United States v. Tracy A. Perry, 223 F.3d 431 (7th Cir. 2000). · Go Syfert
United States v. Tracy A. Perry, 223 F.3d 431 (7th Cir. 2000). Cases Citing This Book View Copy Cite
G Cite
cited 2× by 2 distinct cases, last quoted 2001 · …to explain the officer's actions. at p. 433 ⚠ not in text
30 citation events (23 in the last 25 years) across 2 distinct courts.
Strongest positive: United States v. Hamza Dridi (ca7, 2020-03-13)
Treatment trajectory · 2000 → 2026 · click a year to view as-of
2000 2013 2026
Top citers, strongest first. 18 distinct citers. How cited ↗
cited Cited as authority (rule) United States v. Hamza Dridi
7th Cir. · 2020 · confidence medium
United States v. Perry, 223 F.3d 431, 433 (7th Cir. 2000).
cited Cited as authority (rule) United States v. Hamza Dridi
7th Cir. · 2020 · confidence medium
United States v. Perry, 223 F.3d 431, 433 (7th Cir. 2000).
cited Cited as authority (rule) United States v. Hamza Dridi
7th Cir. · 2020 · confidence medium
United States v. Perry, 223 F.3d 431, 433 (7th Cir. 2000).
discussed Cited as authority (rule) United States v. Jevon Jenkins
7th Cir. · 2014 · confidence medium
Jaimes-Jaimes, 406 F.3d at 848-49 ; United States v. Sumner, 265 F.3d 532, 539 (7th Cir.2001); United States v. Cooper, 243 F.3d 411, 416 (7th Cir.2001); United States v. Perry, 223 F.3d 431, 433 (7th Cir.2000).
discussed Cited as authority (rule) United States v. Errick Hawkins
7th Cir. · 2009 · confidence medium
Because Hawkins did not object to the enhancement during sentencing, we would review this question for plain error, see United States v. Perry, 223 F.3d 431, 433 (7th Cir 2000), and we agree that any such challenge would be frivolous.
discussed Cited as authority (rule) United States v. Hawkins
7th Cir. · 2009 · confidence medium
Because Hawkins did not object to the enhancement during sentencing, we would review this question for plain error, see United States v. Perry, 223 F.3d 431, 433 (7th Cir.2000), and we agree that any such challenge would be frivolous.
discussed Cited as authority (rule) United States v. Hawkins
7th Cir. · 2009 · confidence medium
Because Hawkins did not object to the enhancement during sentencing, we would review this question for plain error, see United States v. Perry, 223 F.3d 431, 433 (7th Cir.2000), and we agree that any such challenge would be frivolous.
cited Cited as authority (rule) United States v. Rosales
N.D. Ill. · 2009 · confidence medium
See also United States v. Johnson, 223 F.3d 665, 667 (7th Cir.2000); United States v. Perry, 223 F.3d 431, 433 (7th Cir.2000).
discussed Cited as authority (rule) United States v. Jaimes-Jaimes, Rene
7th Cir. · 2005 · confidence medium
Waiver principles should be construed liberally in favor of the defendant, United States v. Sumner, 265 F.3d 532, 539 (7th Cir. 2001); Cooper, 243 F.3d at 416 ; United States v. Perry, 223 F.3d 431, 433 (7th Cir. 2000), and there is no- thing in the record before us to suggest that Jaimes had any idea that the 16-level increase might be erroneous.
cited Cited as authority (rule) United States v. Yudit Jacques
7th Cir. · 2003 · confidence medium
We have often stated that whereas “waiver is accomplished by intent, forfeiture comes about through neglect.” Staples, 202 F.3d at 995 ; United States v. Perry, 223 F.3d 431, 433 (7th Cir.2000).
cited Cited as authority (rule) United States v. Jacques, Yudit
7th Cir. · 2003 · confidence medium
We have often stated that whereas “waiver is accomplished by intent, forfeiture comes about through neglect.” Staples, 202 F.3d at 995 ; United States v. Perry, 223 F.3d 431, 433 (7th Cir. 2000).
discussed Cited as authority (rule) United States v. Flemister
7th Cir. · 2001 · confidence medium
There is no evidence on the record before this court that Flemister intentionally wished to relinquish his right to raise Apprendi claims on appeal, and because we construe waiver principles liberally in favor of the defendant, see United States v. Perry, 223 F.3d 431, 433 (7th Cir.2000), we conclude that Flemister’s lapse was mere forfeiture and should be reviewed for plain error.
discussed Cited as authority (rule) United States v. Cooper, Brian W.
7th Cir. · 2001 · confidence medium
Noting that we must construe waiver principles liberally in Cooper’s favor, see United States v. Perry, 223 F.3d 431, 433 (7th Cir. 2000), Cooper argues that we must find that he merely forfeited an objection to the admission of (or reference to) the tip’s substance.
discussed Cited as authority (rule) United States v. Brian W. Cooper
7th Cir. · 2001 · confidence medium
Noting that we must construe waiver principles liberally in Cooper’s favor, see United States v. Perry, 223 F.3d 431, 433 (7th Cir.2000), Cooper argues that we must find that he merely forfeited an objection to the admission of (or reference to) the tip’s substance.
discussed Cited as authority (rule) United States v. Osmund Clarke (2×) also: Cited "see"
7th Cir. · 2000 · confidence medium
See United States v. Johnson, 223 F.3d 665, 667 (7th Cir.2000) (Waiver “is canonically defined as an intentional relinquishment of a right”; forfeiture “is where the right is taken away from its holder as a penalty for failure to assert it in a clear and timely manner.”); United States v. Perry, 223 F.3d 431, 433 (7th Cir.2000) (“Waiver is the intentional relinquishment of a known right.
examined Cited as authority (rule) United States v. Clarke, Osmund (3×) also: Cited "see"
7th Cir. · 2000 · confidence medium
See United States v. Johnson, 2000 WL 1060596, at *1 (7th Cir. Aug. 3) (Waiver "is canonically defined as an intentional relinquishment of a right"; forfeiture "is where the right is taken away from its holder as a penalty for failure to assert it in a clear and timely manner."); United States v. Perry, 2000 WL 1056284, at *2 (7th Cir. Aug. 1) ("Waiver is the intentional relinquishment of a known right.
cited Cited "see, e.g." United States v. Seward, Laurence
7th Cir. · 2001 · signal: see, e.g. · confidence medium
See, e.g., United States v. Perry, 223 F.3d 431, 433 (7th Cir. 2000).
cited Cited "see, e.g." United States v. Laurence Seward
7th Cir. · 2001 · signal: see, e.g. · confidence medium
See, e.g., United States v. Perry, 223 F.3d 431, 433 (7th Cir.2000).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Tracy A. PERRY, Defendant-Appellant
99-4249.
Court of Appeals for the Seventh Circuit.
Aug 1, 2000.
223 F.3d 431
Winfield D. Ong (argued), Melinda Haag, Office of the U.S. Attorney, for plaintiff-appellee., James C. McKinley (argued), Indiana Federal Community Defenders, Inc., Indianapolis, IN, for defendant-appellant.
Flaum, Ripple, Williams.
Cited by 20 opinions  |  Published
FLAUM, Chief Judge.

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

I. BACKGROUND

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.”

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 sheriffs deputy happened to be in the area. He stopped Perry near the complex entrance and found the gun in Perry’s duffle bag.

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. § 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.

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 waving the gun at the other man during their argument. The district court found[*433] 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

Perry argues that the district court erred when it enhanced his sentence under U.S.S.G. § 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 waving 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.

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.

Waiver is the intentional relinquishment of a known right. See United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (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, 113 S.Ct. 1770; 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, 113 S.Ct. 1770; Staples, 202 F.3d at 995.

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 ease, 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, 58 S.Ct. 1019, 82 L.Ed. 1461 (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.

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, 113 S.Ct. 1770 (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, 113 S.Ct. 1770. In this case, the district court examined two versions of the[*434] 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

For the foregoing reasons, Perry’s sentence is AFFIRMED.