969 F.3d 450
5th Cir.2020Background
- On July 6, 2017, Penn encountered Devante Scott and Kareem Robinson at his family’s apartment; Scott displayed a gun and a shootout ensued after Penn’s aunt handed Penn a gun.
- After exchanging fire, Penn fled in his girlfriend’s car while Scott and Robinson pursued and fired at him; Penn later lost them, drove on, then saw Officer Garcia following him.
- Penn admitted he did not stop for the officer because he was a felon with a gun, led police on a high‑speed chase, crashed into an apartment’s fence/wall, then took the gun and tossed it into a field before fleeing.
- Penn was charged with escape and with being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1); he raised a justification/self‑defense necessity theory at trial.
- The district court refused to give a justification instruction and excluded certain evidence; a jury convicted Penn, and the court ordered restitution for a bullet‑damaged car and for the apartment/fence damage.
- On appeal, the Fifth Circuit affirmed the conviction and sentence but reversed the restitution order as beyond statutory authority.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court erred by refusing a jury instruction on justification/self‑defense | The justification defense was unavailable because Penn retained the gun after the threat ended and attempted to evade police | Penn argued he briefly possessed the gun to defend himself and precedent requires only that he not possess it for any "significant period" after the danger | Court held Penn failed to prove the fifth element (possession only during danger); refusing instruction was correct |
| Whether exclusion of evidence about Scott’s prior threats/violence was erroneous | Evidence was irrelevant if justification defense was unavailable | Penn sought to present the history to support his self‑defense claim and "tell his side of the story" | Evidence exclusion was not an abuse of discretion; any error would be harmless because the defense was legally unavailable |
| Whether restitution for car and fence damage was authorized by statute | Government argued restitution could be imposed (court cited § 3663 but also claimed § 3583/§ 3563 authority) | Penn argued losses were not caused by conduct underlying the § 922(g) conviction and thus restitution was unauthorized | Court held restitution exceeded statutory authority under Hughey; reversed restitution order |
| Whether § 922(g)'s interstate‑commerce element is unconstitutional as applied | Government relied on circuit precedent treating the commerce element as satisfied by a past interstate commerce connection | Penn argued Bond v. United States and other developments cast doubt on § 922(g)’s scope | Court rejected constitutional challenge as foreclosed by Fifth Circuit precedent and affirmed conviction |
Key Cases Cited
- United States v. Panter, 688 F.2d 268 (5th Cir. 1982) (justification defense available where defendant possessed gun only during immediate emergency and promptly relinquished it)
- United States v. Harper, 802 F.2d 115 (5th Cir. 1986) (recognizing justification/necessity defense in felon‑in‑possession context)
- United States v. Gant, 691 F.2d 1159 (5th Cir. 1982) (sets elements of justification defense, including possession only during danger)
- United States v. Moore, 733 F.3d 171 (6th Cir. 2013) (officer’s presence can provide immediate opportunity to divest weapon; failure to do so undermines justification claim)
- Hughey v. United States, 495 U.S. 411 (1990) (restitution under § 3663 limited to losses caused by the conduct underlying the offense of conviction)
- United States v. Espinoza, 677 F.3d 730 (5th Cir. 2012) (applying Hughey rule to reject restitution for losses not caused by felon‑in‑possession conduct)
- United States v. Nolen, 523 F.3d 331 (5th Cir. 2008) (restitution as a supervised‑release condition must be limited to losses from the crime of conviction)