223 F.3d 431 (7th Cir. 2000)
United States of America, Plaintiff-Appellee,v.Tracy A. Perry, Defendant-Appellant.
No. 99-4249
In the  United States Court of Appeals  For the Seventh Circuit
Argued April 18, 2000Decided August 1, 2000

Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division.  No. IP 99-71-CR-01 B/F--Sarah Evans Barker, Chief Judge.
Before Flaum, Chief Judge, and Ripple and Williams,  Circuit Judges.
Flaum, Chief Judge.


1
Tracy Perry pled guilty to  one count of being a felon in possession of a  firearm in violation of 18 U.S.C. sec. 922(g)(1).  He appeals his sentence, and for the reasons  stated herein, we affirm.

I.  BACKGROUND

2
On March 30, 1999, Tracy Perry went to a  McDonald's on East 38th Street in Indianapolis.  He called Kesha Hutchinson, his girlfriend who  lived a few blocks away, and asked her to meet  him at the McDonald's. When Ms. Hutchinson  arrived about five minutes later, she saw Perry  involved in an argument with another man. The  other man appeared to be threatening Perry with  a bottle, and Perry was waving a gun in the air  while shouting at the man. Ms. Hutchinson went up  to the pair to break up the fight and grabbed  Perry by the back of his shirt. Perry swung  around, pointed his gun at Ms. Hutchinson, and  told her to "shut up."


3
Perry put the gun in a duffle bag and began to  walk with Ms. Hutchinson back to her apartment.  Ms. Hutchinson noticed that Perry was very drunk,  and she began to be afraid of him. Ms. Hutchinson  saw a friend walking near her apartment complex  and told the friend that Perry had a gun. The  friend then related this information to a  security guard who was working at the entrance to  Ms. Hutchinson's complex. A sheriff's deputy  happened to be in the area. He stopped Perry near  the complex entrance and found the gun in Perry's  duffle bag.


4
Immediately after the incident, Ms. Hutchinson  gave a statement to the police that detailed the  events of that evening as described above. Perry  pled guilty to being a felon in possession of a  firearm in violation of 18 U.S.C. sec. 922(g)(1),  and a sentencing hearing was held. At that  hearing, Ms. Hutchinson testified, and her  recollection of events matched the account she  had given the police on the night of the  incident. Perry also testified, claiming that he  left the McDonald's immediately after telephoning  Ms. Hutchinson and that he was not involved in an  argument with another man that night.


5
The government requested a four-level sentence  enhancement for possession of a gun in connection  with felony criminal recklessness based on  Perry's conduct in waiving the gun at the other  man during their argument. The district court  found Ms. Hutchinson's version of events credible  and granted the government's motion. Perry was  sentenced to eighty-four months in prison. He now  appeals.

II.  DISCUSSION

6
Perry argues that the district court erred when  it enhanced his sentence under U.S.S.G. sec.  2K2.1(b)(5) for possession of a gun in connection  with a felony. The district court based that  enhancement on its finding by a preponderance of  the evidence that Perry's conduct in waiving a  gun at the unknown man at the McDonald's amounted  to felony criminal recklessness in violation of  Indiana Code 35-42-2-2. Perry contends that the  facts as recounted by Ms. Hutchinson and accepted  by the trial court support the conclusion that  his conduct did not violate that Indiana statute  because he was acting in self-defense. He argues  that the district court erred by overlooking this  affirmative defense in making its determination  that he violated Indiana law.


7
At the sentencing hearing, Perry asserted that  Ms. Hutchinson was lying and that there was no  encounter with another man at the McDonald's. He  did not argue a self-defense theory before the  lower court, and the government now asserts that  he has waived this argument.


8
Waiver is the intentional relinquishment of a  known right. See United States v. Olano, 507 U.S.  725, 733 (1993); United States v. Staples, 202  F.3d 992, 995 (7th Cir. 2000). Forfeiture, on the  other hand, is the failure to make a timely  assertion of a right. See Olano, 507 U.S. at 731;  Staples, 202 F.3d at 995. "Where waiver is  accomplished by intent, forfeiture comes about  through neglect." Staples, 202 F.3d at 995. While  waived errors are unreviewable, we review  forfeited errors under the plain error standard.  See Olano, 507 U.S. at 733; Staples, 202 F.3d at  995.


9
In this case, Perry asserts a theory of self-  defense for the first time on appeal. In Indiana,  self-defense is an affirmative defense that is  "recognized as a valid justification for an  otherwise criminal act." Miller v. State, 720  N.E.2d 696, 699 (Ind. 1999). While the State  bears the burden of disproving self-defense  beyond a reasonable doubt, the defendant bears  the burden of production with regard to that  defense. See id. at 700; Jackson v. State, 712  N.E.2d 986, 989 (Ind. 1999); United States v.  Talbott, 78 F.3d 1183, 1186 (7th Cir. 1996). The  burden of production means that a defendant "must  produce sufficient evidence to require [the  defense's] submission to the jury," or in this  case, the sentencing judge. Talbott, 78 F.3d at  1186. Thus, Perry was responsible for asserting  the affirmative defense of self-defense before  the sentencing court and for putting forth some  evidence in support of that defense. It is  undisputed that Perry did not argue the self-  defense theory below. However, because we  construe waiver principles liberally in favor of  the defendant, see Johnson v. Zerbst, 304 U.S.  458, 464 (1938); United States v. Brock, 782 F.2d  1442, 1448 (7th Cir. 1986), and because there is  no evidence in the record that Perry was aware of  his right to assert the affirmative defense of  self-defense and intentionally relinquished that  right, we conclude that Perry forfeited his  claim, rather than waived it. Therefore, we  review his assertion of error under the plain  error standard.


10
In order to prevail under plain error review,  "[t]here must be an 'error' that is 'plain' and  that 'affect[s] substantial rights.'" Olano, 507  U.S. at 731 (brackets in the original). As with  any standard of review, the defendant must first  show that there was an error. In other words, the  defendant must demonstrate that "a legal rule was  violated during the district court proceedings."  Id. at 734. In this case, the district court  examined two versions of the evidence presented  at the sentencing hearing and concluded that Ms.  Hutchinson's version of events was more credible  than that recounted by the defendant. Perry has  pointed to nothing in the record that  demonstrates that the district court erred in its  consideration of the evidence before it. The  district court's conclusion that Perry acted with  criminal recklessness under Indiana law is amply  supported by the record, and the scant evidence  that Perry may have been acting in self-defense  does not make an alternate conclusion so patently  obvious that it was plain error for the district  court to find as it did. Because we find no error  in the district court's conduct of Perry's  sentencing hearing, we affirm the sentence  imposed by that court.

III.  CONCLUSION

11
For the foregoing reasons, Perry's sentence is  Affirmed.

