                                                                           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                           NOT FOR PUBLICATION                             APR 16 2014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.




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