United States of America v. Tracy A. Perry

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-4249
United States of America,
Plaintiff-Appellee,
v.
Tracy A. Perry,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. IP 99-71-CR-01 B/F--Sarah Evans Barker, Chief Judge.
Argued April 18, 2000--Decided August 1, 2000
Before Flaum, Chief Judge, and Ripple and Williams,
Circuit Judges.
Flaum, Chief Judge. Tracy Perry pled guilty to
one count of being a felon in possession of a
firearm in violation of 18 U.S.C. sec. 922(g)(1).
He appeals his sentence, and for the reasons
stated herein, we affirm.
I. BACKGROUND
On March 30, 1999, Tracy Perry went to a
McDonald’s on East 38th Street in Indianapolis.
He called Kesha Hutchinson, his girlfriend who
lived a few blocks away, and asked her to meet
him at the McDonald’s. When Ms. Hutchinson
arrived about five minutes later, she saw Perry
involved in an argument with another man. The
other man appeared to be threatening Perry with
a bottle, and Perry was waving a gun in the air
while shouting at the man. Ms. Hutchinson went up
to the pair to break up the fight and grabbed
Perry by the back of his shirt. Perry swung
around, pointed his gun at Ms. Hutchinson, and
told her to "shut up."
Perry put the gun in a duffle bag and began to
walk with Ms. Hutchinson back to her apartment.
Ms. Hutchinson noticed that Perry was very drunk,
and she began to be afraid of him. Ms. Hutchinson
saw a friend walking near her apartment complex
and told the friend that Perry had a gun. The

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friend then related this information to a
security guard who was working at the entrance to
Ms. Hutchinson’s complex. A sheriff’s deputy
happened to be in the area. He stopped Perry near
the complex entrance and found the gun in Perry’s
duffle bag.
Immediately after the incident, Ms. Hutchinson
gave a statement to the police that detailed the
events of that evening as described above. Perry
pled guilty to being a felon in possession of a
firearm in violation of 18 U.S.C. sec. 922(g)(1),
and a sentencing hearing was held. At that
hearing, Ms. Hutchinson testified, and her
recollection of events matched the account she
had given the police on the night of the
incident. Perry also testified, claiming that he
left the McDonald’s immediately after telephoning
Ms. Hutchinson and that he was not involved in an
argument with another man that night.
The government requested a four-level sentence
enhancement for possession of a gun in connection
with felony criminal recklessness based on
Perry’s conduct in waiving the gun at the other
man during their argument. The district court
found Ms. Hutchinson’s version of events credible
and granted the government’s motion. Perry was
sentenced to eighty-four months in prison. He now
appeals.
II. DISCUSSION
Perry argues that the district court erred when
it enhanced his sentence under U.S.S.G. sec.
2K2.1(b)(5) for possession of a gun in connection
with a felony. The district court based that
enhancement on its finding by a preponderance of
the evidence that Perry’s conduct in waiving a
gun at the unknown man at the McDonald’s amounted
to felony criminal recklessness in violation of
Indiana Code 35-42-2-2. Perry contends that the
facts as recounted by Ms. Hutchinson and accepted
by the trial court support the conclusion that
his conduct did not violate that Indiana statute
because he was acting in self-defense. He argues
that the district court erred by overlooking this
affirmative defense in making its determination
that he violated Indiana law.
At the sentencing hearing, Perry asserted that
Ms. Hutchinson was lying and that there was no
encounter with another man at the McDonald’s. He
did not argue a self-defense theory before the
lower court, and the government now asserts that
he has waived this argument.
Waiver is the intentional relinquishment of a
known right. See United States v. Olano, 507 U.S.
725, 733 (1993); United States v. Staples, 202

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F.3d 992, 995 (7th Cir. 2000). Forfeiture, on the
other hand, is the failure to make a timely
assertion of a right. See Olano, 507 U.S. at 731;
Staples, 202 F.3d at 995. "Where waiver is
accomplished by intent, forfeiture comes about
through neglect." Staples, 202 F.3d at 995. While
waived errors are unreviewable, we review
forfeited errors under the plain error standard.
See Olano, 507 U.S. at 733; Staples, 202 F.3d at
995.
In this case, Perry asserts a theory of self-
defense for the first time on appeal. In Indiana,
self-defense is an affirmative defense that is
"recognized as a valid justification for an
otherwise criminal act." Miller v. State, 720
N.E.2d 696, 699 (Ind. 1999). While the State
bears the burden of disproving self-defense
beyond a reasonable doubt, the defendant bears
the burden of production with regard to that
defense. See id. at 700; Jackson v. State, 712
N.E.2d 986, 989 (Ind. 1999); United States v.
Talbott, 78 F.3d 1183, 1186 (7th Cir. 1996). The
burden of production means that a defendant "must
produce sufficient evidence to require [the
defense’s] submission to the jury," or in this
case, the sentencing judge. Talbott, 78 F.3d at
1186. Thus, Perry was responsible for asserting
the affirmative defense of self-defense before
the sentencing court and for putting forth some
evidence in support of that defense. It is
undisputed that Perry did not argue the self-
defense theory below. However, because we
construe waiver principles liberally in favor of
the defendant, see Johnson v. Zerbst, 304 U.S.
458, 464 (1938); United States v. Brock, 782 F.2d
1442, 1448 (7th Cir. 1986), and because there is
no evidence in the record that Perry was aware of
his right to assert the affirmative defense of
self-defense and intentionally relinquished that
right, we conclude that Perry forfeited his
claim, rather than waived it. Therefore, we
review his assertion of error under the plain
error standard.
In order to prevail under plain error review,
"[t]here must be an ’error’ that is ’plain’ and
that ’affect[s] substantial rights.’" Olano, 507
U.S. at 731 (brackets in the original). As with
any standard of review, the defendant must first
show that there was an error. In other words, the
defendant must demonstrate that "a legal rule was
violated during the district court proceedings."
Id. at 734. In this case, the district court
examined two versions of the evidence presented
at the sentencing hearing and concluded that Ms.
Hutchinson’s version of events was more credible
than that recounted by the defendant. Perry has
pointed to nothing in the record that
demonstrates that the district court erred in its

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consideration of the evidence before it. The
district court’s conclusion that Perry acted with
criminal recklessness under Indiana law is amply
supported by the record, and the scant evidence
that Perry may have been acting in self-defense
does not make an alternate conclusion so patently
obvious that it was plain error for the district
court to find as it did. Because we find no error
in the district court’s conduct of Perry’s
sentencing hearing, we affirm the sentence
imposed by that court.
III. CONCLUSION
For the foregoing reasons, Perry’s sentence is
Affirmed.

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