NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 6, 2011
Decided April 12, 2011
Before
JOEL M. FLAUM, Circuit Judge
DIANE P. WOOD, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 10‐2668
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Southern District of Indiana,
Indianapolis Division.
v. No. 1:09CR00124‐001
STEVEN L. HUNTER, William T. Lawrence,
Defendant‐Appellant. Judge.
O R D E R
Steven Hunter fired a gun during a domestic dispute with his girlfriend. He fled the
scene in his car, but officers gave chase and caught him shortly afterward with ammunition
in his pocket. The officers also recovered the gun, which Hunter tossed from his car during
the pursuit. Hunter, a felon, was convicted after trial of possessing a firearm and
ammunition in violation of 18 U.S.C. § 922(g)(1). The district court concluded that he was
subject to the Armed Career Criminal Act, 18 U.S.C. § 924(e), based on five convictions for
robbery and one for criminal confinement, all of which arose from a bank robbery and one‐
day crime spree. See Hunter v. Clark, 906 F.2d 302, 303 (7th Cir. 1990). The district court
calculated a guidelines imprisonment range of 262 to 327 months, and sentenced Hunter
below that range to 216 months. Hunter filed a notice of appeal, but his appointed lawyer
No. 10‐2668 Page 2
asserts that the case is frivolous and moves to withdraw. See Anders v. California, 386 U.S.
738, 744 (1967). Hunter opposes counsel’s motion, see CIR. R. 51(b), but his response does not
raise any potential issues not already discussed in counsel’s facially adequate brief, see
United States v. Schuh, 289 F.3d 968, 973‐74 (7th Cir. 2002).
At trial the government presented testimony that Hunter possessed a .38‐caliber
Smith & Wesson revolver and ammunition for the gun. Hunter testified in his own defense
and did not dispute that fact. Instead he testified that he possessed the handgun because he
took it away from his girlfriend, Barbara Shelton, after she pointed the weapon at him in a
frenzy late one night. But Shelton testified that it was Hunter who pulled the gun on her,
beat her, and fired the gun during their dispute. Shelton testified that immediately
afterward she called 911 and Hunter took the gun and fled their apartment in his car.
Police officers testified that, after tailing Hunter through a shopping center, they
stopped and searched him. They found ammunition in his pocket. And after retracing his
route through the shopping center, they found the gun, which Hunter had thrown from his
car into the parking lot. At trial Hunter testified that initially he thought the officers had
stopped him for a traffic offense, and that he had intended to collect the gun afterward.
The grand jury returned a superseding indictment charging Hunter with two counts
of violating § 922(g), one for the ammunition and a second for the gun. The district court
denied Hunter’s pretrial motion to dismiss the indictment as multiplicitious. Counsel’s
Anders submission evaluates whether Hunter could challenge that ruling. We agree with
counsel that a claim about the ruling would be frivolous. It is true, as counsel recognizes,
that simultaneous possession of a firearm and ammunition (or multiple units of either or
both) constitutes a single violation of § 922(g) unless the government can trace the
possession to separate courses of conduct. United States v. Ellis, 622 F.3d 784, 794 (7th Cir.
2010); United States v. Moses, 513 F.3d 727, 732 (7th Cir. 2008). The grand jury may charge a
separate count, however, for each firearm and ammunition, United States v. Buchmeier, 255
F.3d 415, 422 (7th Cir. 2001), so long as the number of convictions conforms to the evidence
at trial, United States v. Jones, 601 F.3d 1247, 1259‐60 (11th Cir. 2010); United States v. Conley,
291 F.3d 464, 470‐71 (7th Cir. 2002). In this instance the jury returned guilty verdicts on both
counts, but the district court entered a judgment on one count only because the
government’s evidence did not establish more than a single course of conduct. Merging the
two counts into a single conviction, rather than dismissing the indictment, was the
appropriate response to Hunter’s motion to dismiss. See United States v. Parker, 508 F.3d 434,
440‐41 (7th Cir. 2007).
Counsel next evaluates whether Hunter could argue that the district court erred in
allowing the prosecutor to cross‐examine him about his Indiana convictions for robbery and
No. 10‐2668 Page 3
criminal confinement, all felonies. Hunter contends that he was prejudiced by the
prosecutor’s questioning. Before trial, however, Hunter’s lawyer had agreed that the
government would be permitted to use the prior convictions to impeach Hunter if he took
the stand. See FED. R. EVID. 609(a). And in line with that understanding, the prosecutor
asked Hunter about those convictions and his sentence during cross‐examination.
Moreover, on direct examination Hunter’s lawyer already had elicited testimony from him
about the six convictions, five for robbery and one for criminal confinement, and the 120‐
year sentence he initially received. The prosecutor’s cross‐examination did not stray beyond
the bounds of Hunter’s direct testimony or Federal Rule of Evidence 609. See United States v.
Smith, 454 F.3d 707, 716 (7th Cir. 2006); United States v. Estrada, 430 F.3d 606, 615‐16 (2d Cir.
2005); United States v. Commanche, 577 F.3d 1261, 1270 (10th Cir. 2009). We thus agree with
appellate counsel that this potential issue would be frivolous.
Counsel further considers whether Hunter might contend that the district court
committed reversible error in refusing to instruct the jury on his defensive theory of
necessity. Although the district court rejected Hunter’s proposed instruction on this defense,
the court granted his request for a self‐defense instruction, essentially a justification based
on “innocent possession.” See United States v. Jackson, 598 F.3d 340, 349‐50 (7th Cir. 2010).
Regarding necessity, Hunter wanted the jury to be instructed that it must acquit if it found
he reasonably believed that his criminal conduct was necessary to avoid harm more serious
than that sought to be prevented by the statute and, given the imminence of the threat, there
was no reasonable legal alternative to violating the law.
We agree that challenge to the denial of the proposed necessity instruction would be
frivolous. First the district court ultimately granted a self‐defense instruction, which
reflected Hunter’s theory of innocent possession. Rejection of an instruction incorporating
an identical defense theory, hence, did not deny Hunter a fair trial. See Jackson, 598 F.3d at
345. And as counsel notes, the defense of necessity is quite narrow. United States v. Kilgore,
591 F.3d 890, 893 (7th Cir. 2010). In cases where felons possessed firearms, the defense has
been applied only to defendants who, in the heat of a dangerous moment, disarm someone
else, thereby possessing a gun briefly in order to prevent injury. Id. Hunter, though, by his
own admission possessed the gun for a prolonged period and had multiple lawful
opportunities to dispose of it. A necessity defense, therefore, was not consistent with the
evidence, even from Hunter’s point of view. See Jackson, 598 F.3d at 350; United States v.
Hendricks, 319 F.3d 993, 1007 (7th Cir. 2003).
Counsel next assesses whether to claim that the district court erroneously sentenced
Hunter as an armed career criminal under § 924(e). The court relied on Hunter’s convictions
for robbery and criminal confinement, all of which arose from events on a single day. A
defendant qualifies as an armed career criminal under § 924(e) if he has three prior
No. 10‐2668 Page 4
convictions for “a violent felony or a serious drug offense, or both,” so long as the offenses
were “committed on occasions different from one another.” 18 U.S.C. § 924(e). In the district
court there was no disagreement that Hunter had accumulated at least three convictions for
“violent felonies.” See id.; United States v. Lewis, 405 F.3d 511, 514 (7th Cir. 2005). Instead, the
parties debated whether Hunter’s offenses had been committed on different occasions, since
all of them resulted from a single bank robbery and its aftermath. Counsel contemplates
arguing that there really was only one crime for purposes of § 924(e), but concludes that
such an argument would be frivolous because, although the crimes occurred on the same
day, Hunter actually robbed five different victims, at different times, in different locations.
Counsel references the presentence report, which states:
On January 24,1984, three males wearing face masks, brandishing a .32 caliber
handgun and two sawed‐off shotguns, entered the Indiana National Bank on
Michigan Road while a fourth male waited in a vehicle outside the bank. One
of the males forced the manager to fill a pillow case with money and then
took car keys from a customer and the assistant manager. The men forced the
assistant manager outside the bank, but he was able to flee. The men fled in a
stolen van.
A short time later, the men ran Bernard Lee off the road and forced him from
his vehicle.
One of the suspects hit Mr. Lee with one of the shotguns. The robbers tried to
force Mr. Lee into his vehicle, but he ran away. The vehicle became stuck on
the ice, so the men fled in their stolen van.
A short time later, the men passed Wilford Clark on the road, and blocked
him in and forced him out of his vehicle at gunpoint. They robbed Mr. Clark
of $50 and then forced him into the van and ordered him to drive it. The
suspects fled in his vehicle and later abandoned it.
We would conclude that the underlying crimes were not simultaneous, but instead
sequential, and that Hunter had ample time to withdraw from his crime spree before each
successive crime. See United States v. Morris, 293 F.3d 1010, 1013‐14 (7th Cir. 2002). It would,
therefore, be frivolous to contend that the violent felonies were not “committed on
occasions different from one another” for purposes of § 924(e). See United States v. Cardenas,
217 F.3d 491, 492 (7th Cir. 2000).
A more nuanced potential issue is whether, in deciding whether the offenses were
committed on different occasions, the district court erred by relying on the description of
No. 10‐2668 Page 5
the crime spree in the presentence report. At sentencing, the district court specifically asked
Hunter’s counsel whether he had any objection to the above summary of the crimes. He had
none. Instead, Hunter solely contested the legal conclusion that the acts occurred “on
different occasions,” and in resolving that question, the district court relied on the
uncontested narrative of Hunter’s robberies.
When seeking to classify a prior conviction, the sentencing judge is limited to the
terms of the charging document, the terms of a plea agreement or transcript or colloquy
between judge and defendant, or to some comparable judicial record of the information,
and generally must not consider the particular facts disclosed by the record of conviction.
See James v. United States, 550 U.S. 192, 202 (2007); Shepard v. United States, 544 U.S. 13, 17
(2005). When determining whether prior offenses were committed on “different occasions”
under § 924(e), though, courts may rely on undisputed sections of the presentence report.
See United States v. Harris, 447 F.3d 1300, 1305‐06 (10th Cir. 2006); United States v. Thompson,
421 F.3d 278, 285 (4th Cir. 2005). Therefore, Hunter’s challenge would be frivolous. And in
any event, if challenged, we would take judicial notice of the details of the crime spree
reflected in prior judicial decisions, as James and Shepard would permit: Hunter v. Clark, 934
F.2d 856, 858 (7th Cir. 1991); Hunter v. Clark, 906 F.2d 302, 303 (7th Cir. 1990); Hunter v. State,
656 N.E.2d 875, 876 (Ind. App. 1995).
The last two potential issues identified by counsel require little discussion. Counsel
observes that Hunter wants to raise a challenge under Batson v. Kentucky, 476 U.S. 79 (1986),
since there were no African Americans on his jury. That challenge would be frivolous
because the government did not exercise a peremptory challenge to exclude any potential
Black jurors. See Aki‐Khuam v. Davis, 339 F.3d 521, 526 (7th Cir. 2003). And although Hunter
wishes to contest the performance of his trial lawyer, appellate counsel is correct that
Hunter would be better served by asserting that claim in a collateral proceeding under 28
U.S.C. § 2255. See United States v. Williams, 272 F.3d 845, 854 (7th Cir. 2001).
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.