govinfo:USCOURTS-laed-2_13-cr-00286-16

UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF LOUISIANA 
 
UNITED STATES OF AMERICA 
 
 CRIMINAL ACTION 
VERSUS 
 
 NO. 13-286 
DUANE PHILLIPS 
 
 SECTION “R” (1) 
 
 
ORDER AND REASONS 
 
 
 Before the Court is defendant Duane Phillips’ s motion to correct a 
clerical error .1  The government opposes his  motion.2  For the following 
reasons, the Court denies Phillips’s motion. 
 
 
I. BACKGROUND 
 
On April 20, 2015, Duane Phillips pleaded guilty to conspiring  to 
commit sex trafficking in violation of 18 U.S.C. § 1594(c). 3  Phillips waived 
his right to appeal and collaterally challenge his conviction and sentence, but 
he retained the right to raise a claim of ineffective assistance of counsel in an 
appropriate proceeding.
4   On June 8, 2016, the Court accepted the plea 
 
1  R. Doc. 573. 
2  R. Doc. 575. 
3  R. Docs. 186 & 187. 
4  R. Doc. 187 at 2-3. 
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agreement and sentenced Phillips to 251 months of imprisonment followed 
by ten years of supervised release.5   
Phillips appealed his judgment to the Fifth Circuit.6  See United States 
v. Phillips, No. 16-30767, Doc. No. 00513832379 (5th Cir. Jan. 11, 2017).  The 
Fifth Circuit denied Phillips’s appeal , except that it reduced his term of 
supervised release from ten years to five years.7  The Supreme Court denied 
certiorari on October 30, 2017.8 
On May 29, 2018, Phillips moved to vacate his sentence under 28 
U.S.C. § 2255.9  This Court denied his motion. 10  Defendant again appealed 
to the Fifth Circuit. 11  The Fifth Circuit denied Phillips leave to appeal in 
forma pauperis and denied his request for a certificate of appealability. 12  
Phillips also moved for compassionate release, which this Court also 
denied.
13 
 
5  R. Doc. 374. 
6  R. Doc. 386. 
7  R. Doc. 443. 
8  R. Doc. 459. 
9  R. Doc. 478. 
10  R. Doc. 509. 
11  R. Doc. 512. 
12  R. Doc. 539. 
13  R. Doc. 561. 
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Phillips now asks the Court to correct what he characterizes as a clerical 
error.14  He contends that his only statute of conviction is 18 U.S.C. §1594(c), 
conspiracy to commit trafficking, but that his presentence investigation 
report and the Bureau of Prisons ’s (“BOP”) sentencing monitoring 
computation data for him indicate that he was convicted of violating both 18 
U.S.C. § 1594(c) and 18 U.S.C. § 1591, the substantive sex trafficking statute.15  
He argues this is a clerical error that this Court can correct under Rule 36 of 
the Federal Rules of Cr iminal Procedure. 16  He asserts that he needs the 
Court to rectify this error so that he can be eligible to receive time credit 
under the First Step Act, for which inmates convicted under 18 U.S.C. § 1591 
are ineligible.
17  Phillips also submitted what he titled a “Supplemental 
Motion to Correct Clerical Error,” in which he provides further argument in 
support of his original motion to correct a clerical error.
18  He also points out 
that the judgment in this case likewise references § 1591 in addition to § 
1594(c).  Because this document relates to his original motion, the Court will 
treat it as a supplemental memorandum in support of his original motion to 
correct a clerical error. 
 
14  R. Doc. 573. 
15  Id. 
16  Id. 
17  Id.   
18  R. Doc. 579. 
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The government opposes Phillips’s motion. 19  In its opposition, the 
government contends that Phillips pleaded guilty to, and was convicted of, 
violating both 18 U.S.C. § 1594(c) and 18 U.S.C. § 1591, so there is no error 
in the record for the Court to correct. 
The Court considers the parties’ arguments below. 
 
II. LEGAL STANDARD 
 
Federal Rule of Criminal Procedure 36 provides that a court “may at 
any time correct a clerical error in a judgment, order, or other parts of the 
record.”  Clerical errors are limited to “mindless and mechanistic mistakes.”  
United States v. Mackay, 757 F.3d 195, 200 (5th Cir. 2014) (quoting Matter 
of W. Tex. Mktg. Corp., 12 F.3d 497, 505 (5th Cir. 1994)).  Rule 36 does not 
allow a court to make substantive alterations to a sentence, and it “is not a 
vehicle for the vindication of the court’s unexpressed sentencing  
expectations, or for the correct of ‘errors made by the court itself.’”  United 
States v. Werber, 51 F.3d 342, 347 (2d Cir. 1995) (quoting United States v. 
Daddino, 5 F.3d 262, 264 (7th Cir. 1993)). 
 
 
 
 
 
19  R. Doc. 575. 
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III. DISCUSSION 
 
Phillips was convicted of violating  only 18 U.S.C. § 1594(c) , which 
provides that  “[w]hoever conspires with another to violate section 1591 shall 
be fined under this title, imprisoned for a term of years or for life, or both.”  
Phillips’s section 15 94(c) conviction was premised on his conspirac y to 
violate sections 1591(a)(1) and (a)(2), which provide that: 
Whoever knowingly – (1) in or affecting interstate commerce, 
or within the special maritime and territorial jurisdiction of 
the United States, recruits, entices, harbors, transports, 
provides, obtains, advertises, maintains, patronizes, or solicits 
by any means a person; or (2) benefits, financially or by 
receiving anything of value, from participation in a venture 
which has engaged in an act described in violation of 
paragraph (1), knowing . . . that means of force, threats of force, 
fraud, coercion . . . or any combination of such means will be 
used to cause the person to engage in a commercial sex act . . . 
shall be punished as provided in subsection (b). 
 
 The Second Superseding Indictment, the operative charging document 
for Phillips and his co-conspirators, brought three separate charges— Counts 
1, 4, and 7 — against Phillips.
20  Count 1 charged Phillips with conspiring to 
violate 18 U.S.C. §§ 1591(a)(1) and (a)(2), the substantive sex trafficking 
statute, in violation of § 15 94(c), the conspiracy statute. 21  Count 4 charged 
him of violating § 1591(a)(1), (a)(2), and (b)(1), the substantive sex trafficking 
 
20  R. Doc. 94. 
21  Id. at 2. 
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statute.22  Count 7 charged him with transporting a victim for prostitution in 
violation of 18 U.S.C. § 2421.23 
 Phillips pleaded guilty only to Count 1.24  The plea agreement expressly 
states that Phillips agreed to plead guilty only to “a violation of 18 U.S.C. § 
1594(c), conspiracy to commit 18 U.S.C. § 1591.” 25  The government agreed 
to dismiss the other counts in the Second Superseding Indictment, including 
Count 4, which charged him with violating § 1591.
26  At his rearraignment, 
he pleaded guilty to conspiring to violate §§ 1591(a)(1) and (a)(2), “all in 
violation of Title 18, United States Code, Section 1594(c).”
27  Before accepting 
his guilty plea, the Court asked Phillips whether he understood that he is 
“charged with conspiracy, that means the agreement to do that crime, not the 
actual crime itself.”
28  Phillips responded that he understood. 29  And at 
Phillips’s sentencing hearing, the Court reiterated that Phillips had been 
found guilty of one count of conspiracy to commit sex trafficking in violation 
of § 1594(c).30 
 
22  Id. at 3. 
23  Id. at 4. 
24  R. Doc. 187. 
25  Id. at 1. 
26  Id. 
27  R. Doc. 423 at 6:11-16. 
28  Id. at 10:15-17. 
29  Id. at 10:18. 
30  R. Doc. 425 at 128:3-14. 
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 Phillips is thus correct that the only statute he was convicted of 
violating is 18 U.S.C. § 1594(c).  Although Phillips conspired to violate § 1591, 
he was not convicted of violating that statute.  The government’s assertion 
that Phillips was convicted of violating both 18 U.S.C. §§ 1594(c) and 1591 is 
thus wrong.  No correction of the record is warranted in this case because the 
record contains no error as to Phillips’s conviction.  The presentence 
investigation report describes the offense as “Conspiracy to Commit Sex 
Trafficking,” and li sts 18 U.S.C. §§ 1594(c), 1591(a)(1), (a)(2).
31  Sections 
1591(a)(1) and (a)(2) are not conspiracy statutes.  Contrary to the 
government’s suggestion otherwise, the substantive statutes are listed only 
to describe which statutes Phillips conspired to violate.  Their inclusion does 
not mean that Phillips was convicted of both committing the underlying 
substantive offense and conspiring commit it.   
 The judgment likewise makes clear that Phillips was convicted of 
violating only 18 U.S.C. § 1594(c).  Nowhere does the judgment list 18 U.S.C. 
§ 1591 as a count of conviction.  The judgment clearly indicates that Phillips 
pleaded guilty only to Count 1 — conspiracy to commit sex trafficking — and 
 
31  R. Doc. 298 at 3. 
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shows that all the remaining counts against Phillips, including the char ge 
that he violated 18 U.S.C. § 1591, were dismissed.32 
This conclusion is consistent with persuasive authority.  In United 
States v. Warren, a defendant pleaded guilty to one count of a superseding 
information that charged him with conspiring to violate § 1591 in violation of 
§ 1594(c).  5 F.4th 1 -78, 1079 (9th Cir. 2021).  After he was sentenced, his 
judgment listed his statute of conviction, § 1594(c), as well as the underlying 
substantive statute he conspired to violate, § 1591, much like the presentence 
investigation report and judgment in this case.  Id.  The defendant appealed, 
arguing that the judgment must be amended to remove references to the 
underlying substantive offense because it suggested he was convicted of 
violating the substantive statute.  Id.  The Ninth Circuit rejected the 
defendant’s argument.  In so doing, it held that “[t]he inclusion of statutory 
references to both the conspiracy statute and the sections describing the 
object of the conspiracy does not transform the judgment into one that 
describes a conviction of the substantive crime.  The judgment, in sum, 
cannot properly be read to suggest that Defendant was convicted of more 
than one crime, nor can it properly be read to suggest that Defendant stands 
convicted of the crime that was the object of the conspiracy.”  Id. at 1081.  
 
32  R. Doc. 374 at 1. 
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The court further explained that “although the judgment is not required to 
pinpoint the statute defining the substantive offense that is the object of the 
conspiracy, neither is it error for the judgment to include such a reference.”  
Id.  Nor did the probation office or this Court err by referencing the statute 
that is the object of Phillips’s conspiracy in the presentence i nvestigation 
report or the judgment. 
In Warren, as here, the defendant asked the court to amend the record 
because the BOP erroneously concluded that the defendant was convicted 
under § 1591 and was thus ineligible for credits under the First Step Act.  Id. 
at 1089 n.2.  The Ninth Circuit held that the defendant had “the opportunity 
to present to the BOP this opinion, which construes the judgment to reflect 
that Defendant committed a single offense under 18 U.S.C. § 1594(c).”  Id.  
The same is true here.   
 
IV. CONCLUSION 
 
For the foregoing reasons, the Court DENIES defendant’s motion to 
correct a clerical error. 
 
New Orleans, Louisiana, this _____ day of December, 2022. 
 
 
_____________________ 
SARAH S. VANCE 
UNITED STATES DISTRICT JUDGE 
5th
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