In the
United States Court of Appeals
For the Seventh Circuit
No. 11-1941
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
D EONTAE D. R ICE,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 3:10-cr-30157-WDS-1—William D. Stiehl, Judge.
A RGUED O CTOBER 24, 2011—D ECIDED M ARCH 7, 2012
Before SYKES and T INDER, Circuit Judges, and D EG UILIO ,
District Judge.
D EG UILIO , District Judge. Deontae D. Rice was indicted
on September 22, 2010, on one count of knowingly pos-
sessing a firearm on or about May 25, 2010, while being
The Honorable Jon E. DeGuilio, Judge of the United States
District Court for the Northern District of Indiana, sitting by
designation.
2 No. 11-1941
an unlawful user of controlled substances in violation of
18 U.S.C. § 922(g)(3). Rice later pled guilty without a
plea agreement and was sentenced to 46 months’ impris-
onment. On appeal, Rice challenges the district court’s
application at sentencing of a 4-level increase under
U.S.S.G. § 2K2.1(b)(6) for using or possessing the fire-
arm in connection with another felony offense. We affirm.
I. B ACKGROUND
On the evening of May 25, 2010, Rice and his wife,
Myeara Rice, drove to the CITGO gas station in East
St. Louis, Illinois. Upon arriving at the gas station Rice
saw an acquaintance, Mario Davis. Rice approached
Davis to obtain marijuana from him, having previously
purchased marijuana from Davis numerous times. Davis
refused and spit on Rice’s face. Rice became furious and
swung at Davis who was sitting in his vehicle, but Davis
drove off. Despite his wife’s protests, Rice followed
Davis to his home because he was angry and wanted to
fight. As Rice exited his truck, Davis emerged from
his home with a firearm and fired a shot at Rice. The
bullet pierced Rice’s green Mercury Mountaineer leaving
a hole.
Rice returned to his truck, where his wife was still
waiting, and left in a rage. Rice drove erratically to his
mother’s home which was located in the same neighbor-
hood on the 800 block of North 32nd Street. Although
Rice’s wife tried to calm him, Rice angrily accused her
of working with Davis and she became frightened for
her safety. Upon arriving at his mother’s home, Rice
No. 11-1941 3
entered the home and asked his mother to give him a
firearm that he kept at the home. At first his mother
refused, but an agitated Rice was able to convince her to
give him the firearm. Rice subsequently acknowledged
that during this time he did not know whether Davis
had followed him to his mother’s home. Yet after Rice
obtained the firearm, Rice’s uncle informed him that
he had seen Davis driving his pearl-colored Lincoln on
their street.
Rice exited the home with the firearm in hand. Ac-
cording to Rice and his mother, Davis was not present
at that time. Rice walked some distance from his
mother’s home toward his truck, between twenty to
twenty-five yards, and waited outside for sometime
between three and fifteen minutes without any sign of
Davis. Finally, nearly a block away, Rice saw Davis’s
car heading in the opposite direction with Davis holding
a firearm out of the window.
At that point, there was an exchange of gunfire. Police
then responded to the 800 block of North 32nd Street to
a report of shots fired at approximately 10:05 p.m., called
in by Rice’s wife who was hiding from Rice out of fear
for her safety. When the officers approached the scene,
Special Agent Nicholas Manns with the Federal Bureau
of Investigation saw Rice standing on the west sidewalk
of North 32nd Street near his green truck with a fire-
arm in his hand. Numerous people were outside in the
residential neighborhood, including children. The officers
ordered Rice to drop the gun and he complied. Rice
was then arrested.
4 No. 11-1941
In his interview with the police, Rice could not con-
cretely say who fired first. Rice stated that he and Davis
may have fired at the same time or that Rice could
have fired first, but then Rice indicated that he thought
Davis probably fired first. Rice also stated that he
thought he was in danger when he fired his gun in the
general direction of Davis, but admitted that he shot in
the air because he did not want to kill anybody.
Police recovered from Rice a stolen semi-automatic nine-
millimeter (.9 MM) Glock pistol that had twenty-two
rounds of ammunition in the magazine and one round
of ammunition in the chamber. Police also recovered
three spent shell casings in the street on the driver’s side
of Rice’s truck, which was parked directly across from
his mother’s home. The shell casings were believed to be
from Rice’s firearm which had an extended magazine
capable of holding thirty-one rounds of ammunition.
No other shell casings were found. Rice admitted to
having sold marijuana in the recent past, and to having
smoked marijuana at the time of his arrest.
Rice was charged with being an unlawful user of con-
trolled substances in possession of a firearm and he
later pleaded guilty without entering into a plea agree-
ment. The district court accepted the guilty plea and
ordered the preparation of a presentence investigation
report. In Rice’s presentence report, the probation
officer applied the 2010 edition of the guidelines,
placed Rice’s base offense level at twenty because Rice
was a prohibited person in possession of a semiauto-
matic firearm capable of accepting a large capacity maga-
No. 11-1941 5
zine, see U.S.S.G. § 2K2.1(a)(4)(B); added two levels
because the firearm was stolen, see id. § 2K2.1(b)(4)(A);
added four levels because Rice possessed the firearm
during the commission of another felony offense, either
aggravated discharge of a firearm under 720 Ill.
Comp. Stat. 5/24-1.2(a), or reckless discharge of a fire-
arm under 720 Ill. Comp. Stat. 5/24-1.5, see U.S.S.G.
§ 2K2.1(b)(6); and, subtracted three levels for acceptance
of responsibility, see id. § 3E1.1, which resulted in a
total offense level of twenty-three. Rice’s criminal
history category of I, combined with a total offense level
of 23, yielded an advisory guidelines range of 46 to
57 months’ imprisonment.
Rice filed an objection to the presentence report
arguing that he acted in self-defense when he discharged
his weapon which negated the felony offenses of aggra-
vated or reckless discharge of the firearm under Illinois
law and made the application of the enhancement
under U.S.S.G. § 2K2.1(b)(6) improper.1 Rice argued
that Davis used deadly force against him, that he reason-
ably believed that his life was in danger, and that it was
necessary for Rice to return fire to prevent Davis from
1
Rice also objected to the base offense level arguing that he
was not aware that the firearm had a large capacity magazine;
but, he also admitted that there was no knowledge require-
ment for the guideline to apply. The district court concluded
that Rice did not have to know that the firearm was capable
of accepting a large capacity magazine, he simply had to
possess the weapon. On appeal, Rice does not contest the
district court’s ruling in this respect.
6 No. 11-1941
coming back. After evidence was submitted and argu-
ment heard, the district court found that after Davis spit
in Rice’s face and then shot at Davis, “the Defendant
went home, after some difficulty obtained a gun from
his mother and went out and in effect looking for
Mario, and from there they exchanged gunfire.” The
district court concluded that “the fact remains after the
Defendant got home, there was no immediate threat
or duress on the Defendant” and it was proper to apply
the 4-level enhancement.
Having overruled Rice’s objection, the district court
adopted the presentence report without change and
sentenced Rice to 46 months’ imprisonment and 3 years’
supervised release. Rice timely filed an appeal.
II. A NALYSIS
On appeal Rice raises one issue: that the district court
should not have applied a 4-level increase under
U.S.S.G. § 2K2.1(b)(6) for his use or possession of the
firearm “in connection with another felony offense.” Rice
concedes that his discharge of the firearm in a residential
neighborhood with kids and other individuals present
amounted to a felony under Illinois law because his
conduct satisfied the statutory elements of both ag-
gravated discharge of a firearm and reckless discharge of
a firearm, consistent with 720 Ill. Comp. Stat. 5/24-1.2(a)2
2
The crime of aggravated discharge of a firearm describes the
following conduct:
(continued...)
No. 11-1941 7
and 720 Ill. Comp. Stat. 5/24-1.5,3 respectively. Rice ar-
gues only that U.S.S.G. § 2K2.1(b)(6) should not apply
because he discharged the firearm in self-defense to ward
off Davis’s purported attack, and therefore his actions
were justified.
2
(...continued)
(a) A person commits aggravated discharge of a firearm
when he or she knowingly or intentionally:
(1) Discharges a firearm at or into a building he or she
knows or reasonably should know to be occupied and the
firearm is discharged from a place or position outside
that building;
(2) Discharges a firearm in the direction of another
person or in the direction of a vehicle he or she knows
or reasonably should know to be occupied by a person; . . . .
720 Ill. Comp. Stat. 5/24-1.2(a)(1)-(2). The statute also describes
other methods of committing the crime by “knowingly or
intentionally” discharging a firearm in the direction of cer-
tain officials (such as firemen, teachers, or paramedics) or
shooting a gun in the direction of a particular vehicle the
shooter knows to be occupied by certain officials. See id. 5/24-
1.2(a)(3)-(9). A violation of any subsection of the statute
is a felony. See id. 5/24-1.2(b).
3
The crime of reckless discharge of a firearm describes the
following conduct:
(a) A person commits reckless discharge of a firearm
by discharging a firearm in a reckless manner which
endangers the bodily safety of an individual.
720 Ill. Comp. Stat. 5/24-1.5(a). Reckless discharge of a firearm
is a Class 4 felony. See id. 5/24-1.5(c).
8 No. 11-1941
“We review the district court’s application of sentencing
guidelines de novo, but where the district court bases
the application of a sentencing guideline on factual find-
ings, we review for clear error.” United States v. Meece,
580 F.3d 616, 620 (7th Cir. 2009) (quoting United States
v. Wagner, 467 F.3d 1085, 1089 (7th Cir. 2006)). Review of
a district court’s sentencing enhancement under U.S.S.G.
§ 2K2.1(b)(6) is a mixed question of fact and law that we
review for clear error. Meece, 580 F.3d at 620-21 (internal
citations omitted). The district court’s findings are
clearly erroneous only when, “after considering all of the
evidence, the reviewing court is left with the definite
and firm conviction that a mistake has been made.”
United States v. Cruz-Rea, 626 F.3d 929, 938 (7th Cir. 2010)
(quoting United States v. Wyatt, 102 F.3d 241, 246 (7th
Cir. 1996)). Thus, when a district court chooses between
two permissible inferences from the evidence, the factual
findings cannot have been clearly erroneous. Id. Stated
otherwise, “the task on appeal is not to see whether
there is any evidence that might undercut the district
court’s finding; it is to see whether there is any evidence
in the record to support the finding.” Cruz-Rea, 626 F.3d
at 938 (quoting United States v. Wade, 114 F.3d 103, 105
(7th Cir. 1997)).
In Illinois, force that is intended or likely to cause
death or great bodily harm may be justified “only if
[the defendant] reasonably believes that such force is
necessary to prevent imminent death or great bodily
harm to himself or another or the commission of a
forcible felony.” 720 Ill. Comp. Stat. 5/7-1(a). Further,
such deadly force may be used in defense of a dwelling
No. 11-1941 9
when entry is made or attempted in a violent, riotous,
or tumultuous manner, and the defendant rea-
sonably believes that the force is necessary to prevent
an assault upon himself or another then in the
dwelling or the commission of a felony in the dwelling.
See id. 5/7-2(a).
To establish the affirmative defense of self-defense,
the defendant must provide evidence supporting each of
the following elements: (1) force had been threatened
against the defendant; (2) the defendant was not the
aggressor; (3) the danger of harm was imminent; (4) the
force threatened was unlawful; (5) the defendant
actually believed that the danger existed, that the use of
force was necessary to avert the danger, and that the
kind and amount of force actually used was necessary;
and (6) the defendant’s beliefs were reasonable. See
United States ex rel. Bell v. Pierson, 267 F.3d 544, 552 (7th
Cir. 2001) (citing People v. Morgan, 719 N.E.2d 681, 700 (Ill.
1999)); People v. Garcia, 942 N.E.2d 700, 708-09 (Ill. App. Ct.
2011). The government may then defeat the claim by
proving beyond a reasonable doubt that one of the ele-
ments of self-defense is not met. See Pierson, 267 F.3d at
552 (citing People v. Peterson, 652 N.E.2d 1252, 1261 (Ill.
App. Ct. 1995)).
A defendant’s use of force cannot be justified by self-
defense if he was the initial aggressor. Morgan, 719
N.E.2d at 700. Defense counsel conceded at oral argu-
ment that Rice was the aggressor when he followed
Davis home from the gas station which led to
Davis’s firing a shot at Rice. But Rice contends that the
10 No. 11-1941
confrontation escalated into a separate and distinct en-
counter when Davis followed him home, presumably
to harm him. At sentencing the district court disagreed
and concluded that Rice “went out and in effect looking
for Mario.”
The clear error standard of review on this appeal
is decisive. We believe the evidence establishes a permis-
sible inference that Rice was the aggressor and initiated
the confrontation. After he fled Davis’s home, Rice
went looking for and retrieved a gun without knowing
whether Davis had in fact followed him. Only after Rice
armed himself in preparation to be the aggressor did
he learn that Davis had been spotted in the neighbor-
hood. Moreover, when Rice walked out of the home he
did not see Davis and there was no gunfire. Instead,
Rice walked almost sixty feet from the home and
waited outside for no less than three minutes before he
eventually spotted Davis some distance away in a car
with a firearm hanging out of the window. These facts
unequivocally established that Rice left his mother’s
home with gun in hand looking for Davis. Rice was the
aggressor here—creating the confrontation rather than
unavoidably responding to it.
But Rice contends it was at the precise moment that
he saw Davis with a firearm which constitutes the im-
minent danger of harm and justified his discharge of the
firearm. Even assuming Rice saw Davis in the dark
armed with a gun, Davis was heading away from Rice
and at least a block away. These uncontested facts
suggest that Davis did not pose a threat, let alone an
No. 11-1941 11
imminent threat, to Rice or anyone at his mother’s home.
See Garcia, 942 N.E.2d at 708-09 (“[F]or self-defense to be
justified, it must appear that the aggressor is capable of
inflicting serious bodily harm [even] without the use of a
deadly weapon, and is intending to do so.” (quoting People
v. Hawkins, 696 N.E.2d 16 (Ill. App. Ct. 1998))). In fact,
Rice acknowledged that it was possible that he may
have fired the first shot. Moreover, the shell casings
recovered at the scene indicated that Rice fired three
times, while no shell casings were recovered from the
location where Davis allegedly fired shots. The evidence
allows a permissible inference to be drawn that Rice was
in fact looking for the opportunity to shoot Davis, and
that Rice did not fire his gun in self-defense but rather
as the aggressor.
Given that Rice was shot at by Davis earlier that
same evening, in an incident that one might conclude
Rice also initiated, we acknowledge it is possible that
Rice actually believed that Davis would eventually
return to continue the encounter. However, Rice’s
walking around armed for several minutes waiting for
Davis to appear hardly suggests that Rice reasonably
feared for his imminent safety. See People v. Jeffries, 646
N.E.2d 587, 598 (Ill. 1995) (the defendant must actually
and subjectively believe that a danger existed that
required the use of the force applied, and his subjective
belief must be objectively reasonable) (citations omitted).
Instead, there was evidence that Rice was enraged (as
evidenced by his wife’s fear of him), was using drugs, and
simply wanted to retaliate against Davis for refusing to
give him drugs and for spitting in his face. These facts
12 No. 11-1941
support the district court’s conclusion that Rice went
out looking for Davis, and clearly the right of self-defense
does not justify an act of revenge or retaliation. See
People v. Jennings, 644 N.E.2d 1199, 1206 (Ill. App. Ct. 1994)
(citing People v. Everette, 565 N.E.2d 1295, 1301 (Ill. 1990));
People v. Nunn, 541 N.E.2d 182, 193 (Ill. App. Ct. 1989)
(“[I]f one responds with such excessive force that one is
no longer acting in self-defense but in retaliation, such
excessive use of force renders one the protagonist.”)
(citations omitted). When Rice fired his gun in a
residential neighborhood with children and others
present, Davis was located at least a block away and
was driving in the opposite direction from Rice and his
mother’s home. Any danger posed by the armed Davis
was not imminent and did not justify Rice’s shooting
“cover” shots in the air in the direction of Davis. Given
the surrounding facts and circumstances, Rice never
needed to use a deadly weapon to avert imminent
danger after he obtained the firearm from his mother.
Any belief to the contrary, even if genuine, was not a
reasonable one.
Rice’s version of the events does not leave us with
the definite and firm conviction that a mistake has been
made. Rather, the record amply supports the district
court’s finding that Rice was the aggressor who went
looking for Davis, and its conclusion that Rice did not
act in self-defense under Illinois law when he committed
the crimes of aggravated and reckless discharge of a
firearm. Because we find no error in the district court’s
calculation of the sentencing guidelines, we affirm the
sentence imposed by that court.
No. 11-1941 13
III. C ONCLUSION
For the foregoing reasons, Rice’s sentence is A FFIRMED.
3-7-12