In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1277
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
M ARCUS K ILGORE,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 08-CR-38-C-01—Barbara B. Crabb, Chief Judge.
A RGUED S EPTEMBER 16, 2009—D ECIDED JANUARY 8, 2010
Before C UDAHY, W OOD , and SYKES, Circuit Judges.
C UDAHY, Circuit Judge. In 2008, Marcus Kilgore pleaded
guilty to a one-count indictment of unlawfully possessing
a firearm and ammunition as a convicted felon. See 18
U.S.C. § 922(g)(1). Before the presentence investigation
report was filed, Kilgore moved to withdraw his guilty
plea, claiming that his possession of the loaded firearm
was legally justified. The district court denied his motion
and subsequently sentenced him to 92 months in prison,
2 No. 09-1277
which was at the bottom of the relevant Advisory Guide-
lines range. On appeal, Kilgore contends that the dis-
trict court erred in finding that he could not present a
justification defense had he gone to trial. He also
contends that the district court abused its discretion in
denying his request for a downward variance under
18 U.S.C. § 3553(a). Because the undisputed facts
preclude the applicability of a justification defense, and
because the sentence imposed by the district court was
reasonable, we affirm.
I. BACKGROUND
In the early hours of January 30, 2008, Marcus Kilgore
(“Kilgore”) and his brother, Prentice, drove to meet
Edward Newsom in Madison, Wisconsin to purchase
Ecstasy. After Newsom and his colleague, Danny Turner,
arrived, Kilgore’s brother approached them and got into
their vehicle. Something clearly went awry. A struggle
ensued, which ended with Prentice shooting Turner as
the latter began to run away. Prentice got back into his
brother’s car and, with Kilgore driving, they made
their escape.
The two brothers drove to the apartment of Jessie
Pennington, which was also in Madison. Pennington, who
is the mother of Prentice’s children, had several people
in the apartment when Kilgore and Prentice arrived. This
group included minor children. Prentice, who was
drunk, sat down on the sofa and, in the process, managed
to shoot himself in the leg. Kilgore took the gun from his
injured brother, observed that two empty shell casings
No. 09-1277 3
resided in the revolver’s cylinder and emptied the gun,
except for two live rounds. He then kept the gun within
his sight or in his actual possession for at least an hour.
During that time, he attempted to persuade Prentice to
go to the hospital and made a number of calls to people
with medical experience who might be able to help.
Eventually, Prentice relented and agreed to go to the
hospital. Kilgore picked up the gun before leaving and
carried it outside the apartment. What happened next
is the subject of some dispute. Kilgore contends that he
gave the revolver to Pennington, who threw it in a
snowbank. According to Pennington, Kilgore threw the
gun away. Under both accounts, though, Kilgore carried
the revolver out of the apartment and the gun ended up
in the snowbank, where it was discovered a few hours
later by a citizen who called the police.
On March 12, 2008, Kilgore was charged in a one-count
indictment with unlawfully possessing a firearm and
ammunition as a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1). On June 12, 2008, Kilgore reluctantly entered
a guilty plea, pursuant to a written plea agreement. On
July 17, 2008, before the presentence investigation
report was filed, Kilgore filed a motion to withdraw his
guilty plea, claiming that his possession of the gun
was legally justified.
On December 17, 2008, the district court denied
Kilgore’s motion, finding that his decision to plead guilty
rather than go to trial on a justification defense was
objectively reasonable. Given that Kilgore failed to avail
himself of a number of options that did not require his
4 No. 09-1277
possessing the gun, the court found that the facts
would not allow such an affirmative defense.
On January 9, 2009, Kilgore was sentenced to 92 months’
imprisonment, which was at the bottom of the relevant
Guidelines range. The district court declined Kilgore’s
request for a downward adjustment under 18 U.S.C.
§ 3553(a). In doing so, it rejected Kilgore’s contention
that he was acting out of concern for other people. Rather,
the court believed that his actions were designed to
prevent law enforcement from learning of the gun and
the apparently criminal ends to which it had been em-
ployed.
II. DISCUSSION
Kilgore filed a timely appeal in which he makes two
arguments. He first contends that the district court erred
in finding that he was not entitled to raise a justification
defense at trial. He also maintains that the district
court abused its discretion in denying him a downward
adjustment for his purportedly praiseworthy behavior.
We review the legal sufficiency of a proffered defense
de novo because it entails a question of law rather than
fact. See United States v. Sahakian, 453 F.3d 905, 909 (7th Cir.
2006); United States v. Simmons, 215 F.3d 737, 741 (7th Cir.
2000). However, we review factual determinations relied
upon by the district court for clear error. See Simmons,
215 F.3d at 741.
We review sentences for reasonableness in light of the
statutory factors provided by 18 U.S.C. § 3553(a). See United
No. 09-1277 5
States v. Padilla, 520 F.3d 766, 771 (7th Cir. 2008). We
presume that a sentence within a correctly calculated
Guidelines range is reasonable. See United States v.
Panaigua-Verdugo, 537 F.3d 722, 727 (7th Cir. 2008). In
determining a reasonable sentence, the district court
need not comprehensively discuss all of the 18 U.S.C.
§ 3553(a) factors, but must explain its decision and
address nonfrivolous sentencing arguments. See United
States v. Villegas-Miranda, 579 F.3d 798, 801 (7th Cir. 2009);
United States v. Cunningham, 429 F.3d 673, 679 (7th Cir.
2005).
A. Kilgore Cannot Avail of a Justification Defense
The defense of necessity in a criminal case is a narrow
one. To prevail, a defendant must ordinarily establish
that he faced an imminent threat of serious bodily injury
or death and that he had no reasonable legal alternatives
to avoid that threat. Sahakian, 453 F.3d at 909. As applied
to the case of a felon in possession of a firearm, this
Court has clarified that, “[i]n practice, the defense has
only [been] applied to the individual who in the heat of
a dangerous moment disarms someone else, thereby
possessing a gun briefly in order to prevent injury to
himself.” United States v. Mahalick, 498 F.3d 475, 479 (7th
Cir. 2007); see also United States v. Perez, 86 F.3d 735, 737
(7th Cir. 1996) (“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).”).
6 No. 09-1277
Were Kilgore’s possession of the gun limited to a mo-
mentary instance in which he dispossessed his drunk and
injured brother of the weapon, the defense might have
been available. But his possession was not so limited.
It is undisputed that Kilgore, after removing the re-
volver’s shell casings, maintained the gun in his sight or
possession for at least an hour and then took it outside
the apartment. Kilgore cannot avail of the defense of
necessity in these circumstances. Mahalick emphasized
that “the defense does not apply if there is a way to
avoid committing the felony of possession by a felon.” Id.
at 479; see also Perez, 86 F.3d at 737 (observing that a
“defendant may not resort to criminal activity to protect
himself or another if he has a legal means of averting the
harm”). The district court aptly outlined a range of legal
avenues that were open to Kilgore. United States v. Kilgore,
2008 WL 5272528, at *2 (W.D. Wis. Dec. 17, 2008). After
taking the gun off his brother, he could have called the
police. He could have given the firearm to a nonfelon
adult. He could have put the revolver somewhere in the
apartment that the children could not have reached. Id.
Having eschewed these options, Kilgore cannot appeal
to the defense of necessity.
In his brief, Kilgore portrays a chaotic scene in the
apartment. He asserts that the ensuing maelstrom
amounted to an ongoing emergency that justified his
extended possession of the gun. He further submits that,
because of his actions, no one else was hurt in what was
potentially a dangerous situation. Finally, pointing us to
the bedlam, he contends that his decisions cannot be
No. 09-1277 7
judged from the perspective of one making a calm
and reflective judgment.
One might well imagine the scene to be chaotic after an
accidental shooting in an apartment filled with children.
But even if Kilgore’s portrayal is accurate, he does not
direct us to any case law that suggests that the defense
of necessity is available, notwithstanding the lack of
objective justification, when a defendant makes a
mistaken good-faith judgment in the midst of a highly
charged situation. Putting aside our skepticism over
Kilgore’s purported good faith in possessing the gun, the
relevant case law makes clear that such subjectivity is
largely irrelevant. See United States v. Deleveaux, 205
F.3d 1292, 1298 (11th Cir.), cert. denied, 530 U.S. 1264 (2000)
(holding that under 18 U.S.C. § 922(g)(1) “[t]he prosecu-
tion need show only that the defendant consciously
possessed what he knew to be a firearm”).1
Mahalick provides that the necessity defense is a rare
one and is unavailable in a setting where no ongoing
emergency exists or where legal alternatives to
1
The only conceivable exception relates to “innocent posses-
sion,” which is a defense recognized by the D.C. Circuit, though
not by other circuits. Compare United States v. Mason, 233 F.3d
619, 623-24 (D.C. Cir. 2000) with, e.g., United States v. Johnson, 459
F.3d 990, 995-98 (9th Cir. 2006). Although we have discussed
its application in dicta, we have not previously recognized
this defense. See United States v. Hendricks, 319 F.3d 993, 1007-08
(7th Cir. 2003) (citing Mason, 233 F.3d at 623-24). Even if we
were now to adopt such an innocent possession defense,
however, it would be inapplicable on these facts.
8 No. 09-1277
possession are available. 498 F.3d at 479. It makes no
exception for circumstances where a defendant
mistakenly believes that the law would allow her to
possess a gun. This should not be surprising, since it is
hornbook law that ignorance of the law is generally no
defense. See Cheek v. United States, 498 U.S. 192, 199 (1991);
United States v. Wilson, 159 F.3d 280, 288-89 (7th Cir. 1998).
In any event, Kilgore’s assertedly noble motives were
rejected by the district court, which found that his
actions were motivated by a desire to conceal the gun,
and its use in the morning’s nefarious activities, from
the police. Kilgore, 2008 WL 5272528, at *2. We adhere to
the district court’s factual determination unless it is
clearly erroneous. Based on our review of the record, we
find no basis for questioning the court’s conclusion, let
alone finding it to be clearly erroneous.
Because black-letter law forecloses the defense of neces-
sity on the facts of the present case, the district court’s
determination to that effect was correct.
B. The Sentence Imposed by the District Court Was
Reasonable
Appealing once more to the tumultuous circumstances
attendant upon his actions, Kilgore contends that the
district court abused its discretion in declining to grant
him a downward adjustment of his sentence. He
does not claim that the district court erred in com-
puting his Guideline range. Rather, he contests the rea-
sonableness of the 92-month sentence he received, which
was at the bottom of the Guidelines range.
No. 09-1277 9
Because the sentence imposed was within the Guide-
lines range, we presume that it is reasonable. See Panaigua-
Verdugo, 537 F.3d at 727. To rebut this presumption,
Kilgore must demonstrate that the sentence is unrea-
sonable in light of 18 U.S.C. § 3553(a). See United States
v. Campos, 541 F.3d 735, 750 (7th Cir. 2008).
Kilgore argues that his sentence was unreasonable
because it did not adequately account for the chaotic
circumstances in which he was forced to act. In his view,
he should have received a below-Guidelines sentence.
The district court, however, considered and rejected
Kilgore’s argument that he acted in good faith and for
the benefit of others. It opined that Kilgore’s “actions are
far more indicative of a person whose main interest is
in preventing law enforcement from learning of the gun
and the shots fired from it than of someone interested in
protecting others.” United States v. Kilgore, 2008 WL
5272528, at *2 (W.D. Wis. Dec. 17, 2008). This assessment
strikes us as quite reasonable, particularly in light of the
morning’s events, in which the gun had been used to
shoot a person during an attempted drug purchase. This
inference is bolstered by Kilgore’s actions in emptying
the gun of the spent cartridges, but not the remaining
two bullets.
It is true that the court omitted specific reference to
the chaos described by Kilgore, other than to reject any
suggestion that he acted under coercion or duress. But
this omission, it seems to us, is based on the district
court’s disbelief of his account of events. In finding that
Kilgore’s actions were motivated by self-protection and
a desire to obstruct law enforcement, the district court
10 No. 09-1277
necessarily rejected the contention that those actions
were the result of an unthinking reaction to an emergency.
In addition to finding that Kilgore acted out of self-
interest rather than for any altruistic reason, the district
court addressed a number of factors that support the
reasonableness of the sentence imposed. It noted that
Kilgore, despite being only 23, had been in some form of
custody or under court-ordered supervision for the
majority of the previous decade and that he had six
juvenile and eight adult convictions. It observed that his
criminal behavior had become increasingly violent and
that he was a significant danger to the community. And
it expressed shock at the fact that his actions resulted in
a loaded firearm’s being left in a snowbank where any
child could have happened upon it. It thus concluded:
a sentence at the low end of the advisory guideline
range is reasonable and necessary to hold you ac-
countable for your actions, protect the community
from further criminal activity on your part, provide
you an opportunity to participate in rehabilitative
programs, and to achieve parity with the sentences
of similarly situated offenders.
In light of the district court’s reasoned decision to
impose a within-Guidelines sentence, we are reluctant to
reject it. Kilgore’s challenge is limited to the district
court’s purported failure to credit his account of the
frenzied circumstances in which he had to act. For the
reasons just explained, however, this challenge must fail.
No. 09-1277 11
III. CONCLUSION
The district court was correct in finding that Kilgore
could not avail himself of a justification defense, given
the uncontested facts that he had possession of a
loaded weapon for over an hour, failed to exhaust all legal
avenues open to him and carried the gun outside the
apartment. Moreover, the within-Guidelines sentence
imposed by the court was reasonable. The judgment of
conviction and sentence are
A FFIRMED.
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