United States v. Penn

United States Court of Appeals
for the Fifth Circuit

No. 19-10168

United States of America,

Plaintiff — Appellee,

versus

Alvin Christopher Penn,

Defendant — Appellant.

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:17-CR-506-1

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.
United States Court of Appeals
Fifth Circuit
FILED
August 5, 2020

Lyle W. Cayce
Clerk
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No. 19-10168
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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
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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 rear-
view 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.
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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.

1
On appeal, Penn challenges his conviction and sentence only for the felon-in-
possession charge; he does not challenge his escape conviction or sentence.
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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 (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)).

2
“The proper name of this defense has . . . not been established.” Harper, 802
F.2d at 117 n.1. Courts have referred to the defense using the terms “necessity,” “duress,”
and “self-defense” interchangeably and often lump those terms together under the general
rubric of “justification.” Id.; United States v. Leahy, 473 F.3d 401, 406 (1st Cir. 2007). For
simplicity, we refer to Penn’s defense as justification.
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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.
The few cases in which our sister circuits have held that a justification
instruction was required are similarly extraordinary. See, e.g., United States v.
Paolello, 951 F.2d 537, 539–43 (3rd Cir. 1991) (holding justification defense
available when defendant knocked a gun out of an attacker’s hand, ran away
with the gun, and then dropped it when police ordered him to stop); United
States v. Newcomb, 6 F.3d 1129, 1137–38 (6th Cir. 1993) (holding justification
defense available when defendant disarmed a dangerous individual in an
“emergency situation that unfolded rapidly” and possessed ammunition for
only “a few minutes” before police arrived).
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The district court held that the justification defense was unavailable
because Penn failed to present sufficient evidence that he possessed the gun
“no longer than absolutely necessary.” Penn argues that the district court’s
formulation of the fifth element was too strict. Under our precedent, Penn
says, he need only show that he didn’t possess the gun for “any significant
period” after the alleged necessity. Panter, 688 F.2d at 272.
Penn misreads our precedent. To be sure, possession “before the
danger or for any significant period after it remains a violation.” Id. But the
converse is not true. We’ve never held that the defense applies when a
defendant maintains possession for only a brief period after the danger.
Instead, we’ve emphasized that the defense protects a defendant “only for
possession during the time” that the emergency exists. Id. If the defendant
“kept the gun beyond [that] time,” the defense is unavailable. Id. at 270–72;
accord Gant, 691 F.2d at 1163 n.9.
3

A defendant must act promptly to rid himself of the firearm once the
circumstances giving rise to the justification subside. There is no bright-line
rule that the defendant must turn the gun over to the police. See Panter, 688
F.2d at 269. But when “a police officer happens to find the defendant
first, . . . the officer’s presence gives the defendant an immediate chance to
give up possession.” United States v. Moore, 733 F.3d 171, 174 (6th Cir. 2013).
A defendant can’t assert a justification defense if he “fails to take advantage

3
Many circuit courts require, like the district court required here, a showing that
the defendant did not maintain possession of the firearm “longer than absolutely
necessary.” See, e.g., United States v. White, 552 F.3d 240, 247 (2d Cir. 2009); Paolello, 951
F.2d at 542; United States v. Singleton, 902 F.2d 471, 473 (6th Cir. 1990). Other courts
require proof that the defendant “relinquish[ed] the gun at the ‘earliest possible
opportunity.’” United States v. Butler, 485 F.3d 569, 573 (10th Cir. 2007) (quoting United
States v. Bailey, 444 U.S. 394, 415 (1980)). We need not determine whether there is any
difference between these formulations and what our precedent requires. Regardless of how
we phrase it, Penn failed to make the minimum showing on the fifth element.
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of that chance.” Id.; see also Paolello, 951 F.2d at 542 (explaining that if the
defendant ran from the police, then he “had an opportunity to dispose of the
gun . . . earlier than he did”); United States v. Hammons, 566 F.2d 1301, 1302–
04 (5th Cir.) (holding that a defendant who retained possession of a gun for
only ten minutes couldn’t raise a justification defense because he made no
attempt to get rid of the gun until police arrived and “tried to conceal the
[gun] from the officers”), vacated on other grounds, 439 U.S. 810 (1978).
We have little difficulty holding that Penn’s effort to evade arrest and
hide the firearm from police negates any possible satisfaction of the fifth
element. Penn admitted that he fled because he didn’t want to go back to jail.
Garcia and Penn testified that no other cars were near them, so Scott and
Robinson were no longer chasing Penn. By the time Penn saw Garcia, then,
any imminent threat to Penn’s safety was gone.
4
Thus, Penn’s continued
possession of the gun was prompted not by reasonable fear for his life but by
a desire to avoid jail time.
It makes no difference if Penn kept the gun only five minutes longer
than necessary. That period might have been brief, but it wasn’t insignificant.
Penn passed up several chances to give up the gun. He chose not to pull over
and explain the situation to Garcia. He also chose not to leave the gun at the
scene of the wreck; he took it with him and threw it into a field where it would
be harder for police to find. “Far from evincing a ‘single-minded effort’ to
divest himself of the gun safely, return it to law enforcement officers, or even
to report to authorities the circumstances necessitating his possession of it,”

4
We reject Penn’s argument that his continued possession was justified by his fear
of police, based on the beating officers allegedly gave him years earlier. Even if Penn’s
generalized fear of police could satisfy the immediate-threat requirement, the question is
whether that threat justified Penn’s possession of the gun, not his failure to pull over. Penn
didn’t need a gun to flee from the police. So Penn cannot show that he could have avoided
the threatened harm only by possessing the firearm. See Gant, 691 F.2d at 1164.
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Penn’s testimony shows just the opposite: a surreptitious effort to conceal
his role in the shootout and unlawful firearm possession from the police.
Virgin Islands v. Lewis, 620 F.3d 359, 370 (3d Cir. 2010).
On these facts, no reasonable jury could find that Penn possessed the
firearm “only . . . during the time he [was] endangered.” Panter, 688 F.2d at
272. We therefore hold that Penn failed to present sufficient evidence on the
fifth element of his justification defense. For that reason, the district court
properly refused to instruct the jury on the defense.
B.
Second, Penn contends the district court erred by excluding evidence
of Scott’s prior violent acts and threats against Penn’s family. We review a
district court’s evidentiary rulings for abuse of discretion. United States v.
Daniels, 930 F.3d 393, 404 (5th Cir. 2019). Even if the district court abused
its discretion in excluding evidence, we will not vacate a conviction unless
the error was harmful, meaning it affected a “substantial right” of the
defendant. Id. The question “is whether the trier of fact would have found
the defendant guilty beyond a reasonable doubt with the additional evidence
inserted.” United States v. Willett, 751 F.3d 335, 343 (5th Cir. 2014) (quoting
United States v. Wen Chyu Liu, 716 F.3d 159, 169 (5th Cir. 2013)).
The evidence at issue pertains to Penn’s defense of justification.
Because Penn failed to make the threshold showing required to present that
defense, the evidence was irrelevant. See Bailey, 444 U.S. at 416 (holding that
if a defendant fails to support one element of a defense, “the trial court and
jury need not be burdened with testimony supporting other elements”);
United States v. Ragsdale, 426 F.3d 765, 778 (5th Cir. 2005) (concluding that
evidence offered to support an unavailable defense is irrelevant). Thus, the
district court did not abuse its discretion by excluding that evidence.
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Penn asserts that even if the justification defense was unavailable, the
district court should have allowed him to tell “his side of the story.” For
instance, the government asked Penn’s aunt if it was fair to say she didn’t
like Scott. Rather than object to that line of questioning, Penn’s counsel
sought permission to ask Penn’s aunt why she didn’t like him. The
government argued that the reason was “completely irrelevant.” The court
didn’t allow Penn’s counsel to ask that question, but the court warned the
government that it was coming “dangerously close to opening the door.”
Even if the district court abused its discretion by excluding evidence
about Scott, that error was harmless. The excluded evidence had no bearing
on any element of the charged offenses. Penn’s argument that this evidence
“would have informed the jury’s moral judgment,” suggests that the
evidence would only inspire jury nullification. “Evidence admitted solely to
encourage nullification is by definition irrelevant, and thus inadmissible,
regardless of what other evidence might be introduced at trial.” United States
v. Manzano, 945 F.3d 616, 630 (2d Cir. 2019).
C.
Third, Penn contends that the district court lacked authority to order
restitution for damages that occurred during the shootout and police chase
because those losses weren’t caused by his felon-in-possession conviction. A
district court can order restitution only “when authorized by statute.”
United States v. Espinoza, 677 F.3d 730, 732 (5th Cir. 2012) (quoting United
States v. Love, 431 F.3d 477, 479 (5th Cir. 2005)). Because a restitution order
that exceeds the court’s statutory authority is an illegal sentence, which
always constitutes plain error, we review de novo the legality of a restitution
order, regardless of whether the defendant raised this objection at
sentencing. United States v. Nolen, 472 F.3d 362, 382 & n.52 (5th Cir. 2006);
United States v. Bevon, 602 F. App’x 147, 151 (5th Cir. 2015) (unpublished).
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The district court’s judgment cited 18 U.S.C. § 3663 as the basis for
restitution. Under § 3663, “a defendant convicted of an offense” may be
ordered to “make restitution to any victim of such offense.” Id.
§ 3663(a)(1)(A). Because that language links restitution to the offense of
conviction, the Supreme Court held that the statute authorizes an award of
restitution “only for the loss caused by the specific conduct that is the basis
of the offense of conviction.” Hughey v. United States, 495 U.S. 411, 413
(1990). This is known as the Hughey rule.
Penn argues that § 3663 did not authorize the district court’s
restitution order because the victims’ losses were not caused by the conduct
underlying his felon-in-possession conviction.
5
We agree.
The district court ordered restitution for losses suffered when
someone—it could have been Penn or Robinson—fired a bullet that struck a
car during the shootout and when Penn crashed into a fence during the high-
speed chase. The specific conduct underlying the elements of the felon-in-
possession offense does not include use of a firearm or flight from police. As
a result, neither the owner of the car nor the owner of the fence is a “victim”
of Penn’s conviction. See Espinoza, 677 F.3d at 733–34 (holding loss sustained
by pawn shop that bought stolen firearms from defendant was not caused by
conduct underlying defendant’s felon-in-possession conviction); United
States v. West, 646 F.3d 745, 751 (10th Cir. 2011) (holding damage caused to
cars and store while defendant was fleeing from police was not caused by
conduct underlying defendant’s felon-in-possession conviction); United

5
The district court ordered Penn to pay restitution based on his felon-in-possession
conviction. That offense requires proof that (1) the defendant knowingly possessed a
firearm; (2) before possessing that firearm, the defendant had been convicted of a felony;
and (3) before the defendant possessed the firearm, it traveled in and affected interstate
commerce. United States v. Ortiz, 927 F.3d 868, 874 (5th Cir. 2019).
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States v. Reed, 80 F.3d 1419, 1421 (9th Cir. 1996) (holding damage caused to
vehicles while defendant was fleeing from police was not caused by conduct
underlying defendant’s felon-in-possession conviction). Thus, § 3663 could
not serve as the basis for the restitution order.
According to the government, however, the district court intended to
order restitution under 18 U.S.C. § 3583(d). That statute allows a court to
impose as a condition of supervised release any discretionary condition of
probation found in § 3563(b), including “restitution to a victim of the offense
under section 3556.” Id. §§ 3583(d), 3563(b)(2). In turn, § 3556 provides that
a court “shall order restitution in accordance with section 3663A, and may
order restitution in accordance with section 3663.” Id. § 3556. But restitution
ordered as a condition of supervised release is “not subject to the limitation
of section 3663(a) or 3663A(c)(1)(A).” Id. § 3563(b)(2).
The government argues that the inapplicable “limitation” to which
§ 3563(b) refers is the definition of “victim” in § 3663(a)(2), which more or
less codifies the Hughey rule. We disagree. Sections 3663(a) and
3663A(c)(1)(A) limit restitution under those statutes to a list of enumerated
offenses. See id. §§ 3663(a)(1)(A), 3663A(c)(1)(A). The “limitation”
excluded by § 3563(b)(2) is that enumerated-crimes limitation, not the
Hughey rule. See Love, 431 F.3d at 480 & n.11.
Applying the Hughey rule to § 3563(b)(2) makes sense. Restitution
under that statute is limited to victims “of the offense,” a phrase nearly
identical to the one that the Court construed in Hughey, 495 U.S. at 413 n.1
Indeed, every circuit court that has considered this issue has held that the
Hughey rule applies to § 3563(b)(2). See, e.g., United States v. Varrone, 554
F.3d 327, 333–34 (2d Cir. 2009) (Sotomayor, J.); United States v. Freeman,
741 F.3d 426, 433–35 (4th Cir. 2014); United States v. Batson, 608 F.3d 630,
636–37 (9th Cir. 2010). We too have observed that restitution imposed under
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§ 3563(b)(2) must be “limited to losses from the crime of conviction.” United
States v. Nolen, 523 F.3d 331, 333 (5th Cir. 2008).
In sum, restitution imposed as a condition of supervised release can
compensate only for losses caused by the specific conduct that is the basis for
the offense of conviction. Hughey, 495 U.S. at 413. For that reason, even if
the district court intended to order restitution as a condition of supervised
release, the court lacked authority to do so. See Espinoza, 677 F.3d at 733–34;
West, 646 F.3d at 751. We thus reverse the district court’s restitution order.
D.
Fourth, Penn contends that 18 U.S.C. § 922(g), as construed, is
unconstitutional. Penn preserved this issue by raising it in his motion to
dismiss the indictment. We review the constitutionality of a federal statute
de novo. United States v. Portillo-Munoz, 643 F.3d 437, 439 (5th Cir. 2011).
Section 922(g) prohibits some people from possessing a firearm “in
or affecting commerce.” 18 U.S.C. § 922(g). We have held that the “in or
affecting commerce” element is satisfied if the firearm had “a past
connection to interstate commerce.” United States v. Fitzhugh, 984 F.2d 143,
146 (5th Cir. 1993). Under that interpretation, Penn argues, § 922(g) exceeds
Congress’s power under the Commerce Clause.
As Penn properly concedes, our precedent forecloses this argument.
See, e.g., United States v. Alcantar, 733 F.3d 143, 145 (5th Cir. 2013). He
contends, though, that we should reinterpret § 922(g) in light of the Supreme
Court’s decision in Bond v. United States, 572 U.S. 844 (2014). But Bond did
not address § 922(g) or abrogate our precedent. See United States v. Brooks,
770 F. App’x 670, 670 (5th Cir. 2019) (unpublished). Accordingly, we are
bound by our settled precedent and conclude that this issue is foreclosed.
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III.
For the foregoing reasons, we reverse the district court’s restitution
order and affirm Penn’s conviction and sentence in all other respects.
AFFIRMED IN PART; REVERSED IN PART.
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