*Pursuant to 5TH CIR. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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United States Court of Appeals

Fifth Circuit

FILED

December 8, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-11389

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

WANDA LAFAYE LEE

Defendant - Appellant

Appeal from the United States District Court 

for the Northern District of Texas, Fort Worth

No. 4:05-CR-16-ALL

Before KING, BENAVIDES, and CLEMENT, Circuit Judges.

PER CURIAM:*

Defendant-appellant Wanda Lafaye Lee was convicted of

possession of a firearm by a convicted felon pursuant to 18

U.S.C. § 922(g)(1). She now appeals her conviction, arguing

that the district court erred by: (1) not allowing her to present

her justification defense to the jury and (2) considering hearsay

statements at sentencing without allowing her to confront those
1 As noted in several cases, “[t]he proper name of this

defense has . . . not been established.” United States v.

Harper, 802 F.2d 115, 117 n.1 (5th Cir. 1986). 

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witnesses. 

I. JUSTIFICATION DEFENSE

A. Standard of Review

The legal sufficiency of a proffered defense is a question

of law and is reviewed de novo. United States v. Tokash, 282

F.3d 962, 967 (7th Cir. 2002). Before an affirmative defense,

such as duress, may be presented to the jury, a defendant must

present evidence of each element of the defense. United States

v. Posada-Rios, 158 F.3d 832, 873 (5th Cir. 1998) (citing United

States v. Bailey, 444 U.S. 394, 415 (1980). 

B. Analysis

Lee contends that she submitted evidence supporting each

element of a justification defense and that the district court

violated her Fifth Amendment right to a jury trial by denying her

the opportunity to present that defense to the jury. On

sufficient facts, the common-law defenses of duress and necessity

can justify a violation of a firearms possession statute.1 See

United States v. Panter, 688 F.2d 268, 272 (5th Cir. 1982). That

defense arises “where a convicted felon, reacting out of

reasonable fear for the life or safety of himself, in the actual,

physical course of a conflict that he did not provoke, takes

temporary possession of a firearm for the purpose or in the
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course of defending himself.” Id. The defense protects a

defendant “only for possession during the time he is endangered. 

Possession either before the danger or for any significant period

after it remains a violation.” Id.

To present a justification defense to a charge of § 922(g),

a defendant must show that: (1) he was under an unlawful and

“present, imminent, and impending” threat of death or serious

bodily injury; (2) that he “had not ‘recklessly or negligently

placed himself in a situation in which it was probable that he

would be [forced to choose the criminal conduct]’”; (3) he “had

no ‘reasonable, legal alternative to violating the law’ . . .;

and (4) that a direct causal relationship may be reasonably

anticipated between the [criminal] action taken and the avoidance

of the [threatened] harm.” United States v. Gant, 691 F.2d 1159,

1161 (5th Cir. 1982) (internal quotations omitted). 

A justification defense arises only when “there is a real

emergency leaving no time to pursue any legal alternative.” 

Posada-Rios, 158 F.3d at 874. Generalized testimony that a

defendant was “afraid to stay at home and that she feared for her

family’s safety” was not sufficient evidence of an imminent

threat. Id. at 875. Fear of future harm also does not satisfy

the present, imminent, and impending threat requirement, United

States v. Harvey, 897 F.2d 1300, 1305 (5th Cir. 1990), overruled

in part on other grounds by United States v. Lambert, 984 F.2d

658 (5th Cir. 1993), even when the defendant has previously been
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shot. See United States v. Crittendon, 883 F.2d 326, 329 (4th

Cir. 1989) (holding that although a defendant purchased a gun

because he had been shot before, he was not entitled to a

justification defense because the threat was not imminent). The

defendant must produce evidence that he “was in danger of

imminent bodily harm at the moment he purchased and possessed the

gun.” United States v. Harper, 802 F.2d 115, 118 (5th Cir. 1986)

(emphasis added). 

The imminence of the threat goes hand in hand with the

availability of reasonable, legal alternatives. A reasonable,

legal alternative is “a chance both to refuse to do the criminal

act and also to avoid the threatened harm.” Gant, 691 F.2d at

1163. To establish no alternative was available, a defendant

must prove “that he had actually tried the alternative or had no

time to try it, or that a history of futile attempts revealed the

illusionary benefit of the alternative.” Posada-Rios, 158 F.3d

at 874 (quoting Harper, 802 F.2d at 118). These alternatives

include notifying the police of the threats, taking other steps

to prevent robbery, and leaving the purchase and possession of a

weapon to a companion. Harper, 802 F.2d at 118. Furthermore,

the no-reasonable-alternative inquiry is an objective one. The

defendant’s subjective belief that no legal alternatives exist is

not determinative. Posada-Rios, 158 F.3d at 874. 

Lee’s proffered evidence did not establish any imminent

threat of death or serious bodily injury. Lee purchased the
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firearm two days after her altercation with Trina Hart and Eddie

Dickson. Her testimony indicates that she did not have contact

with Hart and Dickson after the incident and that other threats

were relayed by acquaintances. Those second-hand reports

establish a future threat rather than an imminent one. See

Harvey, 897 F.2d at 1305 (holding no imminent threat existed even

though rival religious groups had engaged in shoot-outs and the

defendant was threatened by members of a rival faction who wanted

him to get out of town). 

The proffered evidence also does not support Lee’s

contention that she had no other reasonable alternative to

firearm possession or that the threats were so imminent she had

no opportunity to call the police. Lee would have us believe

that she exhausted all reasonable alternatives by going to the

police, but that is not the case. Even though one officer may

not have responded to her satisfaction, this is not a situation

where repetitive attempts to contact police were futile. 

Additionally, Lee did not report the alleged threats or the

suspicious vehicle driving by her home. 

Because Lee did not satisfy her burden to produce evidence

on each element of the justification defense, the district court

did not err by not presenting the defense to the jury. 

II. CONFRONTATION RIGHTS AT SENTENCING

A. Standard of Review
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We review allegations of Confrontation Clause violations de

novo. See United States v. Bell, 367 F.3d 452, 465 (5th Cir.

2004). Any errors are subject to harmless error analysis. See

id.

B. Analysis

The district court sentenced Lee to eighty-five months

imprisonment and a three-year term of supervised release. Lee

argues that the district court erred by considering the out-ofcourt statements of Hart and Dickson without allowing Lee the

opportunity to confront those witnesses. 

We have specifically held that the constitutional right to

confrontation of witnesses does not apply during non-capital

sentencing proceedings. United States v. Navarro, 169 F.3d 228,

236 (5th Cir. 1999). “[A] defendant’s confrontation rights at a

sentencing hearing are severely restricted.” United States v.

Rodriguez, 897 F.2d 1324, 1328 (5th Cir. 1990). Because the

sentencing court “‘may consider any information which has

sufficient indicia of reliability to support its probable

accuracy,’” the district court may rely upon hearsay that was not

admissible during the guilt/innocence stage of a trial. United

States v. Ramirez, 271 F.3d 611, 612-13 (5th Cir. 2001) (quoting

United States v. Vital, 68 F.3d 114, 120 (5th Cir. 1995)). 

Lee argues that we should reevaluate our stance in light of

the Supreme Court’s decision in United States v. Mitchell, 526
2 Nor do we hold, as Lee also contends, that due process

requires that Lee be given the right to confront and crossexamine witnesses during sentencing because that right is

extended to parolees/probationers at revocation proceedings. See

Morrissey v. Brewer, 408 U.S. 471, 489 (1972); Gagnon v.

Scarpelli, 411 U.S. 778, 782 (1973). That requirement has not

been extended to sentencing hearings. In fact, earlier Supreme

Court precedent states that due process does not require that a

“sentencing judge . . . be denied an opportunity to obtain

pertinent information” as a result of “rigid adherence to

restrictive rules of evidence properly applicable to the trial.” 

Williams v. New York, 337 U.S. 241, 247 (1949). 

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U.S. 314 (1999). However, we see nothing in that opinion which

suggests our prior holdings in Navarro and Ramirez are

incorrect.2 Thus, the district court did not err in considering

Hart’s and Dickson’s statements without allowing Lee the

opportunity to confront those witnesses. 

III. CONCLUSION

Lee’s conviction and the sentence imposed are AFFIRMED.