United States v. Harvey, Raymond S.

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1308
UNITED STATES OF AMERICA
Plaintiff-Appellee,
v.
RAYMOND S. HARVEY,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 06 CR 159—J.P. Stadtmueller, Judge.
____________
ARGUED DECEMBER 12, 2007—DECIDED FEBRUARY 11, 2008
____________
Before BAUER, MANION, and ROVNER, Circuit Judges.
MANION, Circuit Judge. After pleading guilty to being
a felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1), Raymond Harvey was sentenced to 72 months’
imprisonment. He does not dispute that this is within the
applicable guidelines range of 70 to 87 months’ imprison-
ment. He argues, however, that the district court unrea-
sonably rejected his contention that he possessed the
weapon under duress and thus deserved a below-guide-
lines sentence under U.S.S.G. § 5K2.12. Also at issue is
whether Harvey’s timely notice of appeal, filed electroni-
cally, is sufficient even though the district court’s local
2 No. 07-1308
rule requires such notices to be filed on paper. We con-
clude that we have jurisdiction to hear the appeal because
Federal Rule of Civil Procedure 5(e) allowed the notice
of appeal to be filed despite the violation of the local rule.
We also affirm Harvey’s sentence because he did not
present enough evidence of duress to render a within-
guidelines sentence unreasonable.
I.
Two confidential informants told a Milwaukee police
officer that Raymond Harvey, a felon, routinely carried
a firearm and had been involved in a shootout on June 20,
2006. Based on these tips, an officer searched Harvey on
the morning of June 26, 2006, and found a gun in his
pocket. Harvey pleaded guilty to being a felon in posses-
sion of a firearm in violation of 18 U.S.C. § 922(g)(1).
The PSR assigned Harvey a total offense level of 21 and
a criminal history category of V. These calculations,
which Harvey does not dispute, yielded a guidelines
range of 70 to 87 months’ imprisonment. Based on his
extensive criminal history and inability to learn from his
mistakes, the probation officer recommended a sentence
of 84 months’ imprisonment, at the high end of the guide-
lines range.
Using pre-Booker language, Harvey moved for a down-
ward departure pursuant to U.S.S.G. § 5K2.12. See United
States v. Laufle, 433 F.3d 981, 986-87 (7th Cir. 2006). That
guideline permits a court to reduce the defendant’s sen-
tence if he commits a crime because of coercion, duress,
or blackmail under circumstances that do not qualify
as a complete defense. U.S.S.G. § 5K2.12. Harvey alleged
that he carried the gun because Vincent Edwards,
No. 07-1308 3
Harvey’s former partner in the drug trade, violently
threatened Harvey and his family and made at least one
attempt to kill Harvey. Harvey detailed the violence and
the threats: (1) between November 2005 and early 2006,
unknown actors twice discharged rounds of bullets into
his house; (2) Edwards shot at him and firebombed
his brother’s store; and (3) in the course of cooperating
with Edwards’s parole officer, Harvey heard recordings
in which Edwards requested that an associate threaten
Harvey, his sister, and her daughter. As a result, Harvey
slept on the floor of his home, at times in hotels, and
moved from his house. The violence resumed on June 20,
2006, when Harvey alleged that unknown gunmen fired
shots at him while he was at his brother’s store. Harvey
did not contact the police after the latest incident be-
cause, he asserted, he did not know who was responsible.
Instead he obtained the firearm at issue.
The district court declined to sentence Harvey below
the applicable guidelines range. It reasoned that Harvey
had better options than “taking the law into his . . . own
hands,” including reporting the June shooting incident
to the police or “totally relocating” to another area. The
court then discussed the community’s desire to address
the dangers associated with felons possessing guns, the
facts articulated in the PSR, and Harvey’s apparent inabil-
ity to learn from past mistakes, as well as the circumstances
under which Harvey carried the gun. The court cited
several factors listed in 18 U.S.C. § 3553(a), including the
need to protect the public and adequately deter Harvey
from further criminality. It ultimately sentenced him to
72 months’ imprisonment, at the low end of the guide-
lines range.
Harvey’s attorney filed a timely electronic notice of appeal
that contained the parties’ names, the judgment being
4 No. 07-1308
appealed, and the court to which Harvey appealed.
According to the local rules of the Eastern District of
Wisconsin, however, the notice of appeal must be filed
“conventionally on paper.” E.D. Wis., Electronic Case
Filing Policies and Procedures Manual, Criminal Part III(C)
(2006). The next day the clerk’s office sent counsel an e-
mail informing him that he should file a paper copy of
the notice of appeal, but Harvey did not submit a
paper copy until almost two months later, well after
the deadline set by Federal Rule of Appellate Procedure 4
for filing the notice of appeal in a criminal case.
II.
We must first consider whether we have jurisdiction to
hear this appeal even though Harvey’s counsel did not file
a paper notice of appeal until nearly two months after
the deadline. Fed. R. App. P. 4(b)(1). For purposes of
Rule 4, we accept any timely filed document that iden-
tifies the parties, the judgment being appealed, and the
court to which the party appeals. Fed. R. App. P. 3; Remer
v. Burlington Area Sch. Dist., 205 F.3d 990, 995 (7th Cir.
2000). Harvey’s counsel tendered to the clerk’s office a
timely electronic notice of appeal that satisfied these
requirements. But he violated a local rule by failing to
file the notice “conventionally on paper.” E.D. Wis.,
Electronic Case Filing Policies and Procedures Manual,
Criminal Part III(C).
Federal Rule of Civil Procedure 5(e) ensures that any
document presented to the clerk in violation of a local
rule of form can nonetheless be filed for purposes of
satisfying a filing deadline. Fed. R. Civ. P. 5(e) & 1991
advisory committee’s note; Farzana v. Ind. Dep’t of Educ.,
No. 07-1308 5
473 F.3d 703, 707-08 (7th Cir. 2007); Jones v. Bertrand, 171
F.3d 499, 503 (7th Cir. 1999). We recently held that Rule
5(e)’s protection regarding errors of form “covers all
matters regulated by the rules of procedure.” Farzana, 473
F.3d at 707. Thus, in Farzana, we held that a complaint
was timely filed even though the district court’s elec-
tronic filing system rejected it due to an error in the
docket number. Id. at 706-08. Farzana further held that
Rule 5(e) was specifically intended to prevent clerks
(and electronic filing systems) from rejecting com-
plaints and notices of appeal and thus causing litigants
to miss deadlines for filing such documents. Id. at 707.
This case fits squarely within Farzana. Harvey ten-
dered the notice of appeal to the clerk within the period
specified by Rule 4. Although his submission did not
conform to local rules, the difference between a hard
copy and an electronic submission is a mere error of
form. We hold that Harvey timely filed his notice of ap-
peal when he submitted it electronically to the clerk’s
office. See also Fed. R. Civ. P. 83(a)(2) (explaining that a
court should not deprive a party of a right because of a
non-willful failure to comply with a rule of form required
by a local rule).
III.
Turning to the merits of Harvey’s appeal, he argues
that the district court unreasonably rejected his conten-
tion that he carried the gun under duress and thus de-
served a below-guidelines sentence. We, as an appellate
court, presume that within-guidelines sentences are
reasonable, see, e.g., United States v. Nitch, 477 F.3d 933,
937 (7th Cir. 2007); United States v. Mykytiuk, 415 F.3d 606,
6 No. 07-1308
608 (7th Cir. 2005), and will only overturn a within-guide-
lines sentence if the defendant demonstrates that his
sentence is unreasonable in light of the § 3553(a) factors,
United States v. Sachsenmaier, 491 F.3d 680, 684-85 (7th
Cir. 2007).
Harvey contends that United States v. Keller, our only in-
depth examination of the application of § 5K2.12 to a
§ 922(g)(1) violation, supports his position that the dis-
trict court unreasonably declined to reduce his sentence
in light of his duress. See 376 F.3d 713 (7th Cir. 2004). He
argues that he satisfied the requirements of Keller be-
cause he feared a “very real and on-going threat” and
because he considered moving and cooperating with
law enforcement.
But Keller actually overturned a downward departure
under § 5K2.12 because the armed felon failed to demon-
strate that he reasonably believed he faced an imminent,
specific, and violent threat in response to which he had
no alternative but to arm himself. 376 F.3d at 719, 720;
see also United States v. Burks, 490 F.3d 563, 566 (7th Cir.
2007). Keller specifically mentioned three factors that
were important to the holding, and they provide the
basis for the elements a felon must fulfill in order to re-
ceive a reduction under § 5K2.12. 376 F.3d at 720. First,
if possible, the felon must try to remove himself com-
pletely from the danger. Second, if time permits, the
felon must attempt to alert the police. Finally the felon
must demonstrate a reasonable belief that a specific
threat was about to be carried out. Ultimately, only the
trier of fact can ascertain what narrow length of time
satisfies the final element.
We recognize that Keller does not provide a felon with
an easy response to an ongoing threat. We have also
No. 07-1308 7
mentioned that § 5K2.12 is significantly more forgiving
than the traditional defense of duress. Id. at 718-19. Never-
theless Keller emphasized that a felon’s generalized fear
must not nullify Congress’s determination that it is ex-
tremely dangerous for felons to arm themselves. See id. at
718-20. A felon who rejects avoiding or retreating from
a possible violent confrontation and arms himself in-
stead will certainly increase the likelihood of a gunfight
with his adversary. This is why convicted felons, who
often have a history of confrontational behavior, are
forbidden to posses firearms. A felon should be eligible
for leniency only if he carries the gun as a last resort.
In this case Harvey had alternatives to carrying the
gun, which he did not pursue. Harvey admitted that he
did not contact the police after the shooting incident on
June 20, 2006. In addition, although he asserts that he
changed addresses, there is no evidence that Harvey
considered moving to a new area in which the danger
would be significantly less severe. Finally, the threat
Harvey faced was not imminent. The most current shooting
incident occurred six days before he was arrested,
and Harvey never asserted that he was aware of any
specific danger at the time he possessed the gun. See Burks,
490 F.3d at 566 (holding that a defendant who carried a
firearm five months after his mother was murdered and
two months after the defendant was shot and received
death threats did not have a reasonable belief of a cur-
rent or imminent threat). Because neither the facts of the
case nor Harvey’s reliance on Keller undermines the
reasonableness of the district court’s decision, we AFFIRM
Harvey’s sentence.
8 No. 07-1308
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-11-08