USCA11 Case: 21-11141 Date Filed: 07/15/2022 Page: 1 of 8
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11141
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BILLY J. PELLETT, JR.,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 3:19-cr-00038-MCR-1
____________________
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2 Opinion of the Court 21-11141
Before GRANT, BRASHER, and ANDERSON, Circuit Judges.
PER CURIAM:
Billy Pellett, Jr. (“Pellett”) appeals his conviction for posses-
sion of a firearm and ammunition by a convicted felon in violation
of
18 U.S.C. § 922(g)(1). Pellett concedes that the Government es-
tablished the essential elements of the § 922(g)(1) offense, but he
argues that his actions were legally justified and that the evidence
offered at his bench trial was insufficient to support the district
court’s rejection of his justification defense and finding that he con-
structively possessed the firearm and ammunition longer than nec-
essary to avoid imminent danger. Because we write only for the
parties, we will not set out the facts at length in a separate section
of this opinion.
We review de novo whether sufficient evidence supports a
criminal conviction following a non-jury trial, and we “resolve all
reasonable inferences in favor of the verdict.” United States v.
Brown,
415 F.3d 1257, 1270 (11th Cir. 2005). We view the evidence
in the light most favorable to the Government, and we must hold
that the evidence underlying a conviction is sufficient so long as
there is a reasonable basis for the verdict in the record.
Id. at 1270–
71. “It is not our function to make credibility choices or to pass
upon the weight of the evidence.”
Id. at 1270 (quoting United
States v. Turner,
812 F.2d 1552, 1563 (11th Cir. 1987)).
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21-11141 Opinion of the Court 3
“To establish a violation of § 922(g)(1), the government
must prove beyond a reasonable doubt three elements: (1) that the
defendant was a convicted felon, (2) that the defendant was in
knowing possession of a firearm, and (3) that the firearm was in or
affecting interstate commerce. United States v. Deleveaux,
205
F.3d 1292, 1296–97 (11th Cir. 2000). Possession of a firearm is a
continuing offense—i.e., the offense continues as long as the pos-
session continues. United States v. D’Angelo,
819 F.2d 1062, 1066
(11th Cir. 1987). Possession of a firearm may be either actual or
constructive and may be shown by both circumstantial and direct
evidence. United States v. Crawford,
906 F.2d 1531, 1535 (11th Cir.
1990). Actual possession exists when a defendant knowingly has
“direct physical control over” a firearm. Henderson v. United
States,
575 U.S. 622, 626,
135 S. Ct. 1780, 1784 (2015). Constructive
possession exists when a defendant “(1) was aware or knew of the
firearm’s presence and (2) had the ability and intent to later exercise
dominion and control over [the] firearm.” United States v. Perez,
661 F.3d 568, 576 (11th Cir. 2011); see also Henderson, 575 U.S. at
626,
135 S. Ct. at 1784 (“Constructive possession is established
when a person, though lacking such physical custody, still has the
power and intent to exercise control over the object.”).
Pellett conceded at trial that the Government had satisfied
the elements of the § 922(g)(1) charge against him. But he asserted
the affirmative defense of justification. The justification defense
may be available in § 922(g)(1) cases, but only in “extraordinary cir-
cumstances.” Deleveaux,
205 F.3d at 1297. To establish a
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4 Opinion of the Court 21-11141
justification defense, the defendant must prove by a preponderance
of the evidence the following four elements:
(1) that the defendant was under unlawful and pre-
sent, imminent, and impending threat of death or se-
rious bodily injury; (2) that the defendant did not neg-
ligently or recklessly place himself in a situation
where he would be forced to engage in criminal con-
duct; (3) that the defendant had no reasonable legal
alternative to violating the law; and (4) that there was
a direct causal relationship between the criminal ac-
tion and the avoidance of the threatened harm.
Id. at 1297; see also
id. at 1299 (stating that defendants must prove
the justification affirmative defense “by a preponderance of the ev-
idence”). “The first prong requires nothing less than an immediate
emergency.” United States v. Rice,
214 F.3d 1295, 1297 (11th Cir.
2000). In other words, “generalized danger” cannot satisfy the first
prong of the justification defense.
Id. at 1298. So, for a defendant
to avail himself of the defense, he must “rid himself of possession
of the firearm as promptly as reasonably possible.” United States
v. Vereen,
920 F.3d 1300, 1311 (11th Cir. 2019).
Here, the district court concluded that Pellett had shown
that his initial possession of the firearm and ammunition was le-
gally justified when he wrested control of the revolver away from
his brother. But it also concluded that the justification defense was
not available because Pellett did not end his possession of the re-
volver as quickly as he should have. Vereen, 920 F.3d at 1311. The
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21-11141 Opinion of the Court 5
court determined that Pellett’s possession of the revolver lasted
longer than the danger posed to him by his brother:
Pellett physically possessed the loaded revolver for
approximately five to seven minutes—from the mo-
ment he disarmed his brother at his home until the
moment he tossed the gun to the ground on Triumph
Street. Although no longer in actual possession of the
gun, at that point, Pellett’s possession became con-
structive, as . . . he was aware of and knew that he had
placed the revolver at his feet by the motorcycle, and
he had the ability and intent to later retrieve it,
whether to dispose of it or otherwise. If he truly in-
tended to permanently discard the revolver in that
moment . . . , he could have easily done so by throw-
ing it into the wooded overgrowth. He did not. In-
stead, Pellett constructively possessed the loaded re-
volver for several minutes, until law enforcement dis-
covered and seized it. By that time, the imminent
threat of death or serious bodily injury from his
brother had been over for nearly 10 minutes. Indeed,
[his brother] was nowhere to be seen and Pellett
acknowledged feeling he was “in a safe environment”
once he arrived at the Triumph Street location. Yet
he did not promptly dispose of the revolver. And, sig-
nificantly, when law enforcement arrived, Pellett did
not immediately turn over the revolver to them or
tell them about it. Instead, he concealed it and ini-
tially denied having even placed it on the ground.
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6 Opinion of the Court 21-11141
The district court then concluded that Pellett failed to avail himself
of two reasonable legal alternatives to continued possession of the
revolver: (1) permanently disposing of the revolver in the woods
by the street or (2) surrendering it to the police upon their arrival.
On appeal, Pellett argues that the evidence presented at trial
was insufficient to support his § 922(g)(1) conviction because the
district court erroneously rejected his justification defense. In par-
ticular, he argues that he did end his possession as quickly as rea-
sonably possible under the circumstances and that he was not in
constructive possession of the revolver after he threw the gun and
it landed underneath his motorcycle.
Here, the record reasonably supports the district court’s
finding that Pellett constructively possessed the firearm and am-
munition longer than necessary. Specifically, the record shows
that, after the threat had subsided—i.e., after Pellett had driven
away from his brother to “a safe environment,”—he opted to toss
the firearm underneath his motorcycle, rather than into some
wooded overgrowth nearby him where he could not retrieve it.
Moreover, when law enforcement arrived, Pellett did not tell the
officers about the firearm and try to turn it over to them; rather, he
concealed it, and after they discovered it, he initially denied having
placed it on the ground.
On appeal, Pellett argues that he attempted to throw the re-
volver away from him but could not do so because of an injury to
his hand. The district court “discredit[ed]” this argument, though,
because it was inconsistent with Pellett’s statements to one of the
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21-11141 Opinion of the Court 7
police officers at the scene which were recorded by the officer’s
dashboard camera. Based on these statements, the district court
found that Pellett “intentionally” threw the revolver under his mo-
torcycle and knew it was there. Pellett has not argued on appeal
that this factual finding by the court was clearly erroneous. More-
over, even if we disagreed with the district court’s finding, we do
not reweigh the evidence or independently assess the credibility of
defendant’s testimony. Brown,
415 F.3d at 1270. Accordingly, we
cannot conclude that the district court erred by determining that a
reasonable legal alternative existed because Pellett could have
more permanently disposed of the revolver by throwing it into the
woods on the side of the road, or he could have surrendered it to
law enforcement when they arrived.
Moreover, we cannot conclude that the district court erred
by determining that Pellett had constructive possession of the fire-
arm after he threw it under his motorcycle. On appeal, Pellett ar-
gues that “there was no evidence” to support the district court’s
conclusion that he was in constructive possession of the revolver
during the time after he threw the revolver and before the police
found it on the ground. We disagree. Viewing the evidence in the
light most favorable to the Government, Brown,
415 F.3d at 1270,
the district court did not err by concluding that Pellett was in con-
structive possession of the revolver while it was under his motor-
cycle. When the police arrived, Pellett did not notify the officers
of the revolver. Moreover, he knew the revolver was at his feet.
Based on these facts, the district court did not err by concluding
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8 Opinion of the Court 21-11141
that Pellett had constructive possession of the revolver. Perez,
661
F.3d at 576 (stating that constructive possession exists when a de-
fendant “(1) was aware or knew of the firearm’s presence and (2)
had the ability and intent to later exercise dominion and control
over [the] firearm”).
For the foregoing reasons, the judgment of the district court
is
AFFIRMED.
