`
`IN THE UNITED STATES COURT OF APPEALS
`
` FOR THE ELEVENTH CIRCUIT
` ________________________
`
` No. 11-12496
`Non-Argument Calendar
` ________________________
`
` FILED
`U.S. COURT OF APPEALS
`ELEVENTH CIRCUIT
` NOVEMBER 16, 2011
`JOHN LEY
`CLERK
`
` D.C. Docket No. 1:10-cr-00174-WSD-1
`
`UNITED STATES OF AMERICA,
`
`llllllllllllllllllllllllllllllllllllllll
`
` Plaintiff-Appellee,
`
`PETER ASHU,
`
`versus
`
`llllllllllllllllllllllllllllllllllllllll
`
` Defendant-Appellant.
`
`________________________
`
` Appeal from the United States District Court
` for the Northern District of Georgia
` ________________________
`
`(November 16, 2011)
`
`Before BARKETT, MARCUS and BLACK, Circuit Judges.
`
`PER CURIAM:
`
`
`
`Peter Ashu appeals his misdemeanor conviction for forcibly resisting
`
`federal Immigration and Customs Enforcement agents engaged in their official
`
`duties in violation of 18 U.S.C. § 111(a). At his trial before a magistrate judge,
`
`Ashu, a citizen of Cameroon, offered necessity as an affirmative defense. The
`
`magistrate, assuming the availability of the defense, concluded Ashu could not
`
`prove the elements of necessity and found him guilty. Ashu appealed to the
`
`district court, which upheld the conviction. In this appeal, Ashu argues the district
`
`court erred in finding he did not establish the elements of the necessity defense.
`
`After review, we affirm.1
`
`To prevail on a necessity defense, a defendant must establish by a
`
`preponderance of the evidence (1) he was under a present, imminent, and
`
`impending threat of death or serious bodily injury, (2) he did not recklessly or
`
`negligently place himself in a situation where he would be forced to engage in
`
`criminal conduct, (3) he had no reasonable, legal alternative to violating the law,
`
`and (4) his criminal conduct bore a direct causal relationship to avoiding the
`
`threatened harm. United States v. Deleveaux, 205 F.3d 1292, 1297 (11th Cir.
`
` We review de novo a district court's determination whether a defendant has proffered
`1
`sufficient evidence to permit the defense of necessity. See United States v. Dicks, 338 F.3d 1256,
`1257 (11th Cir. 2003).
`
`2
`
`
`
`2000). Proving imminent danger “requires nothing less than an immediate
`
`emergency.” United States v. Rice, 214 F.3d 1295, 1297 (11th Cir. 2000).
`
`Assuming, without deciding, necessity was a defense available for this
`
`offense, Ashu did not present sufficient evidence to prevail. He did not offer
`
`adequate evidence showing he would be in imminent danger on the day of removal
`
`or immediately upon his arrival in Cameroon. See Deleveaux, 205 F.3d at 1297.
`
`In fact, Ashu testified he would feel safe in certain parts of Cameroon. Ashu
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`further claimed his eye injury would worsen considerably because of lack of
`
`health care in Cameroon, but he failed to establish his injury presented an
`
`immediate emergency. See Rice, 214 F.3d at 1297. In addition, Ashu had legal
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`alternatives available to him—he could have petitioned this Court for review of
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`any of the adverse decisions in his immigration proceedings rather than forcibly
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`resist his removal. See Deleveaux, 205 F.3d at 1297.
`
`AFFIRMED.
`
`3
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