United States v. Perry
| Decision Date | 02 July 2021 |
| Docket Number | No. 20-1819,20-1819 |
| Citation | 2 F.4th 1146 |
| Parties | UNITED STATES of America, Plaintiff - Appellee v. Lashaun Maurice PERRY, also known as Bishop, Defendant - Appellant |
| Court | U.S. Court of Appeals — Eighth Circuit |
Dan Chatham, Martin Joseph McLaughlin, Assistant U.S. Attorneys, U.S. ATTORNEY'S OFFICE, Northern District of Iowa, Cedar Rapids, IA, for Plaintiff - Appellee.
John D. Jacobsen, JACOBSEN & JOHNSON, Cedar Rapids, for Defendant - Appellant.
Lashaun Maurice Perry, Pro Se.
Before GRUENDER, BENTON, and GRASZ, Circuit Judges.
Lashaun Maurice Perry challenges the district court's1 imposition of a 24-month sentence after the court revoked his second supervised release term. We affirm.
In 2012, Perry pled guilty to unlawfully possessing a firearm as a felon, see 18 U.S.C. §§ 922(g) and 924(a)(2), and was sentenced to 78 months of imprisonment followed by three years of supervised release. Upon release in 2018, he promptly violated his supervised release conditions by using alcohol, refusing to participate in substance abuse testing, and operating a motor vehicle while intoxicated. The district court sentenced Perry to 12 months of imprisonment followed by two years of supervised release.
Following his second release in August 2019, Perry again violated his supervised release conditions by failing to participate in substance abuse testing. Then, in February 2020, Perry was involved in a fight outside a strip club. Perry was later questioned by an officer and denied being involved in the fight. Perry's probation officer filed a petition to revoke Perry's supervised release, alleging four violations: (1) failing to participate in substance abuse testing; (2) communicating with felons or persons engaged in criminal activity; (3) failing to truthfully answer inquiries; and (4) committing new legal violations of willful injury to another. Perry admitted the first violation but denied the other three.
The district court held an evidentiary hearing and reviewed three videos, medical records, and testimony from two United States Probation Officers before making its factual findings as to the alleged assault. The district court found that on the night of the assault, Perry was at a strip club in Cedar Rapids, Iowa with Montrivel Woods, Maurice Bivens, and Brian Turner—all convicted felons. While in the club's parking lot near a food truck, Perry and his friends got into a ruckus with Michael Akers and two other males ("UM1" and "UM2"). After a security guard told the two groups to leave, they did so in their respective vehicles.
Akers's group then drove into a truck rental parking lot. After Akers got out of the car, he approached a barbeque grill, removed the propane tank, and put it in the roadway where the car with Woods, Perry, Bivens, and Turner would travel. There is no evidence that Woods's car hit the tank on its way past. As Akers retreated to his car, Perry and the three men got out of their car and ran toward Akers and UM1. A physical altercation occurred between Bivens and Akers. Then, Bivens, Woods, Turner, and Perry physically assaulted Akers and UM1. The video shows Perry stomp on UM1 and punch Akers, knocking him unconscious.
The district court rejected Perry's self-defense argument and concluded that the government established Perry committed all alleged violations. The district court imposed the statutory maximum of 24 months of imprisonment with no additional supervised release.
On appeal, Perry first contends that the district court erred in determining that he committed a new state crime because he had acted in self-defense. Perry also argues that his sentence was substantively unreasonable. Neither argument prevails.
"The district court has the discretion to revoke supervised release if the government proves by a preponderance of the evidence that the defendant violated a condition of supervised release." United States v. Boyd , 792 F.3d 916, 919 (8th Cir. 2015) (citing 18 U.S.C. § 3583(e)(3) ). We review the district court's revocation of supervised release for abuse of discretion, and we review its fact findings on the underlying violations for clear error. United States v. Brown , 947 F.3d 503, 505 (8th Cir. 2020). We will reverse a revocation decision only if we have "a definite and firm conviction that the [d]istrict [c]ourt was mistaken." United States v. Petersen , 848 F.3d 1153, 1156 (8th Cir. 2017) (quoting Boyd , 792 F.3d at 919 ). "Our review, then, is not to determine what conclusion we might reach in the case were we to sit as the finders of fact, but to determine whether the district court's factual findings amount to clear error." United States v. Cates , 613 F.3d 856, 858 (8th Cir. 2010) (quoting United States v. Jones , 539 F.3d 895, 897 (8th Cir. 2008) ).
Perry challenges the district court's rejection of his self-defense argument and the district court's findings of new legal violations. For self-defense to apply, Perry must show that he was "justified in the use of reasonable force when [he] reasonably believe[d] that such force [was] necessary to defend [him]self or another from any actual or imminent use of unlawful force." Iowa Code § 704.3. Reasonable force is defined as "that force and no more which a reasonable person, in like circumstances would judge to be necessary to prevent an injury or loss[.]" Iowa Code § 704.1.
Perry asserts that the initial altercation at the strip club involved an assault by Akers in which Akers struck Perry in and around his head. Perry maintains that he was "attempting to escape the assaultive, disruptive, and violent actions" when Akers placed the tank in the street, which justifies his assault on Akers. The district court concluded that even assuming Akers threw, rolled, or placed the propane tank in the street, it did not constitute an actual or imminent threat of unlawful force at the time of the assault. See Iowa Code § 704.3. We agree with this assessment. We see no self-defense justification that warranted Perry leaving his vehicle to attack Akers and UM1, particularly when Akers's action in relation to the propane tank had passed before the assault in the parking lot.
Moreover, the alleged assault on Perry by Akers at the strip club was both temporally and spatially distinct from the assault that Perry committed against Akers in the truck rental parking lot. The district court found that after Akers attempted to return to his car, Perry and his group ran after him to reinitiate the physical altercation. So, the punch was retaliatory in nature and not necessary to defend from an ongoing threat. See State v. Delay , 320 N.W.2d 831, 835 (Iowa 1982) (). Here, the government met its burden "by proving ... [t]he defendant initiated or continued the incident resulting in injury." State v. Richards , 879 N.W.2d 140, 148 (Iowa 2016) (quoting State v. Rubino , 602 N.W.2d 558, 565 (Iowa 1999) ). Therefore, the district court did not clearly err in determining that the facts did not justify self-defense.
We next consider Perry's challenge to the substantive reasonableness of his sentence. "We review the substantive reasonableness of a sentence imposed after a revocation of supervised release for abuse of discretion." United States v. Longs , 806 F.3d 1001, 1001 (8th Cir. ...
To continue reading
Request your trial