U.S. v. Keller, 03-3789.

• Decision Date: 21 July 2004
• Docket Number: No. 03-3752.,No. 03-3789.,03-3789.,03-3752.
• Citation: 376 F.3d 713
• Parties: UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Brian KELLER, Defendant-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

376 F.3d 713

UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Brian KELLER, Defendant-Appellant, Cross-Appellee.

No. 03-3789.

No. 03-3752.

United States Court of Appeals, Seventh Circuit.

Argued May 24, 2004.

Decided July 21, 2004.

Appeal from the United States District Court for the Northern District of Illinois, James B. Moran, J Brian R. Havey (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

William H. Theis (argued), Terence F. MacCarthy, Daniel J. Hesler (argued), Office of the Federal Defender Program, Chicago, IL, for Defendant-Appellant.

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. For the reasons set forth in the following opinion, we affirm Mr. Keller's conviction, but vacate the district court's sentence 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 individuals 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 manufactured outside the state of Illinois and, apparently, had been stolen from the Atlanta, Georgia police department. Mr. Keller was carrying this weapon on July 4, 2002, while walking with his fiancee 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 fiancee, 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. Prior to sentencing, Mr. Keller moved for a downward departure 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 engaged in any kind of wrongful conduct. He may be gang-related, that could well be true, but as I said, there is nothing 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 Mr. Keller genuinely believed that he was at risk. Mr. Keller then was sentenced to seventy months' imprisonment.¹

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 challenges to 18 U.S.C. § 922(g),² but also have rejected the specific argument presented by Mr. Keller — that the Supreme Court's recent decisions in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) (striking down Gun-Free School Zones Act as an invalid exercise of Congress' commerce power), United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (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, 120 S.Ct. 1904, 146 L.Ed.2d 902 (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 commerce" — 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 Clause challenge to § 922(g) is meritless.³

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." 18 U.S.C. § 3742(e).⁴

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

If the defendant committed the offense because of serious 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 depend 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 sufficiently serious to warrant departure only when it...