United States v. Joseph Kelly ( 2017 )

Case: 16-60852 Document: 00514085272 Page: 1 Date Filed: 07/24/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-60852 FILED
Summary Calendar July 24, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOSEPH TERRELL KELLY,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:02-CR-146-2
Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Defendant-Appellant Joseph Terrell Kelly appeals the revocation of his
supervised release. He contends that the district court erred in finding that he
violated the conditions of his supervised release by committing the new
criminal offense of being a felon in possession of a firearm. Kelly concedes that
he was a convicted felon and was arrested in possession of a gun but asserts
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 16-60852 Document: 00514085272 Page: 2 Date Filed: 07/24/2017
No. 16-60852
that he was legally justified in possessing the gun because he took it to protect
himself from an imminent threat of danger.
Viewing the evidence in the light most favorable to the government, a
reasonable trier of fact could have concluded that Kelly committed the offense
of being a felon in possession of a firearm and was not entitled to the defense
of justification. See United States v. Alaniz-Alaniz, 38 F.3d 788, 792 (5th Cir.
1994). The evidence does not support the conclusion that Kelly had the gun in
response to an imminent threat of harm or that, in reacting to a reasonable
and immediate fear for his life and safety, he temporarily possessed the gun in
the course of defending himself. See United States v. Gant, 691 F.2d 1159, 1162
(5th Cir. 1982); United States v. Panter, 688 F.2d 268, 272 (5th Cir. 1982).
Neither does the record support a conclusion that there was a continuing
threat to Kelly’s – or any other person’s – life or safety when he was found with
the gun approximately four hours after he first took possession of it. Kelly may
not assert the defense of justification when, as here, there was not a real
emergency that left no time to seek a reasonable, legal alternative, and when
he had the firearm for a significant period after the purported time of
endangerment. See Gant, 691 F.2d at 1163-64; Panter, 688 F.2d at 272.
In sum, there was sufficient evidence to support the conclusion that
Kelly violated the conditions of his supervised release and that revocation was
merited. See 18 U.S.C. § 3583(e)(3); United States v. Jang, 574 F.3d 263, 265-
67 (5th Cir. 2009). The district court’s judgment is AFFIRMED.
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