United States v. Joseph Kelly

Fifth Circuit

United States v. Joseph Kelly

694 F. App'x 266

CourtCourt of Appeals for the Fifth Circuit

DecidedJuly 24, 2017

Docket16-60852 Summary Calendar

StatusUnpublished

This text of 694 F. App'x 266 (United States v. Joseph Kelly) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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United States v. Joseph Kelly, 694 F. App'x 266 (5th Cir. 2017).

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Opinion

PER CURIAM: *

Defendant-Appellant Joseph Terrell Kelly appeals the revocation of his supervised release. He contends that the district court erred in finding that he violated the conditions of his supervised release by committing the new criminal offense of being a felon in possession of a firearm. Kelly concedes that he was a convicted felon and was arrested in possession of a gun but asserts that he was legally justified in possessing the gun because he took it to protect himself from an imminent threat of danger.

Viewing the evidence in the light most favorable to the government, a reasonable trier of fact could have concluded that Kelly committed the offense of being a felon , in possession of a firearm and was not entitled to the defense of justification. See United States v. Alaniz-Alaniz, 38 F.3d 788, 792 (5th Cir. 1994). The evidence does not support the conclusion that Kelly had the gun in response to an imminent threat of harm or that, in reacting to a reasonable and immediate fear for his life and safety, he temporarily possessed the gun in the course of defending himself. See United States v. Gant, 691 F.2d 1159, 1162 (5th Cir. 1982); United States v. Panter, 688 F.2d 268, 272 (5th Cir. 1982). Neither does the record support a conclusion that there was a continuing threat to Kelly’s— or any other person’s—-life or safety when he was found with the gun approximately four hours after he first took possession of *267 it. Kelly may not assert the defense of justification when, as here, there was not a real emergency that left no time to seek a reasonable, legal alternative, and when he had the firearm for a significant period after the purported time of endangerment. See Gant, 691 F.2d at 1163-64; Panter, 688 F.2d at 272.

In sum, there was sufficient evidence to support the conclusion that Kelly violated the conditions of his supervised release and that revocation was merited. See 18 U.S.C. § 3583(e)(3); United States v. Jang, 574 F.3d 263, 265-67 (5th Cir. 2009). The district court’s judgment is AFFIRMED.

*

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4,

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PER CURIAM: *

Defendant-Appellant Joseph Terrell Kelly appeals the revocation of his supervised release. He contends that the district court erred in finding that he violated the conditions of his supervised release by committing the new criminal offense of being a felon in possession of a firearm. Kelly concedes that he was a convicted felon and was arrested in possession of a gun but asserts that he was legally justified in possessing the gun because he took it to protect himself from an imminent threat of danger.

Viewing the evidence in the light most favorable to the government, a reasonable trier of fact could have concluded that Kelly committed the offense of being a felon , in possession of a firearm and was not entitled to the defense of justification. See United States v. Alaniz-Alaniz, 38 F.3d 788, 792 (5th Cir. 1994). The evidence does not support the conclusion that Kelly had the gun in response to an imminent threat of harm or that, in reacting to a reasonable and immediate fear for his life and safety, he temporarily possessed the gun in the course of defending himself. See United States v. Gant, 691 F.2d 1159, 1162 (5th Cir. 1982); United States v. Panter, 688 F.2d 268, 272 (5th Cir. 1982). Neither does the record support a conclusion that there was a continuing threat to Kelly’s— or any other person’s—-life or safety when he was found with the gun approximately four hours after he first took possession of *267 it. Kelly may not assert the defense of justification when, as here, there was not a real emergency that left no time to seek a reasonable, legal alternative, and when he had the firearm for a significant period after the purported time of endangerment. See Gant, 691 F.2d at 1163-64; Panter, 688 F.2d at 272.

In sum, there was sufficient evidence to support the conclusion that Kelly violated the conditions of his supervised release and that revocation was merited. See 18 U.S.C. § 3583(e)(3); United States v. Jang, 574 F.3d 263, 265-67 (5th Cir. 2009). The district court’s judgment is AFFIRMED.

*

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4,

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694 F. App'x 266, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-joseph-kelly-ca5-2017.

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