                                                                 [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________               FILED
                                                                  U.S. COURT OF APPEALS
                                                                    ELEVENTH CIRCUIT
                                            No. 11-12496
                                                                    NOVEMBER 16, 2011
                                        Non-Argument Calendar
                                                                         JOHN LEY
                                      ________________________            CLERK

                               D.C. Docket No. 1:10-cr-00174-WSD-1



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                  Plaintiff-Appellee,


                                                 versus

PETER ASHU,

llllllllllllllllllllllllllllllllllllllll                            Defendant-Appellant.

                                     ________________________

                           Appeal from the United States District Court
                              for the Northern District of Georgia
                                 ________________________

                                           (November 16, 2011)

Before BARKETT, MARCUS and BLACK, Circuit Judges.

PER CURIAM:
       Peter Ashu appeals his misdemeanor conviction for forcibly resisting

federal Immigration and Customs Enforcement agents engaged in their official

duties in violation of 18 U.S.C. § 111(a). At his trial before a magistrate judge,

Ashu, a citizen of Cameroon, offered necessity as an affirmative defense. The

magistrate, assuming the availability of the defense, concluded Ashu could not

prove the elements of necessity and found him guilty. Ashu appealed to the

district court, which upheld the conviction. In this appeal, Ashu argues the district

court erred in finding he did not establish the elements of the necessity defense.

After review, we affirm.1

       To prevail on a necessity defense, a defendant must establish by a

preponderance of the evidence (1) he was under a present, imminent, and

impending threat of death or serious bodily injury, (2) he did not recklessly or

negligently place himself in a situation where he would be forced to engage in

criminal conduct, (3) he had no reasonable, legal alternative to violating the law,

and (4) his criminal conduct bore a direct causal relationship to avoiding the

threatened harm. United States v. Deleveaux, 205 F.3d 1292, 1297 (11th Cir.


       1
         We review de novo a district court's determination whether a defendant has proffered
sufficient evidence to permit the defense of necessity. See United States v. Dicks, 338 F.3d 1256,
1257 (11th Cir. 2003).



                                                2
2000). Proving imminent danger “requires nothing less than an immediate

emergency.” United States v. Rice, 214 F.3d 1295, 1297 (11th Cir. 2000).

      Assuming, without deciding, necessity was a defense available for this

offense, Ashu did not present sufficient evidence to prevail. He did not offer

adequate evidence showing he would be in imminent danger on the day of removal

or immediately upon his arrival in Cameroon. See Deleveaux, 205 F.3d at 1297.

In fact, Ashu testified he would feel safe in certain parts of Cameroon. Ashu

further claimed his eye injury would worsen considerably because of lack of

health care in Cameroon, but he failed to establish his injury presented an

immediate emergency. See Rice, 214 F.3d at 1297. In addition, Ashu had legal

alternatives available to him—he could have petitioned this Court for review of

any of the adverse decisions in his immigration proceedings rather than forcibly

resist his removal. See Deleveaux, 205 F.3d at 1297.

      AFFIRMED.




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