United States v. Penn

• Decision Date: 05 August 2020
• Docket Number: No. 19-10168,19-10168
• Citation: 969 F.3d 450
• Parties: UNITED STATES of America, Plaintiff — Appellee, v. Alvin Christopher PENN, Defendant — Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

969 F.3d 450

UNITED STATES of America, Plaintiff — Appellee,

v.Alvin Christopher PENN, Defendant — Appellant.

No. 19-10168

United States Court of Appeals, Fifth Circuit.

FILED August 5, 2020

Brian W. Portugal, Leigha Amy Simonton, Assistant U.S. Attorneys, U.S. Attorney's Office, Northern District of Texas, Dallas, TX, for Plaintiff-Appellee.

James Matthew Wright, Assistant Federal Public Defender, Federal Public Defender's Office, Northern District of Texas, Amarillo, TX, for Defendant-Appellant.

Clark McAdams Neily, III, Jay Remington Schweikert, Washington, DC, for Amicus Curiae Cato Institute.

Before Stewart, Clement, and Costa, Circuit Judges.

Edith Brown Clement, Circuit Judge:

Alvin Penn engaged in a shootout with a rival and then fled, crashing his car and tossing the gun a few minutes later. A jury convicted Penn of being a felon in possession of a firearm. At sentencing, the district court ordered Penn to pay restitution for property damaged during the melee. Penn argues that his brief possession of the gun was justified and the district court erred by not letting him present that defense to the jury. He also challenges the district court's authority to order him to pay restitution for losses that weren't caused by his possession of the gun. We reverse the district court's restitution order but otherwise affirm Penn's conviction and sentence.

I.

On the morning of July 6, 2017, Alvin Penn was serving out the remainder of a federal sentence at a halfway house. He left and was supposed to be on his way to work, but he went to his girlfriend's house instead. After spending the morning with his girlfriend, Penn asked her to drop him off at his family's apartment because his aunt, Carmela Harris, was cooking lunch for him. When Penn arrived at the entrance of the apartment complex, he saw Devante Scott and one of Scott's associates, Kareem Robinson, standing by a car in the parking lot yelling at someone.

Scott had a history with Penn's family. He fathered two children with one of Penn's cousins, Keuna Hancock, who lived at the apartment. Another one of Penn's cousins, Demodrick Anderson, allegedly witnessed Scott murder a man. Anderson told his family about what he witnessed and began to distance himself from Scott, which is when the tension between Scott and Penn's family began. Anderson was murdered a few months later, and Penn's family believed that Scott was involved. Scott also allegedly threatened to kill Penn. So Scott was not welcome at the apartment.

Penn's girlfriend stopped the car about twenty yards away from Scott and Robinson, and Penn got out to see what they were doing there. Penn's aunt screamed, "They got a gun." Scott then pulled a gun from his pocket. Penn told Scott to put the gun down and fight, so Scott put the gun on the roof of his car. While Penn and Scott argued, Robinson picked up Scott's gun, crouched behind the car, and said "I got him." Fearing for Penn's safety, Penn's aunt rushed over to him and handed him her gun. Penn's girlfriend ran for cover at that point. Moments later, Penn opened fire.

A shootout ensued. After Penn and Robinson exchanged fire, Penn got into the driver's seat of his girlfriend's car and fled. Scott and Robinson chased after him; Scott drove while Robinson continued to shoot at Penn from the passenger-side window. As Penn exited the parking lot, he turned right onto a highway. Scott and Robinson followed. After making another turn, Penn drove through a residential neighborhood and "ended up losing" Scott and Robinson there. Once Scott and Robinson were no longer behind him, Penn returned to the highway and stopped at an intersection.

While Penn was waiting at the light, Oscar Garcia, an officer responding to the scene of the gunfight, noticed that Penn's car matched the description of one of the suspect vehicles. Garcia began following Penn. Although Garcia didn't have his lights or sirens on, Penn looked in his rearview mirror and realized that a police officer was behind him. Garcia continued to follow directly behind Penn as he cut across a parking lot to another street. Penn admitted that he could have pulled over to talk to Garcia, but he didn't pull over because he was a convicted felon with a gun in the car. Last time Penn was arrested, he was allegedly beaten by officers. Penn "didn't want to go back" to jail, "get caught with that gun," or "get beat[en] again," so he decided to try to evade Garcia.

Penn took a sharp left turn in front of cars, and when he saw that Garcia had gotten caught in traffic, he sped up and turned into a neighborhood. Garcia activated his lights and gave chase. Penn began to lose control of his vehicle while running stop signs and accelerating rapidly through the neighborhood. He eventually hit a curb, ran through a wrought-iron fence, and crashed into an apartment building. Penn then jumped out of the car and grabbed the gun. After unsuccessfully trying to scale a fence behind the apartment building, Penn tossed the gun over the fence into a field and took off running. The entire chase—from the time Penn first saw Garcia until he wrecked his car and ditched the gun—lasted around five minutes.

Garcia never caught Penn. When he arrived about a minute later, Penn was gone. Penn remained on the run until his arrest nearly a month later.

Penn was charged with two federal crimes: escape from federal custody in violation of 18 U.S.C. §§ 751(a) and 4082(a), and possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Penn moved to dismiss the felon-in-possession charge on the basis that § 922(g) is unconstitutional, but the district court denied Penn's motion. Aside from that, Penn didn't seriously contest the elements of his offenses. Instead, he went to trial primarily to raise an affirmative defense: he argued that he was justified in briefly possessing the gun to defend himself against Scott and Robinson. But the district court didn't allow Penn to present that defense because Penn held on to the gun longer than necessary.

The jury found Penn guilty on both counts. The district court sentenced him to 168 months’ imprisonment, followed by three years of supervised release. The district court also ordered Penn to pay restitution to two victims: first, the owner of a car that was struck by a bullet during the shootout between Penn and Robinson; and second, the owner of the apartment building and wrought-iron fence that Penn crashed into during the police chase. Penn timely appealed.¹

II.

Penn raises four issues on appeal: first , that the district court erred by refusing to instruct the jury on his justification defense; second , that the district court erred by excluding evidence related to that defense; third , that the order of restitution for losses not caused by his possession of the firearm was illegal; and fourth , that his conviction must be vacated because the interstate-commerce element of § 922(g) is unconstitutional. We address each issue in turn.

A.

First, Penn challenges the district court's refusal to submit a jury instruction on the justification defense. We review de novo a district court's refusal to provide an instruction on a defense that, if believed, would preclude a guilty verdict. United States v. Theagene , 565 F.3d 911, 917 (5th Cir. 2009). A criminal defendant is entitled to an instruction on a defense only if he presents sufficient evidence "for a reasonable jury to find in his favor." Mathews v. United States , 485 U.S. 58, 63, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988). The defendant must produce evidence to sustain a finding on each element of the defense "before it may be presented to the jury." United States v. Posada-Rios , 158 F.3d 832, 873 (5th Cir. 1998). In determining whether the defendant has made this threshold showing, "we construe the evidence and make inferences in the light most favorable to the defendant." Theagene , 565 F.3d at 918.

We have recognized "justification" as a defense to a felon-in-possession charge. See United States v. Harper , 802 F.2d 115, 117 (5th Cir. 1986).² To establish that defense, a defendant must show that (1) he was under an imminent threat of death or serious injury; (2) he did not "recklessly or negligently" place himself in a situation where he would be forced to possess a firearm; (3) he had no "reasonable, legal alternative" to possessing the firearm; and (4) "a direct causal relationship" could be anticipated between possession of the firearm and abatement of the threat. Id. (quoting United States v. Gant , 691 F.2d 1159, 1162–63 (5th Cir. 1982) ). The defendant must also prove a fifth element: that he possessed the firearm only during the time of danger. See Gant , 691 F.2d at 1163 n.9.

In the felon-in-possession context, courts construe the justification defense "very narrowly" and limit its application to the "rarest of occasions." E.g. , United States v. Perrin , 45 F.3d 869, 874–75 (4th Cir. 1995). The defense is often unavailable unless the defendant did nothing more than disarm someone "in the heat of a dangerous moment," and possess a gun briefly "to prevent injury to himself or to another." United States v. Mahalick , 498 F.3d 475, 479 (7th Cir. 2007) (citation omitted).

We have found sufficient evidence for an instruction on the justification defense only once. In United States v. Panter , 688 F.2d 268 (5th Cir. 1982), Lester Panter was tending bar when he was assaulted by a drunk patron. Id. at 269. After threatening to kill Panter, the patron pulled a knife and stabbed him in the abdomen. Id. Panter reached beneath the bar for a club, but his hand fell fortuitously on a pistol. Id. He shot the patron and then immediately placed the gun on the bar. Id. We held that Panter could raise the defense because he presented evidence showing that he reacted out of a reasonable fear for his life, in a conflict that he didn't provoke, and possessed the gun only for the short time necessary to defend himself. Id. at 270–72.

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