United States v. Mercer , 362 F. App'x 929 ( 2010 )


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  •                                                                        FILED
    United States Court of Appeals
    Tenth Circuit
    January 26, 2010
    UNITED STATES COURT OF APPEALS
    Elisabeth A. Shumaker
    Clerk of Court
    TENTH CIRCUIT
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.                                                     No. 09-2078
    KELLY GRANT MERCER,                          (D.C. No. 07-CR-01173-JEC-1)
    (D.N.M.)
    Defendant-Appellant.
    ORDER AND JUDGMENT *
    Before BRISCOE, BALDOCK, and HARTZ, Circuit Judges.
    A petit jury convicted Defendant Kelly Grant Mercer of being a felon in
    possession of a firearm in violation of 
    18 U.S.C. § 922
    (g)(1). The district court
    sentenced him to 180 months’ imprisonment. On appeal, Defendant asserts the
    district court erred in refusing to instruct the jury on his justification defense.
    According to Defendant, the circumstances surrounding a threat against his life
    excused his possession of the firearm. Viewing the evidence presented in the light
    most favorable to Defendant, we hold such evidence was not sufficient to support a
    jury instruction on the justification defense, and summarily affirm.
    *
    This order and judgment is not binding precedent except under the doctrines
    of law of the case, res judicata, and collateral estoppel. It may be cited, however,
    for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
    The parties are familiar with the historical facts over which no material dispute
    exists, and we need not repeat them here. Those facts are ably set forth in the
    district court’s order explaining its rationale for denying Defendant’s proposed
    justification defense instruction. See United States v. Mercer, No. 07-CR-1173,
    Memorandum Opinion & Order (D.N.M. Nov. 4, 2008) (Docket # 93) (hereinafter
    “Court’s Op.”). 1 We do not question the proposition that the circumstances under
    which Defendant possessed a firearm caused him to fear for his safety. We accept
    the fact that Archuleta, the leader of a prison gang, may have wanted to harm him.
    But such fear alone is simply not sufficient to justify Defendant’s illicit conduct.
    Otherwise, scores of felons, legitimately concerned for their safety, could and would
    possess firearms–a wholly undesirable state of affairs that would severely impede
    § 922(g)(1)’s principal aim, i.e., to prevent gun violence by those whose past
    misdeeds suggest they are more likely to commit criminal acts.            To warrant
    instructing the jury on a justification defense, Defendant’s burden was not so light
    as he suggests. Defendant had to present evidence whereby a reasonable jury could
    find four elements by a preponderance of the evidence. See United States v. Nevels,
    
    490 F.3d 800
    , 805 n.3 (10th Cir. 2007). The trial record reveals that Defendant
    utterly failed to establish at least two of these elements, namely that he (1) “was
    1
    The district court’s order sets forth the chronology of events in which it
    refers to, among other dates, “March 23, 2008” and “March 27, 2008.” Court’s Op.
    at 3. Our review of the record indicates those dates should read “March 23, 2007”
    and “March 27, 2007.”
    2
    under an unlawful and present, imminent and impending threat of such nature as to
    induce a well-grounded apprehension of death or serious bodily injury;” and (2) “had
    no reasonable, legal alternative to violating the law, a chance both to refuse to do the
    criminal act and also to avoid the threatened harm.” United States v. Butler, 
    485 F.3d 569
    , 572 (10th Cir. 2007) (internal brackets, quotations, and citation omitted).
    The district court justifiably found that the threat to Defendant “was not
    immediate, making it feasible for Mercer to have considered all of his options and
    pursued a lawful one,” such as seeking advice and protection from law enforcement
    officials. Court’s Op. at 8 (emphasis in original). Defendant admitted the same. At
    trial, the prosecutor asked him: “So there are several things that you could have
    done, other alternatives that you could have done, other than arming yourself with
    a firearm?” Defendant replied: “Yes, there were.” Rec. Vol 3, at 158. Moreover,
    Defendant acknowledged he “was not aware” of “any present, imminent danger”
    when he procured the unloaded firearm from his brother’s apartment. Rec. Vol. 3,
    at 150-51. 2   The record simply belies the presence of an imminent threat to
    Defendant so close in physical and temporal proximity as to justify his possession
    of a firearm. See United States v. Dutton, 
    2009 WL 3437835
    , at *3 (10th Cir. 2009)
    (unpublished). Absent “extraordinary circumstances” most assuredly not present
    2
    Black’s Law Dictionary 421 (8th ed. 2004) defines “imminent danger” as an
    “immediate, real threat to one’s safety” or the “danger resulting from an immediate
    threatened injury.”
    3
    here (whatever they might be), a justification defense instruction is warranted only
    where the “‘ex-felon, not being engaged in criminal activity, does nothing more than
    grab a gun with which he or another is [presently] being threatened.’” 
    Id. at *5
    (quoting United States v. Perez, 
    86 F.3d 735
    , 737 (7th Cir. 1996)). 3 According to the
    district court:
    The lack of immediacy is clear from Mercer’s testimony indicating that
    the unloaded gun was of no use to him without bullets, which he
    intended to get in some unspecified way, at some later time. Further,
    testimony established that Mercer left his girlfriend alone in the truck
    [in a public space outside his brother’s apartment] while he went inside
    to get the gun, leaving vulnerable the very person he claimed he wanted
    to protect.      Urgency, then, was not present.         Mercer readily
    acknowledges that he could have sought police protection but did not.
    . . . [E]mergency travel permits are available for probation supervisees,
    but Mercer did not request one. Mercer dismissed as futile the notion
    of going to the authorities for protection or seeking permission to travel
    to a safer place until Archuleta was apprehended. Yet the law requires
    a defendant asserting a justification defense to choose a lawful
    alternative where one exists.
    Court’s Op. at 8-9. The district court correctly decided that, upon the evidence
    presented, Defendant was not entitled to a justification defense instruction. When
    a district court accurately takes the measure of a case and articulates a cogent
    rationale, more often than not our writing at length serves no meaningful purpose.
    3
    For one court’s view of what constitutes extraordinary circumstances, see
    United States v. Gomez, 
    92 F.3d 770
     (9th Cir. 1996), where defendant “tried many
    other avenues first” before arming himself. 
    Id. at 777
    .
    4
    The judgment of the district court is
    AFFIRMED.
    Entered for the Court,
    Bobby R. Baldock
    United States Circuit Judge
    5
    

Document Info

Docket Number: 09-2078

Citation Numbers: 362 F. App'x 929

Judges: Briscoe, Baldock, Hartz

Filed Date: 1/26/2010

Precedential Status: Non-Precedential

Modified Date: 10/19/2024