United States v. Phillips, Docket No. 04-2166-cr (2d Cir. Dec. 7, 2005) (Walker, Hall, Gibson (by desig’n)): Many had hoped that Booker‘s demotion of the Guidelines to mere advisory status would, at the very least, put an end to the endless stream of mind-numbing opinions analyzing Guidelines minutia churned out by the Circuit week after week. That hope has proven unfounded, as this decision again confirms.
The Court holds that unadjudicated juvenile conduct can constitute a predicate offense under a now-repealed version of the rarely seen enhancement under § 4B1.5(b), calling for a 5-level enhancement if the defendant, convicted of a qualifying sex crime, previously “engaged in a pattern of criminal activity involving prohibited sexual conduct.” U.S.S.G. § 4B1.5(b) (2002 ed.). Those interested in how the Court came to this fascinating conclusion are on their own. See Op. at 9-17. Suffice it to say that the Court made no mention of the fact that this outcome contradicts the spirit of Apprendi, Blakely, Ring, and Booker, if not the letter of Breyer’s ju-jitsu remedial opinion.
The decision also mysteriously remands for further fact-finding because the district court failed to “explicitly state which statutory offenses constitute the ‘prohibited sexual conduct'” previously engaged in by Phillips. Op. at 20. This appears formalistic given that the Court has already (1) affirmed the district court’s adoption as fact the PSR’s finding that Phillips, when 15 or 16 years old, sexually molested a 7 or 8 year old boy, Op. at 19; and (2) noted that both 18 U.S.C. § 2243 and N.Y. Penal Law §§ 30.00, 130.50(1) & (2), criminalize such behavior, Op. at 12-13. The remand will surely be a complete waste of time — but what is that when Justice so demands!