                                                                       FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                January 26, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                     No. 09-2078
 KELLY GRANT MERCER,                          (D.C. No. 07-CR-01173-JEC-1)
                                                         (D.N.M.)
          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before BRISCOE, BALDOCK, and HARTZ, Circuit Judges.


      A petit jury convicted Defendant Kelly Grant Mercer of being a felon in

possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The district court

sentenced him to 180 months’ imprisonment. On appeal, Defendant asserts the

district court erred in refusing to instruct the jury on his justification defense.

According to Defendant, the circumstances surrounding a threat against his life

excused his possession of the firearm. Viewing the evidence presented in the light

most favorable to Defendant, we hold such evidence was not sufficient to support a

jury instruction on the justification defense, and summarily affirm.



      *
         This order and judgment is not binding precedent except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however,
for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      The parties are familiar with the historical facts over which no material dispute

exists, and we need not repeat them here. Those facts are ably set forth in the

district court’s order explaining its rationale for denying Defendant’s proposed

justification defense instruction. See United States v. Mercer, No. 07-CR-1173,

Memorandum Opinion & Order (D.N.M. Nov. 4, 2008) (Docket # 93) (hereinafter

“Court’s Op.”). 1 We do not question the proposition that the circumstances under

which Defendant possessed a firearm caused him to fear for his safety. We accept

the fact that Archuleta, the leader of a prison gang, may have wanted to harm him.

But such fear alone is simply not sufficient to justify Defendant’s illicit conduct.

Otherwise, scores of felons, legitimately concerned for their safety, could and would

possess firearms–a wholly undesirable state of affairs that would severely impede

§ 922(g)(1)’s principal aim, i.e., to prevent gun violence by those whose past

misdeeds suggest they are more likely to commit criminal acts.            To warrant

instructing the jury on a justification defense, Defendant’s burden was not so light

as he suggests. Defendant had to present evidence whereby a reasonable jury could

find four elements by a preponderance of the evidence. See United States v. Nevels,

490 F.3d 800, 805 n.3 (10th Cir. 2007). The trial record reveals that Defendant

utterly failed to establish at least two of these elements, namely that he (1) “was


      1
          The district court’s order sets forth the chronology of events in which it
refers to, among other dates, “March 23, 2008” and “March 27, 2008.” Court’s Op.
at 3. Our review of the record indicates those dates should read “March 23, 2007”
and “March 27, 2007.”

                                          2
under an unlawful and present, imminent and impending threat of such nature as to

induce a well-grounded apprehension of death or serious bodily injury;” and (2) “had

no reasonable, legal alternative to violating the law, a chance both to refuse to do the

criminal act and also to avoid the threatened harm.” United States v. Butler, 485

F.3d 569, 572 (10th Cir. 2007) (internal brackets, quotations, and citation omitted).

      The district court justifiably found that the threat to Defendant “was not

immediate, making it feasible for Mercer to have considered all of his options and

pursued a lawful one,” such as seeking advice and protection from law enforcement

officials. Court’s Op. at 8 (emphasis in original). Defendant admitted the same. At

trial, the prosecutor asked him: “So there are several things that you could have

done, other alternatives that you could have done, other than arming yourself with

a firearm?” Defendant replied: “Yes, there were.” Rec. Vol 3, at 158. Moreover,

Defendant acknowledged he “was not aware” of “any present, imminent danger”

when he procured the unloaded firearm from his brother’s apartment. Rec. Vol. 3,

at 150-51. 2   The record simply belies the presence of an imminent threat to

Defendant so close in physical and temporal proximity as to justify his possession

of a firearm. See United States v. Dutton, 2009 WL 3437835, at *3 (10th Cir. 2009)

(unpublished). Absent “extraordinary circumstances” most assuredly not present



      2
        Black’s Law Dictionary 421 (8th ed. 2004) defines “imminent danger” as an
“immediate, real threat to one’s safety” or the “danger resulting from an immediate
threatened injury.”

                                           3
here (whatever they might be), a justification defense instruction is warranted only

where the “‘ex-felon, not being engaged in criminal activity, does nothing more than

grab a gun with which he or another is [presently] being threatened.’” Id. at *5

(quoting United States v. Perez, 86 F.3d 735, 737 (7th Cir. 1996)). 3 According to the

district court:

       The lack of immediacy is clear from Mercer’s testimony indicating that
       the unloaded gun was of no use to him without bullets, which he
       intended to get in some unspecified way, at some later time. Further,
       testimony established that Mercer left his girlfriend alone in the truck
       [in a public space outside his brother’s apartment] while he went inside
       to get the gun, leaving vulnerable the very person he claimed he wanted
       to protect.      Urgency, then, was not present.         Mercer readily
       acknowledges that he could have sought police protection but did not.
       . . . [E]mergency travel permits are available for probation supervisees,
       but Mercer did not request one. Mercer dismissed as futile the notion
       of going to the authorities for protection or seeking permission to travel
       to a safer place until Archuleta was apprehended. Yet the law requires
       a defendant asserting a justification defense to choose a lawful
       alternative where one exists.

Court’s Op. at 8-9. The district court correctly decided that, upon the evidence

presented, Defendant was not entitled to a justification defense instruction. When

a district court accurately takes the measure of a case and articulates a cogent

rationale, more often than not our writing at length serves no meaningful purpose.




       3
        For one court’s view of what constitutes extraordinary circumstances, see
United States v. Gomez, 92 F.3d 770 (9th Cir. 1996), where defendant “tried many
other avenues first” before arming himself. Id. at 777.

                                           4
The judgment of the district court is

      AFFIRMED.

                                        Entered for the Court,



                                        Bobby R. Baldock
                                        United States Circuit Judge




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