Appeal from the United States District Court for the Eastern District of Wisconsin. No. 06 CR 159-J.P. Stadtmueller, Judge.
The opinion of the court was delivered by: Manion, Circuit Judge.
Before BAUER, MANION, and ROVNER, Circuit Judges.
After pleading guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), Raymond Harvey was sentenced to 72 months' imprisonment. He does not dispute that this is within the applicable guidelines range of 70 to 87 months' imprisonment. He argues, however, that the district court unreasonably rejected his contention that he possessed the weapon under duress and thus deserved a below-guidelines sentence under U.S.S.G. § 5K2.12. Also at issue is whether Harvey's timely notice of appeal, filed electronically, is sufficient even though the district court's local rule requires such notices to be filed on paper. We conclude that we have jurisdiction to hear the appeal because Federal Rule of Civil Procedure 5(e) allowed the notice of appeal to be filed despite the violation of the local rule. We also affirm Harvey's sentence because he did not present enough evidence of duress to render a within-guidelines sentence unreasonable.
Two confidential informants told a Milwaukee police officer that Raymond Harvey, a felon, routinely carried a firearm and had been involved in a shootout on June 20, 2006. Based on these tips, an officer searched Harvey on the morning of June 26, 2006, and found a gun in his pocket. Harvey pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).
The PSR assigned Harvey a total offense level of 21 and a criminal history category of V. These calculations, which Harvey does not dispute, yielded a guidelines range of 70 to 87 months' imprisonment. Based on his extensive criminal history and inability to learn from his mistakes, the probation officer recommended a sentence of 84 months' imprisonment, at the high end of the guidelines range.
Using pre-Booker language, Harvey moved for a downward departure pursuant to U.S.S.G. § 5K2.12. See United States v. Laufle, 433 F.3d 981, 986-87 (7th Cir. 2006). That guideline permits a court to reduce the defendant's sentence if he commits a crime because of coercion, duress, or blackmail under circumstances that do not qualify as a complete defense. U.S.S.G. § 5K2.12. Harvey alleged that he carried the gun because Vincent Edwards, Harvey's former partner in the drug trade, violently threatened Harvey and his family and made at least one attempt to kill Harvey. Harvey detailed the violence and the threats: (1) between November 2005 and early 2006, unknown actors twice discharged rounds of bullets into his house; (2) Edwards shot at him and firebombed his brother's store; and (3) in the course of cooperating with Edwards's parole officer, Harvey heard recordings in which Edwards requested that an associate threaten Harvey, his sister, and her daughter. As a result, Harvey slept on the floor of his home, at times in hotels, and moved from his house. The violence resumed on June 20, 2006, when Harvey alleged that unknown gunmen fired shots at him while he was at his brother's store. Harvey did not contact the police after the latest incident because, he asserted, he did not know who was responsible. Instead he obtained the firearm at issue.
The district court declined to sentence Harvey below the applicable guidelines range. It reasoned that Harvey had better options than "taking the law into his . . . own hands," including reporting the June shooting incident to the police or "totally relocating" to another area. The court then discussed the community's desire to address the dangers associated with felons possessing guns, the facts articulated in the PSR, and Harvey's apparent inability to learn from past mistakes, as well as the circumstances under which Harvey carried the gun. The court cited several factors listed in 18 U.S.C. § 3553(a), including the need to protect the public and adequately deter Harvey from further criminality. It ultimately sentenced him to 72 months' imprisonment, at the low end of the guidelines range.
Harvey's attorney filed a timely electronic notice of appeal that contained the parties' names, the judgment being appealed, and the court to which Harvey appealed. According to the local rules of the Eastern District of Wisconsin, however, the notice of appeal must be filed "conventionally on paper." E.D. Wis., Electronic Case Filing Policies and Procedures Manual, Criminal Part III(C) (2006). The next day the clerk's office sent counsel an e-mail informing him that he should file a paper copy of the notice of appeal, but Harvey did not submit a paper copy until almost two months later, well after the deadline set by Federal Rule of Appellate Procedure 4 for filing the notice of appeal in a criminal case.
We must first consider whether we have jurisdiction to hear this appeal even though Harvey's counsel did not file a paper notice of appeal until nearly two months after the deadline. Fed. R. App. P. 4(b)(1). For purposes of Rule 4, we accept any timely filed document that identifies the parties, the judgment being appealed, and the court to which the party appeals. Fed. R. App. P. 3; Remer v. Burlington Area Sch. Dist., 205 F.3d 990, 995 (7th Cir. 2000). Harvey's counsel tendered to the clerk's office a timely electronic notice of appeal that satisfied these requirements. But he violated a local rule by failing to file the notice "conventionally on paper." E.D. Wis., Electronic Case Filing Policies and Procedures Manual, Criminal Part III(C).
Federal Rule of Civil Procedure 5(e) ensures that any document presented to the clerk in violation of a local rule of form can nonetheless be filed for purposes of satisfying a filing deadline. Fed. R. Civ. P. 5(e) & 1991 advisory committee's note; Farzana v. Ind. Dep't of Educ., 473 F.3d 703, 707-08 (7th Cir. 2007); Jones v. Bertrand, 171 F.3d 499, 503 (7th Cir. 1999). We recently held that Rule 5(e)'s protection regarding errors of form "covers all matters regulated by the rules of procedure." Farzana, 473 F.3d at 707. Thus, in Farzana, we held that a complaint was timely filed even though the district court's electronic filing system rejected it due to an error in the docket number. Id. at 706-08. Farzana further held that Rule 5(e) was specifically intended to prevent clerks (and electronic filing systems) from rejecting complaints and notices of appeal and thus causing litigants to miss deadlines for filing such documents. Id. at 707.
This case fits squarely within Farzana. Harvey tendered the notice of appeal to the clerk within the period specified by Rule 4. Although his submission did not conform to local rules, the difference between a hard copy and an electronic submission is a mere error of form. We hold that Harvey timely filed his notice of appeal when he submitted it electronically to the clerk's office. See also Fed. R. Civ. P. 83(a)(2) (explaining that a court should not ...