                              In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

Nos. 03-3789 & 03-3752
UNITED STATES OF AMERICA,
                               Plaintiff-Appellee, Cross-Appellant,

                                  v.


BRIAN KELLER,
                            Defendant-Appellant, Cross-Appellee.

                          ____________
          Appeals from the United States District Court for
          the Northern District of Illinois, Eastern Division.
              No. 02 CR 1086—James B. Moran, Judge.
                          ____________
        ARGUED MAY 24, 2004—DECIDED JULY 21, 2004
                          ____________



  Before RIPPLE, MANION and EVANS, Circuit Judges.
  RIPPLE, Circuit Judge. Brian Keller was indicted on one
count of being a felon in possession of a weapon in violation
of 18 U.S.C. § 922(g). The district court denied Mr. Keller’s
motion to dismiss the indictment. After his conviction, Mr.
Keller was sentenced to seventy months’ imprisonment. Mr.
Keller now appeals the district court’s denial of his motion
to dismiss the indictment; the Government cross-appeals the
district court’s grant of a downward departure to Mr. Keller.
2                                    Nos. 03-3789 & 03-3752

For the reasons set forth in the following opinion, we affirm
Mr. Keller’s conviction, but vacate the district court’s sen-
tence and remand for resentencing.


                              I
                     BACKGROUND
A. Facts
  On May 8, 2002, Mr. Keller was released from state prison
where he had been serving a sentence for aggravated battery
of a police officer. According to Mr. Keller, while imprisoned
on this charge, he had determined that, upon his release, he
was not going to engage in further criminal activity and,
more specifically, was going to leave his gang, the Black
Stones.
  Mr. Keller’s resolution was more difficult to keep than he
anticipated. Shortly after his release from prison, Mr. Keller
suffered a gunshot wound to the face while in a local bar. In
his moving papers and statements to the district court, Mr.
Keller explained that this incident was related to his efforts
to leave his gang. However, at the time of the incident, Mr.
Keller did not provide the police with this background
information.
  In the next month, Mr. Keller was the victim of a drive-by
shooting and also was the victim of an armed robbery.
Through the grapevine, Mr. Keller discovered that the in-
dividuals who had robbed him also were involved in the
shooting at the bar in May.
  At some time between the robbery and July 4, 2002, Mr.
Keller obtained a firearm. The weapon had been manufac-
tured outside the state of Illinois and, apparently, had been
stolen from the Atlanta, Georgia police department. Mr.
Nos. 03-3789 & 03-3752                                        3

Keller was carrying this weapon on July 4, 2002, while
walking with his fiancée at Rainbow Beach in Chicago. In an
affidavit submitted to the district court, Mr. Keller recounts
that the following events took place that evening:
    [A]t the time I was at the beach and the same boys were
    trying to attack me when they seen me, but I had the
    upper hand on them this time, but I was just trying to
    keep them from harming me again & my family. So I
    pulled out the gun when they approached me before
    they could get close up on me again like they did when
    they shot me in the face. And also when they robbed me
    a week later.
R.28, Ex.D at 1. An off-duty police officer observed Mr.
Keller chasing another person with a handgun. The officer
also saw Mr. Keller give the gun to his fiancée, who placed
it inside her purse. In his post-arrest statement to the police,
Mr. Keller explained that he had the gun for protection.
  Mr. Keller was charged and convicted in state court for
being a felon in possession of a weapon. He was sentenced
to three years’ imprisonment.


B. District Court Proceedings
  After Mr. Keller’s state conviction, a federal grand jury
returned a one-count indictment against Mr. Keller for being
a felon in possession of a weapon in or affecting interstate
commerce in violation of 18 U.S.C. § 922(g). Mr. Keller
moved to dismiss the indictment on the ground that § 922(g)
was not a valid exercise of Congress’ Commerce Power. The
district court denied the motion to dismiss.
  After a bench trial on stipulated facts, the district court
found Mr. Keller guilty on the charge of the indictment.
4                                     Nos. 03-3789 & 03-3752

Prior to sentencing, Mr. Keller moved for a downward de-
parture on the basis of duress pursuant to United States
Sentencing Guideline § 5K2.12. He argued that, given the
violence that he had encountered since his release from
prison, he needed to have some means of protecting himself
and his family.
  The district court considered the evidence in support of
the departure; it stated:
      I have read what people have submitted. It’s one of
    these situations where maybe—well, where the 5K2.12
    reason, it seems to me, justifies some modification but
    not much, because it’s a very thin coercion—I mean,
    obviously, the circumstances in which the defendant
    found himself are certainly not circumstance [sic] that
    are ones that most people are familiar with of just a
    different milieu of violence.
R.34 at 2. Regarding the incident on July 4, 2002, the court
noted that “[w]e don’t really have a basis for reasonably
knowing that the person who was being chased was en-
gaged in any kind of wrongful conduct. He may be gang-
related, that could well be true, but as I said, there is noth-
ing to indicate even that he was even armed at the time.” Id.
at 3.
  After hearing arguments, the court granted Mr. Keller a
two-level departure. In reaching its decision, the district
court stated it was influenced by the fact that Mr. Keller had
been the victim of multiple violent crimes after his release
from state prison. The court acknowledged that Mr. Keller’s
decision to arm himself was illegal; nevertheless, the court
believed that a minor departure was appropriate because
Nos. 03-3789 & 03-3752                                          5

Mr. Keller genuinely believed that he was at risk. Mr. Keller
                                                        1
then was sentenced to seventy months’ imprisonment.
  Mr. Keller now appeals the district court’s denial of his
motion to dismiss the indictment. The Government cross-
appeals Mr. Keller’s sentence on the ground that the district
court misapplied U.S.S.G. § 5K2.12.


                                 II
                           ANALYSIS
A. Commerce Clause Challenge
   In his appeal, Mr. Keller maintains that the district court
erred when it denied his motion to dismiss the indictment.
In his view, recent holdings of the Supreme Court have
defined more narrowly the limits of Congressional authority
under the Commerce Power to punish criminal conduct that
is noncommercial and purely local in character. Mr. Keller
submits that his conduct on July 4, 2002, falls squarely into
this category.
  We cannot accept Mr. Keller’s argument. On numerous
occasions, we not only have rejected Commerce Clause
                                 2
challenges to 18 U.S.C. § 922(g), but also have rejected the

1
  Mr. Keller’s federal sentence was to run concurrently with his
state sentence.
2
    18 U.S.C. § 922(g) provides in relevant part:
      (g) It shall be unlawful for any person—
      (1) who has been convicted in any court of, a crime punish-
      able by imprisonment for a term exceeding one year;
          ...
      to ship or transport in interstate or foreign commerce, or
      possess in or affecting commerce, any firearm or ammuni-
                                                    (continued...)
6                                        Nos. 03-3789 & 03-3752

specific argument presented by Mr. Keller—that the Supreme
Court’s recent decisions in United States v. Lopez, 514 U.S.
549 (1995) (striking down Gun-Free School Zones Act as an
invalid exercise of Congress’ commerce power), United States
v. Morrison, 529 U.S. 598 (2000) (holding unconstitutional
certain criminal provisions of the Violence Against Women
Act as an invalid exercise of Congress’ commerce power),
and Jones v. United States, 529 U.S. 848 (2000) (holding that
a private residence is not “used in” interstate commerce and
therefore concluding that federal arson statute does not
cover arson of a private residence), require us to reconsider
our prior decisions upholding the constitutionality of
§ 922(g) against Commerce Clause challenges. See, e.g.,
United States v. Fleischli, 305 F.3d 643, 653 (7th Cir. 2002);
United States v. Lemons, 302 F.3d 769, 771-73 (7th Cir. 2002);
United States v. Mitchell, 299 F.3d 632, 634-35 (7th Cir. 2002);
United States v. Wesela, 223 F.3d 656, 659-60 (7th Cir. 2000).
In short, we have recognized that the explicit jurisdictional
nexus contained in § 922(g)—“in or affecting com-
merce”—satisfies the Supreme Court’s requirement that
Congressional action have some connection to interstate
commerce. See Lemons, 302 F.3d at 771. Indeed, we have
determined that nothing in Lopez, Jones or Morrison “casts
doubt on the validity of § 922(g).” Wesela, 223 F.3d at 660.
Accordingly, we conclude that Mr. Keller’s Commerce
                                            3
Clause challenge to § 922(g) is meritless.


2
    (...continued)
       tion; or to receive any firearm or ammunition which has been
       shipped or transported in interstate or foreign commerce.
3
  Mr. Keller also is troubled by the possible effect of subsequent
federal prosecutions following state-court convictions. According
                                                     (continued...)
Nos. 03-3789 & 03-3752                                             7

B. Downward Departure
  In its cross-appeal, the Government contends that the
district court erred when it granted Mr. Keller a downward
departure pursuant to U.S.S.G. § 5K2.12. That provision
allows for such a departure “[i]f the defendant committed
the offense because of serious coercion, blackmail or duress,
under circumstances not amounting to a complete defense.”
The Government’s argument focuses on the elements of the
defense of duress: “(1) an immediate threat of death or
serious bodily injury, (2) a well-grounded fear that the
threat will be carried out, and (3) no reasonable opportunity
to avoid the threatened harm.” United States v. Toney, 27 F.3d
1245, 1248 (7th Cir. 1994). In the Government’s view, Mr.
Keller failed to establish that any of these elements were
present when he possessed the weapon on July 4, 2002.
Consequently, the Government maintains, the district court
erred when it granted the departure. We review de novo
whether the departure is “justified by the facts of the case.”
                     4
18 U.S.C. § 3742(e).


3
  (...continued)
to Mr. Keller, the practice of “federally reprosecuting state cases”
will “alter[ ] and weaken[ ]” the basic system of plea negotiations
in Illinois courts, will clog state dockets and will force more cases
into federal court. See Defendant-Appellant’s Br. at 27-28.
However, “the Federal Government has the right to decide that
a state prosecution has not vindicated a violation of the ‘peace
and dignity’ of the Federal Government.” Heath v. Alabama, 474
U.S. 82, 93 (1985).
4
    18 U.S.C. § 3742(e) provides in relevant part:
      Upon review of the record, the court of appeals shall deter-
      mine whether the sentence—
      ...
                                                      (continued...)
8                                              Nos. 03-3789 & 03-3752

    At the time Mr. Keller was sentenced, § 5K2.12 provided:
      If the defendant committed the offense because of seri-
      ous coercion, blackmail or duress, under circumstances
      not amounting to a complete defense, the court may
      decrease the sentence below the applicable guideline
      range. The extent of the decrease ordinarily should de-
      pend on the reasonableness of the defendant’s actions
      and on the extent to which the conduct would have been
      less harmful under the circumstances as the defendant
      believed them to be. Ordinarily coercion will be suf-
      ficiently serious to warrant departure only when it in-
      volves a threat of physical injury, substantial damage to
      property or similar injury resulting from the unlawful


4
    (...continued)
       (3) is outside the applicable guideline range, and
      ...
      (B) the sentence departs from the applicable guideline range
      based on a factor that—
      ...
      (iii) is not justified by the facts of the case . . . .
The section also provides that
      [t]he court of appeals shall give due regard to the opportu-
      nity of the district court to judge the credibility of the wit-
      nesses, and shall accept the findings of fact of the district
      court unless they are clearly erroneous and, except with re-
      spect to determinations under subsection (3)(A) or (3)(B),
      shall give due deference to the district court’s application of
      the guidelines to the facts. With respect to determinations
      under subsection (3)(A) or (3)(B), the court of appeals shall
      review de novo the district court’s application of the guide-
      lines to the facts.
18 U.S.C. § 3742(e).
Nos. 03-3789 & 03-3752                                      9

    action of a third party or from a natural emergency. The
    Commission considered the relevance of economic
    hardship and determined that personal financial diffi-
    culties and economic pressures upon a trade or business
    do not warrant a decrease in sentence.
U.S.S.G. § 5K2.12 (2002).
  We have not had an occasion to discuss at length the
parameters of § 5K2.12 with respect to § 922(g)(1) violations;
however, our colleagues on the Court of Appeals for the
Second Circuit have articulated some helpful guidance
regarding the application of § 5K2.12. In United States
v. Cotto, 347 F.3d 441 (2d Cir. 2003), the Second Circuit
observed:
    “The court is not confined to the classical definition of
    duress” when considering a departure under § 5K2.12.
    United States v. Smith, 987 F.2d 888, 891 (2d Cir. 1993)
    (quoting United States v. Johnson, 956 F.2d 894, 898 (9th
    Cir. 1992)). “If section 5K2.12 is to be accorded meaning-
    ful status, as the Sentencing Commission obviously
    intended, we must read it as providing a broader stand-
    ard of coercion as a sentencing factor than coercion as
    required to prove a complete defense at trial.” United
    States v. Cheape, 889 F.2d 477, 480 (3d Cir. 1989). Thus,
    although the affirmative defense of duress requires
    a well-founded fear of imminent bodily harm with no
    opportunity to escape, United States v. Stevens, 985 F.2d
    1175, 1181-82 (2d Cir. 1993), § 5K2.12 requires only a
    more general “threat of physical injury” or “substantial
    damage to property,” and thus reflects a broader con-
    ception of coercion than does the affirmative defense.
Id. at 445-46. However, it also noted that “the same logic
that animates the defense also animates § 5K2.12. Both the
Guidelines and the defense require an objective showing
10                                     Nos. 03-3789 & 03-3752

that a reasonable person would have been coerced under the
particular circumstances of the defendant’s case.” Id. at 446
(internal quotation marks and citations omitted). Finally, the
court stated that “a defendant’s generalized fear of a third
party . . . rather than . . . any explicit or implicit threat, is
insufficient to constitute the unusual or exceptional circum-
stances warranting a departure under § 5K2.12.” Id. at 446-
47.
  As suggested by the Second Circuit, we believe that, even
though the guideline provides considerably more leeway
than the affirmative defense, many of the same factors that
must be assessed in the case of the affirmative defense also
must be the principal points of inquiry when the court is
faced with the task of determining whether a downward
departure is warranted. Although broader in scope than the
defense of duress, § 5K2.12 is available only to those who
are operating under a current threat of violent and illegal
behavior and who reasonably believe that they have no
alternative but to arm themselves. The difference between
the evidence necessary to invoke the affirmative defense and
the evidence necessary to qualify for the downward depar-
ture is necessarily one of degree. Therefore, keeping in mind
the proper relationship between the defense and the guide-
line, we now examine our case law on the defense of duress
to identify the principal factors that ought to be considered
in determining whether a downward departure is appropri-
ate under the circumstances of this case.
  We have rejected the notion that returning to a dangerous
neighborhood, without more, constitutes a justification for
a § 922(g) violation. In United States v. Perez, 86 F.3d 735 (7th
Cir. 1996), the defendant argued that the circumstances
surrounding his crime supported submitting the defense of
duress to the jury. In that case, the defendant believed that
unmarked police cars outside his apartment building were,
Nos. 03-3789 & 03-3752                                     11

in fact, individuals waiting for him to exit the building un-
armed. Consequently, when he left his apartment to deposit
$600 in cash at the bank, he felt compelled to arm himself
before going out on the street. This court found that these
facts were insufficient evidence of “necessity—or duress, or
self-defense” to be presented to the jury:
      Even crediting fully Perez’s assertion that he genu-
    inely believed the men in the cars would try to rob him
    when he left the apartment, he has not come close to
    satisfying the elements of the defense of necessity. If
    ex-felons who feel endangered can carry guns, felon-
    in-possession laws will be dead letters. Upon release
    from prison most felons return to their accustomed
    haunts. Even those who go straight will in all likelihood
    continue to live in dangerous neighborhoods and
    consort with some dangerous people. Many of them will
    not go straight, but will return to dangerous activities
    such as the drug trade. Every drug dealer has a well-
    grounded fear of being robbed or assaulted, so that if
    Perez’s defense were accepted felon-in-possession laws
    would as a practical matter not apply to drug dealers.
    Cf. United States v. Gresso, 24 F.3d 879, 881-82 (7th Cir.
    1994); United States v. Gometz, 879 F.2d 256, 259-60 (7th
    Cir. 1989).
      The defense of necessity will rarely lie in a felon-in-
    possession case unless the ex-felon, not being engaged
    in criminal activity, does nothing more than grab a gun
    with which he or another is being threatened (the other
    might be the possessor of the gun, threatening suicide).
Id. at 736-37.
  As we noted in Perez, many convicted felons unfortunately
will return to a milieu of violence after serving their sen-
tences, and many—even those who desire to distance
12                                   Nos. 03-3789 & 03-3752

themselves from criminal activity—will become the victims
of violence. However, if § 5K2.12 were to operate as an
automatic sentence reduction for convicted felons who find
themselves in dangerous surroundings, invocation of the
guideline would render nugatory much of the Congressional
determination that felons ought not be permitted to carry
firearms.
  Although there is no question that Mr. Keller met with
violence after his release from prison, there also is no evi-
dence in the record that Mr. Keller believed that he likely
would meet with danger on the evening of July 4, 2002.
Similarly, absent from the record is any evidence that the
individuals whom Mr. Keller chased with the weapon were
engaging in (or threatening) criminal activity. See R.34 at 3.
Finally, the record does not suggest that Mr. Keller had no
alternative except to arm himself: There is no evidence that
Mr. Keller sought police protection, that such protection
was denied or that it proved ineffective. Nor is there evi-
dence that Mr. Keller considered relocating to an area where
he would be in less danger.
   At this juncture, we cannot, and need not, delineate the
precise factual circumstances that might warrant a § 5K2.12
departure in the context of a § 922(g)(1) violation. We think
it clear, however, that such a departure was not appropriate
here. Mr. Keller’s fear of gang-related violence, in the
absence of a more specific threat, of a more immediate harm
or of evidence that Mr. Keller considered alternatives to
arming himself, simply does not warrant a § 5K2.12 depar-
ture.


                        Conclusion
  For the reasons set forth above, we affirm Mr. Keller’s
conviction, but we reverse the district court’s grant of a
Nos. 03-3789 & 03-3752                                    13

downward departure pursuant to U.S.S.G. § 5K2.12. We
therefore vacate Mr. Keller’s sentence and remand for re-
sentencing consistent with this opinion.
       AFFIRMED in part; VACATED and REMANDED in part

A true Copy:
       Teste:

                         _____________________________
                          Clerk of the United States Court of
                            Appeals for the Seventh Circuit




                  USCA-02-C-0072—7-21-04
