all goods’—implicitly one’s guns—upon a felony conviction.
One did at common law forfeit personal property . . . upon [felony]
conviction . . . . But it did not follow that one could not thereafter purchase
and hold new personal property—including a gun.”); id. at 708
(“[R]ecognizing the hazard of trying to prove a negative, one can with a
good degree of confidence say that bans on convicts possessing firearms
were unknown before World War I.”).
 3
   The English “hue and cry” was a duty, at least since the passage of the
Statute of Winchester in 1285, requiring any private citizen who became
aware of the commission of a felony to publically (“with horn and with
10                  UNITED STATES V. PHILLIPS

That crime never crossed the Pond, as it was understood as
being inconsistent with American values. See Marbury v.
Brooks, 20 U.S. (7 Wheat) 556, 575–76 (1822) (Marshall,
C.J.) (“It may be the duty of a citizen to accuse every
offender, and to proclaim every offence which comes to his
knowledge; but the law which would punish him in every
case for not performing this duty is too harsh for man.”);
Perkins, supra, at 514–17. So Phillips’s pure-passivity
argument falls short.

     And assuming the propriety of felon firearm bans—as we
must under Supreme Court precedent and our own—there is
little question that Phillips’s predicate conviction for
misprision of felony can constitutionally serve as the basis for
a felon ban. The statute under which Phillips was convicted
here, 18 U.S.C. § 4, is functionally identical to its
predecessor, enacted by the First Congress as a part of the
Crimes Act of 1790 (prior to the ratification of the Second
Amendment). And it similarly made misprision of felony a
felony.4 Because actions of the First Congress provide


voice”) call the community together to pursue the felon “from town to
town, and from county to county” until apprehended. 4 William
Blackstone, Commentaries on the Laws of England *290 (1769). Failure
by either private citizens or the sheriff to discharge this duty was
criminally punished, id. at *290–91, though some have contended that
“the absence of a reported decision during the four hundred years since the
offence first crept into a book” suggests the purely passive form of this
crime was “largely theoretical,” Perkins, supra, at 514–15 (internal
quotation marks omitted).
 4
   Compare Crimes Act of 1790, 1 Stat. 113, Sec. 6 (“[I]f any person or
persons, having knowledge of the actual commission of . . . [a] felony . . .
within any . . . place . . . under the sole and exclusive jurisdiction of the
United States, shall conceal, and not as soon as may be disclose and make
known the same to some one of the judges or other persons in civil or
                    UNITED STATES V. PHILLIPS                            11

“‘contemporaneous and weighty evidence’ of the
Constitution’s meaning,” Bowsher v. Synar, 478 U.S. 714,
723 (1986) (quoting Marsh v. Chambers, 463 U.S. 783, 790
(1983)), we are hard pressed to conclude that a crime that has
always been a federal felony cannot serve as the basis of a
felon firearm ban, simply because its actus reus may appear
innocuous.5


military authority under the United States . . . such person or persons shall
be adjudged guilty of misprision of felony, and shall be imprisoned not
exceeding three years, and fined not exceeding five hundred dollars.” ),
with 18 U.S.C. § 4 (“Whoever, having knowledge of the actual
commission of a felony cognizable by a court of the United States,
conceals and does not as soon as possible make known the same to some
judge or other person in civil or military authority under the United States,
shall be fined under this title or imprisoned not more than three years, or
both.”).
 5
    Our holding does not address, however, the question of whether there
are limits on Congress’s and the States’ ability to define any old crime as
a felony and thereby use it as the basis for a § 922(g)(1) conviction,
consistent with the Second Amendment. Misprision of felony was, in
England, only a misdemeanor if committed by “a common person” (as
opposed to “a public officer,” in which case the crime was a felony).
Blackstone, supra, at *121. What little evidence there is of American
state misprision law also suggests it was treated as a misdemeanor. See
State v. Wilson, 67 A. 533, 533–34 (Vt. 1907); Perkins, supra, at 514–17.
Because the First Congress made misprision a felony prior to the
ratification of the Second Amendment, we presume that Congress (and by
extension, the States) have some power to change crimes that were
misdemeanors into felonies and thereby make them the basis of a felon
firearm ban. It may be that Congress’s and the States’ power in this
regard is unfettered, or it may be that only crimes that were treated as
felonies at the Founding can serve as the basis for depriving someone of
his or her Second Amendment rights. Can Congress or the States define
petty larceny as a felony? Of course. Can a conviction for stealing a
lollipop then serve as a basis under § 922(g)(1) to ban a person for the rest
of his life from ever possessing a firearm, consistent with the Second
Amendment? That remains to be seen.
12              UNITED STATES V. PHILLIPS

    In short, there may be some good reasons to be skeptical
about the correctness of the current framework of analyzing
the Second Amendment rights of felons. But in light of
Heller and Vongxay, those issues are beside the point here.

     AFFIRMED.



CHRISTEN, Circuit Judge, concurring:

    I fully join the Court’s rejection of Phillips’s procedural
challenge to his sentence. I also agree that our prior
precedent and Supreme Court precedent foreclose Phillips’s
argument that use of his prior conviction as a predicate
offense for his § 922(g)(1) conviction violates the Second
Amendment. Because binding precedent forecloses Phillips’s
Second Amendment argument, I would not engage in further
analysis or discussion of it. See Cetacean Cmty. v. Bush,
386 F.3d 1169, 1173 (9th Cir. 2004) (Commentary “made
during the course of delivering a judicial opinion, but . . .
unnecessary to the decision in the case” is “nonbinding dicta”
and is “not precedential.”).
