United States v. Keller, Brian

In the

United States Court of Appeals

For the Seventh Circuit

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Nos. 03-3789 & 03-3752

UNITED STATES OF AMERICA,

Plaintiff-Appellee, Cross-Appellant,

v.

BRIAN KELLER,

Defendant-Appellant, Cross-Appellee.

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Appeals from the United States District Court for

the Northern District of Illinois, Eastern Division.

No. 02 CR 1086—James B. Moran, Judge.

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ARGUED MAY 24, 2004—DECIDED JULY 21, 2004

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Before RIPPLE, MANION and EVANS, Circuit Judges.

RIPPLE, Circuit Judge. Brian Keller was indicted on one

count of being a felon in possession of a weapon in violation

of 18 U.S.C. § 922(g). The district court denied Mr. Keller’s

motion to dismiss the indictment. After his conviction, Mr.

Keller was sentenced to seventy months’ imprisonment. Mr.

Keller now appeals the district court’s denial of his motion

to dismiss the indictment; the Government cross-appeals the

district court’s grant of a downward departure to Mr. Keller.

2 Nos. 03-3789 & 03-3752

For the reasons set forth in the following opinion, we affirm

Mr. Keller’s conviction, but vacate the district court’s sen-

tence and remand for resentencing.

I

BACKGROUND

A. Facts

On May 8, 2002, Mr. Keller was released from state prison

where he had been serving a sentence for aggravated battery

of a police officer. According to Mr. Keller, while imprisoned

on this charge, he had determined that, upon his release, he

was not going to engage in further criminal activity and,

more specifically, was going to leave his gang, the Black

Stones.

Mr. Keller’s resolution was more difficult to keep than he

anticipated. Shortly after his release from prison, Mr. Keller

suffered a gunshot wound to the face while in a local bar. In

his moving papers and statements to the district court, Mr.

Keller explained that this incident was related to his efforts

to leave his gang. However, at the time of the incident, Mr.

Keller did not provide the police with this background

information.

In the next month, Mr. Keller was the victim of a drive-by

shooting and also was the victim of an armed robbery.

Through the grapevine, Mr. Keller discovered that the in-

dividuals who had robbed him also were involved in the

shooting at the bar in May.

At some time between the robbery and July 4, 2002, Mr.

Keller obtained a firearm. The weapon had been manufac-

tured outside the state of Illinois and, apparently, had been

stolen from the Atlanta, Georgia police department. Mr.

Nos. 03-3789 & 03-3752 3

Keller was carrying this weapon on July 4, 2002, while

walking with his fiancée at Rainbow Beach in Chicago. In an

affidavit submitted to the district court, Mr. Keller recounts

that the following events took place that evening:

[A]t the time I was at the beach and the same boys were

trying to attack me when they seen me, but I had the

upper hand on them this time, but I was just trying to

keep them from harming me again & my family. So I

pulled out the gun when they approached me before

they could get close up on me again like they did when

they shot me in the face. And also when they robbed me

a week later.

R.28, Ex.D at 1. An off-duty police officer observed Mr.

Keller chasing another person with a handgun. The officer

also saw Mr. Keller give the gun to his fiancée, who placed

it inside her purse. In his post-arrest statement to the police,

Mr. Keller explained that he had the gun for protection.

Mr. Keller was charged and convicted in state court for

being a felon in possession of a weapon. He was sentenced

to three years’ imprisonment.

B. District Court Proceedings

After Mr. Keller’s state conviction, a federal grand jury

returned a one-count indictment against Mr. Keller for being

a felon in possession of a weapon in or affecting interstate

commerce in violation of 18 U.S.C. § 922(g). Mr. Keller

moved to dismiss the indictment on the ground that § 922(g)

was not a valid exercise of Congress’ Commerce Power. The

district court denied the motion to dismiss.

After a bench trial on stipulated facts, the district court

found Mr. Keller guilty on the charge of the indictment.

4 Nos. 03-3789 & 03-3752

Prior to sentencing, Mr. Keller moved for a downward de-

parture on the basis of duress pursuant to United States

Sentencing Guideline § 5K2.12. He argued that, given the

violence that he had encountered since his release from

prison, he needed to have some means of protecting himself

and his family.

The district court considered the evidence in support of

the departure; it stated:

I have read what people have submitted. It’s one of

these situations where maybe—well, where the 5K2.12

reason, it seems to me, justifies some modification but

not much, because it’s a very thin coercion—I mean,

obviously, the circumstances in which the defendant

found himself are certainly not circumstance [sic] that

are ones that most people are familiar with of just a

different milieu of violence.

R.34 at 2. Regarding the incident on July 4, 2002, the court

noted that “[w]e don’t really have a basis for reasonably

knowing that the person who was being chased was en-

gaged in any kind of wrongful conduct. He may be gang-

related, that could well be true, but as I said, there is noth-

ing to indicate even that he was even armed at the time.” Id.

at 3.

After hearing arguments, the court granted Mr. Keller a

two-level departure. In reaching its decision, the district

court stated it was influenced by the fact that Mr. Keller had

been the victim of multiple violent crimes after his release

from state prison. The court acknowledged that Mr. Keller’s

decision to arm himself was illegal; nevertheless, the court

believed that a minor departure was appropriate because

Nos. 03-3789 & 03-3752 5

Mr. Keller genuinely believed that he was at risk. Mr. Keller

1

then was sentenced to seventy months’ imprisonment.

Mr. Keller now appeals the district court’s denial of his

motion to dismiss the indictment. The Government cross-

appeals Mr. Keller’s sentence on the ground that the district

court misapplied U.S.S.G. § 5K2.12.

II

ANALYSIS

A. Commerce Clause Challenge

In his appeal, Mr. Keller maintains that the district court

erred when it denied his motion to dismiss the indictment.

In his view, recent holdings of the Supreme Court have

defined more narrowly the limits of Congressional authority

under the Commerce Power to punish criminal conduct that

is noncommercial and purely local in character. Mr. Keller

submits that his conduct on July 4, 2002, falls squarely into

this category.

We cannot accept Mr. Keller’s argument. On numerous

occasions, we not only have rejected Commerce Clause

2

challenges to 18 U.S.C. § 922(g), but also have rejected the

1

Mr. Keller’s federal sentence was to run concurrently with his

state sentence.

2

18 U.S.C. § 922(g) provides in relevant part:

(g) It shall be unlawful for any person—

(1) who has been convicted in any court of, a crime punish-

able by imprisonment for a term exceeding one year;

...

to ship or transport in interstate or foreign commerce, or

possess in or affecting commerce, any firearm or ammuni-

(continued...)

6 Nos. 03-3789 & 03-3752

specific argument presented by Mr. Keller—that the Supreme

Court’s recent decisions in United States v. Lopez, 514 U.S.

549 (1995) (striking down Gun-Free School Zones Act as an

invalid exercise of Congress’ commerce power), United States

v. Morrison, 529 U.S. 598 (2000) (holding unconstitutional

certain criminal provisions of the Violence Against Women

Act as an invalid exercise of Congress’ commerce power),

and Jones v. United States, 529 U.S. 848 (2000) (holding that

a private residence is not “used in” interstate commerce and

therefore concluding that federal arson statute does not

cover arson of a private residence), require us to reconsider

our prior decisions upholding the constitutionality of

§ 922(g) against Commerce Clause challenges. See, e.g.,

United States v. Fleischli, 305 F.3d 643, 653 (7th Cir. 2002);

United States v. Lemons, 302 F.3d 769, 771-73 (7th Cir. 2002);

United States v. Mitchell, 299 F.3d 632, 634-35 (7th Cir. 2002);

United States v. Wesela, 223 F.3d 656, 659-60 (7th Cir. 2000).

In short, we have recognized that the explicit jurisdictional

nexus contained in § 922(g)—“in or affecting com-

merce”—satisfies the Supreme Court’s requirement that

Congressional action have some connection to interstate

commerce. See Lemons, 302 F.3d at 771. Indeed, we have

determined that nothing in Lopez, Jones or Morrison “casts

doubt on the validity of § 922(g).” Wesela, 223 F.3d at 660.

Accordingly, we conclude that Mr. Keller’s Commerce

3

Clause challenge to § 922(g) is meritless.

2

(...continued)

tion; or to receive any firearm or ammunition which has been

shipped or transported in interstate or foreign commerce.

3

Mr. Keller also is troubled by the possible effect of subsequent

federal prosecutions following state-court convictions. According

(continued...)

Nos. 03-3789 & 03-3752 7

B. Downward Departure

In its cross-appeal, the Government contends that the

district court erred when it granted Mr. Keller a downward

departure pursuant to U.S.S.G. § 5K2.12. That provision

allows for such a departure “[i]f the defendant committed

the offense because of serious coercion, blackmail or duress,

under circumstances not amounting to a complete defense.”

The Government’s argument focuses on the elements of the

defense of duress: “(1) an immediate threat of death or

serious bodily injury, (2) a well-grounded fear that the

threat will be carried out, and (3) no reasonable opportunity

to avoid the threatened harm.” United States v. Toney, 27 F.3d

1245, 1248 (7th Cir. 1994). In the Government’s view, Mr.

Keller failed to establish that any of these elements were

present when he possessed the weapon on July 4, 2002.

Consequently, the Government maintains, the district court

erred when it granted the departure. We review de novo

whether the departure is “justified by the facts of the case.”

4

18 U.S.C. § 3742(e).

3

(...continued)

to Mr. Keller, the practice of “federally reprosecuting state cases”

will “alter[ ] and weaken[ ]” the basic system of plea negotiations

in Illinois courts, will clog state dockets and will force more cases

into federal court. See Defendant-Appellant’s Br. at 27-28.

However, “the Federal Government has the right to decide that

a state prosecution has not vindicated a violation of the ‘peace

and dignity’ of the Federal Government.” Heath v. Alabama, 474

U.S. 82, 93 (1985).

4

18 U.S.C. § 3742(e) provides in relevant part:

Upon review of the record, the court of appeals shall deter-

mine whether the sentence—

...

(continued...)

8 Nos. 03-3789 & 03-3752

At the time Mr. Keller was sentenced, § 5K2.12 provided:

If the defendant committed the offense because of seri-

ous coercion, blackmail or duress, under circumstances

not amounting to a complete defense, the court may

decrease the sentence below the applicable guideline

range. The extent of the decrease ordinarily should de-

pend on the reasonableness of the defendant’s actions

and on the extent to which the conduct would have been

less harmful under the circumstances as the defendant

believed them to be. Ordinarily coercion will be suf-

ficiently serious to warrant departure only when it in-

volves a threat of physical injury, substantial damage to

property or similar injury resulting from the unlawful

4

(...continued)

(3) is outside the applicable guideline range, and

...

(B) the sentence departs from the applicable guideline range

based on a factor that—

...

(iii) is not justified by the facts of the case . . . .

The section also provides that

[t]he court of appeals shall give due regard to the opportu-

nity of the district court to judge the credibility of the wit-

nesses, and shall accept the findings of fact of the district

court unless they are clearly erroneous and, except with re-

spect to determinations under subsection (3)(A) or (3)(B),

shall give due deference to the district court’s application of

the guidelines to the facts. With respect to determinations

under subsection (3)(A) or (3)(B), the court of appeals shall

review de novo the district court’s application of the guide-

lines to the facts.

18 U.S.C. § 3742(e).

Nos. 03-3789 & 03-3752 9

action of a third party or from a natural emergency. The

Commission considered the relevance of economic

hardship and determined that personal financial diffi-

culties and economic pressures upon a trade or business

do not warrant a decrease in sentence.

U.S.S.G. § 5K2.12 (2002).

We have not had an occasion to discuss at length the

parameters of § 5K2.12 with respect to § 922(g)(1) violations;

however, our colleagues on the Court of Appeals for the

Second Circuit have articulated some helpful guidance

regarding the application of § 5K2.12. In United States

v. Cotto, 347 F.3d 441 (2d Cir. 2003), the Second Circuit

observed:

“The court is not confined to the classical definition of

duress” when considering a departure under § 5K2.12.

United States v. Smith, 987 F.2d 888, 891 (2d Cir. 1993)

(quoting United States v. Johnson, 956 F.2d 894, 898 (9th

Cir. 1992)). “If section 5K2.12 is to be accorded meaning-

ful status, as the Sentencing Commission obviously

intended, we must read it as providing a broader stand-

ard of coercion as a sentencing factor than coercion as

required to prove a complete defense at trial.” United

States v. Cheape, 889 F.2d 477, 480 (3d Cir. 1989). Thus,

although the affirmative defense of duress requires

a well-founded fear of imminent bodily harm with no

opportunity to escape, United States v. Stevens, 985 F.2d

1175, 1181-82 (2d Cir. 1993), § 5K2.12 requires only a

more general “threat of physical injury” or “substantial

damage to property,” and thus reflects a broader con-

ception of coercion than does the affirmative defense.

Id. at 445-46. However, it also noted that “the same logic

that animates the defense also animates § 5K2.12. Both the

Guidelines and the defense require an objective showing

10 Nos. 03-3789 & 03-3752

that a reasonable person would have been coerced under the

particular circumstances of the defendant’s case.” Id. at 446

(internal quotation marks and citations omitted). Finally, the

court stated that “a defendant’s generalized fear of a third

party . . . rather than . . . any explicit or implicit threat, is

insufficient to constitute the unusual or exceptional circum-

stances warranting a departure under § 5K2.12.” Id. at 446-

47.

As suggested by the Second Circuit, we believe that, even

though the guideline provides considerably more leeway

than the affirmative defense, many of the same factors that

must be assessed in the case of the affirmative defense also

must be the principal points of inquiry when the court is

faced with the task of determining whether a downward

departure is warranted. Although broader in scope than the

defense of duress, § 5K2.12 is available only to those who

are operating under a current threat of violent and illegal

behavior and who reasonably believe that they have no

alternative but to arm themselves. The difference between

the evidence necessary to invoke the affirmative defense and

the evidence necessary to qualify for the downward depar-

ture is necessarily one of degree. Therefore, keeping in mind

the proper relationship between the defense and the guide-

line, we now examine our case law on the defense of duress

to identify the principal factors that ought to be considered

in determining whether a downward departure is appropri-

ate under the circumstances of this case.

We have rejected the notion that returning to a dangerous

neighborhood, without more, constitutes a justification for

a § 922(g) violation. In United States v. Perez, 86 F.3d 735 (7th

Cir. 1996), the defendant argued that the circumstances

surrounding his crime supported submitting the defense of

duress to the jury. In that case, the defendant believed that

unmarked police cars outside his apartment building were,

Nos. 03-3789 & 03-3752 11

in fact, individuals waiting for him to exit the building un-

armed. Consequently, when he left his apartment to deposit

$600 in cash at the bank, he felt compelled to arm himself

before going out on the street. This court found that these

facts were insufficient evidence of “necessity—or duress, or

self-defense” to be presented to the jury:

Even crediting fully Perez’s assertion that he genu-

inely believed the men in the cars would try to rob him

when he left the apartment, he has not come close to

satisfying the elements of the defense of necessity. If

ex-felons who feel endangered can carry guns, felon-

in-possession laws will be dead letters. Upon release

from prison most felons return to their accustomed

haunts. Even those who go straight will in all likelihood

continue to live in dangerous neighborhoods and

consort with some dangerous people. Many of them will

not go straight, but will return to dangerous activities

such as the drug trade. Every drug dealer has a well-

grounded fear of being robbed or assaulted, so that if

Perez’s defense were accepted felon-in-possession laws

would as a practical matter not apply to drug dealers.

Cf. United States v. Gresso, 24 F.3d 879, 881-82 (7th Cir.

1994); United States v. Gometz, 879 F.2d 256, 259-60 (7th

Cir. 1989).

The defense of necessity will rarely lie in a felon-in-

possession case unless the ex-felon, not being engaged

in criminal activity, does nothing more than grab a gun

with which he or another is being threatened (the other

might be the possessor of the gun, threatening suicide).

Id. at 736-37.

As we noted in Perez, many convicted felons unfortunately

will return to a milieu of violence after serving their sen-

tences, and many—even those who desire to distance

12 Nos. 03-3789 & 03-3752

themselves from criminal activity—will become the victims

of violence. However, if § 5K2.12 were to operate as an

automatic sentence reduction for convicted felons who find

themselves in dangerous surroundings, invocation of the

guideline would render nugatory much of the Congressional

determination that felons ought not be permitted to carry

firearms.

Although there is no question that Mr. Keller met with

violence after his release from prison, there also is no evi-

dence in the record that Mr. Keller believed that he likely

would meet with danger on the evening of July 4, 2002.

Similarly, absent from the record is any evidence that the

individuals whom Mr. Keller chased with the weapon were

engaging in (or threatening) criminal activity. See R.34 at 3.

Finally, the record does not suggest that Mr. Keller had no

alternative except to arm himself: There is no evidence that

Mr. Keller sought police protection, that such protection

was denied or that it proved ineffective. Nor is there evi-

dence that Mr. Keller considered relocating to an area where

he would be in less danger.

At this juncture, we cannot, and need not, delineate the

precise factual circumstances that might warrant a § 5K2.12

departure in the context of a § 922(g)(1) violation. We think

it clear, however, that such a departure was not appropriate

here. Mr. Keller’s fear of gang-related violence, in the

absence of a more specific threat, of a more immediate harm

or of evidence that Mr. Keller considered alternatives to

arming himself, simply does not warrant a § 5K2.12 depar-

ture.

Conclusion

For the reasons set forth above, we affirm Mr. Keller’s

conviction, but we reverse the district court’s grant of a

Nos. 03-3789 & 03-3752 13

downward departure pursuant to U.S.S.G. § 5K2.12. We

therefore vacate Mr. Keller’s sentence and remand for re-

sentencing consistent with this opinion.

AFFIRMED in part; VACATED and REMANDED in part

A true Copy:

Teste:

_____________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—7-21-04