United States v. Mario Zuniga

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 13-1557

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MARIO ZUNIGA,

Defendant-Appellant.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 11-cr-00156 — Charles R. Norgle, Judge.

____________________

ARGUED JANUARY 6, 2014 — DECIDED SEPTEMBER 11, 2014

____________________

Before EASTERBROOK, WILLIAMS, and TINDER, Circuit Judg-

es.

WILLIAMS, Circuit Judge. Mario Zuniga was arrested for

pointing a gun at his ex-girlfriend outside a bar and was

charged with being a felon in possession of a firearm and

possessing cocaine. Before trial began, the government filed,

and Zuniga opposed, a motion in limine to admit a witness’s

statement that Zuniga was holding a gun. The district court

granted the government’s motion and at trial Zuniga was

2 No. 13-1557

convicted on both counts. Zuniga was given an enhanced

sentence because he had three prior convictions that quali-

fied him as an armed career criminal.

On appeal, Zuniga argues that the district court abused

its discretion when it admitted a witness’s statement that he

was holding a gun. We disagree because the statement was

properly admitted under the excited utterance exception to

the hearsay rule, but even if it was not, the error would be

harmless. Zuniga also asserts that remand is warranted be-

cause the district court, as opposed to a jury, found that he

had three qualifying felony predicate convictions that made

him eligible for an enhanced mandatory minimum sentence.

We disagree. Under Supreme Court precedent, prior convic-

tions are sentencing factors that may be determined by a

judge. Finally, he argues that he should not have been given

an enhanced sentence because his civil rights were restored,

thereby precluding two of his convictions from being con-

sidered predicate offenses under the Armed Career Criminal

Act. Because Zuniga did not establish by a preponderance of

the evidence that the Illinois Department of Corrections

(“IDOC”) sent him a restoration-of-rights letter, we reject his

argument. We affirm the district court’s judgment.

I. BACKGROUND

On November 2, 2009, Mario Zuniga was at a bar playing

pool with friends when Beatrice Suarez, an ex-girlfriend, en-

tered the bar and slapped him across his face. Zuniga imme-

diately took Suarez out the back door of the bar to an area

enclosed by a fence. Kente Johnson-Taylor, curious to see

what was going on, walked to the rear of the bar, opened the

back door, looked into the back fenced-in area, and saw

Zuniga holding a gun to Suarez’s face. Less than a minute

No. 13-1557 3

later, Johnson-Taylor closed the door, walked back to his

friend, Nicole Mitchell, and whispered to her that Zuniga

had a gun and told her to call the police. Then Johnson-

Taylor went to the front door, went outside, walked to the

back of the building, stood on the outside of the enclosed ar-

ea, and waited for the police. As the police arrived, Zuniga

and Suarez tried to climb the fence behind the bar to get

away, but officers prevented their escape. In the process of

securing Zuniga, the officers found a loaded Bryco .38 cali-

ber handgun about seven or eight feet from where he was

standing. After Zuniga was placed in the police car, another

officer saw Zuniga squirming in the back seat. Officers took

him out of the car and spotted two plastic baggies containing

cocaine on the back seat. Zuniga was searched and the offic-

ers found three additional baggies containing cocaine. In to-

tal, the officers found five plastic bags that contained 3.1

grams of cocaine.

Zuniga was originally charged in state court for weapons

offenses, but the case was dismissed and he was charged in

federal court for being a felon in possession of a firearm, in

violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1), and for pos-

sessing of cocaine, in violation of 21 U.S.C. § 844(a). Before

trial, the government filed a motion in limine to admit John-

son-Taylor’s statement to Mitchell that Zuniga had a gun,

arguing that the statement was both a present sense impres-

sion and an excited utterance under Federal Rules of Evi-

dence 803(1) and 803(2). But Zuniga argued that Johnson-

Taylor’s statement was not made under the stress of a star-

tling event and was “the product of his reflection, his careful

consideration, and his deliberation.” The district court

granted the government’s motion. During trial, Johnson-

Taylor and Mitchell both testified that Johnson-Taylor stated

4 No. 13-1557

that Zuniga possessed a gun. Zuniga was convicted on both

counts.

Before his 2009 arrest, Zuniga was convicted of nine felo-

nies, including three convictions that qualified him as an

armed career criminal: a 1985 conviction for robbery; a 1988

conviction for manufacture or delivery of, or possession with

intent to manufacture or deliver, cocaine; and a 1996 convic-

tion for attempted murder. At sentencing, the court con-

ducted an evidentiary hearing to explore two issues that

could affect the length of Zuniga’s sentence: (1) whether his

1988 drug conviction qualified as a predicate offense under

the Armed Career Criminal Act (“ACCA”); and (2) whether

Zuniga’s civil rights were restored when he was released

from the Illinois Department of Corrections (“IDOC”) on

February 14, 1992. The judge found that Zuniga’s 1988 drug

conviction qualified as a predicate offense under the ACCA

and that Zuniga had not demonstrated that his civil rights

were restored for his 1985 robbery and 1988 drug convic-

tions. Because of Zuniga’s prior convictions, the court ap-

plied an enhanced penalty under the ACCA and sentenced

him to 188 months’ imprisonment. Zuniga now appeals his

conviction and sentence.

II. ANALYSIS

A. Johnson-Taylor’s Statement Properly Admitted

Zuniga argues that the district court abused its discretion

by admitting under the present sense impression and excited

utterance exceptions to the hearsay rule Johnson-Taylor’s

statement that Zuniga possessed a gun. The district court’s

evidentiary rulings are reviewed for abuse of discretion,

United States v. Simon, 727 F.3d 682, 696 (7th Cir. 2013), and it

No. 13-1557 5

will not be reversed “unless the record contains no evidence

on which [the trial judge] rationally could have based [his]

decision,” United States v. Conley, 291 F.3d 464, 472 (7th Cir.

2002).

Because Johnson-Taylor’s statement was properly admit-

ted under the excited utterance exception, we do not decide

whether it was also properly admitted under the present

sense impression exception. 1 Under Rule 803(2), hearsay is

admissible as an excited utterance if the statement made was

related to a startling event and made while the declarant was

under the stress of the excitement that caused the statement

to be uttered. Fed. R. Evid. 803(2). For an out of court state-

ment to qualify under the excited utterance exception: (1) a

startling event must have occurred; (2) the declarant must

make the statement under the stress of the excitement

caused by the startling event; and (3) the declarant’s state-

ment relates to the startling event. United States v. Joy, 192

F.3d 761, 766 (7th Cir. 1999).

First, Zuniga argues that Johnson-Taylor was neither

startled nor excited when Johnson-Taylor witnessed Zuniga

hold a gun to Suarez’s head. Zuniga points to Johnson-

Taylor whispering to his girlfriend, as opposed to blurting

out that Zuniga had a gun, as evidence that Johnson-Taylor

was not excited. Zuniga’s reasoning is curious because in

almost every imaginable scenario, seeing a person pointing a

gun at the head of another is a startling situation. Further-

1 We have previously noted that Rules 803(1) and (2) do not necessarily

rest on a sound foundation, but we also have recognized that the excep-

tions are well established. See United States v. Boyce, 742 F.3d 792, 796 (7th

Cir. 2014) (applying the present sense impression and excited utterance

exceptions to the hearsay rule after noting their limitations).

6 No. 13-1557

more, a declarant whispering, as opposed to yelling, does

not necessarily mean that the statement cannot qualify as an

excited utterance. Zuniga cites no law that stands for the

proposition that a statement cannot qualify as an excited ut-

terance because it was whispered, as opposed to yelled.

Moreover, it is not beyond belief that Johnson-Taylor would

whisper, “he’s got a gun,” if he was trying to avoid being

detected by Zuniga and having the gun pointed at him or

prevent people from panicking, which the record indicates

Johnson-Taylor was doing here. At trial, Johnson-Taylor

stated that Zuniga’s demeanor was hostile and his body lan-

guage was threatening. He also testified that Suarez was

scared and that he was concerned that something was about

to happen to her. When asked on direct examination why he

did not confront Zuniga directly, he stated that the situation

was “heated” and he did not want “it to come [his] way.” He

also said that he did not want to create a panic, which is

bound to happen when people hear that someone is pointing

a gun at another person. Based on the evidence, we have no

trouble finding that Johnson-Taylor witnessed a startling

event and the volume at which Johnson-Taylor uttered, “he’s

got a gun,” makes little difference in this case.

Second, Zuniga argues that even if Johnson-Taylor was

startled, he did not make his statement while under the

stress or excitement of an event. He asserts that because

Johnson-Taylor thought about how he was going to avoid a

dangerous situation, Johnson-Taylor could not have been

under the stress of seeing Zuniga holding a gun. But as we

have explained, “a court need not find that the declarant was

completely incapable of deliberative thought at the time he

uttered the declaration” in order for it to be admissible un-

der the excited utterance exception to the hearsay rule. Joy,

No. 13-1557 7

192 F.3d at 766. “All that the exception requires is that the

statement be made contemporaneously with the excitement

resulting from the event.” Martinez v. McCaughtry, 951 F.2d

130, 135 (7th Cir. 1991). Here, it is clear that Johnson-Taylor

uttered his statements sufficiently contemporaneously with

Zuniga pointing a gun at Suarez’s head. Johnson-Taylor tes-

tified at trial that the time between when he saw Zuniga

holding a gun and when he told Mitchell what he saw was

maybe five seconds. Mitchell testified that it was less than a

minute. Both of these sworn accounts suggest that Johnson-

Taylor’s statement was made under stress, as less than a mi-

nute had passed from the time he saw Zuniga pointing a

gun at Suarez to the moment he relayed that information to

Mitchell. Cf. Joy, 192 F.3d at 766 (admitting under the excited

utterance exception declarant’s statement that was made a

few minutes after witnessing an exciting event); United States

v. Shoup, 476 F.3d 38, 42 (1st Cir. 2007) (finding that declar-

ant’s statements to 911 constituted an excited utterance

where he made them about one to two minutes after leaving

a dangerous situation and going into apartment); see also

Boyce, 742 F.3d at 795–96 (admitting under the excited utter-

ance exception declarant’s statement to 911 made just after

she was battered and ran to a neighbor’s home to call 911).

Even if Johnson-Taylor’s statement was inadmissible ev-

idence because it did not fit under the excited utterance ex-

ception, the error was harmless because admission of hear-

say testimony does not constitute reversible error “if we de-

termine that the error had no substantial influence on the

verdict.” United States v. Dominguez, 992 F.2d 678, 681 (7th

Cir. 1993) (quoting United States v. Cherry, 938 F.2d 748, 757

(7th Cir. 1991)). “[W]here other untainted incriminating evi-

dence is overwhelming, the error is deemed harmless.” Id.

8 No. 13-1557

Zuniga argues that the government has waived any harm-

less error argument, and, therefore, this avenue is unavaila-

ble. “[W]e and other courts have sometimes affirmed a crim-

inal judgment on the basis of the harmless-error rule even

though the government had not invoked it.” United States v.

Ford, 683 F.3d 761, 768 (7th Cir. 2012). With the removal of

Johnson-Taylor’s statement, sufficient evidence remains for a

rational jury to conclude beyond a reasonable doubt that

Zuniga possessed a gun. See Neder v. United States, 527 U.S. 1,

18 (1997). Johnson-Taylor testified that he saw Zuniga hold-

ing a gun to Suarez’s head. He also testified that the gun re-

covered by police looked “exactly like” the one he saw in

Zuniga’s possession at the rear of the bar. Even if Johnson-

Taylor or Mitchell never testified about what Johnson-Taylor

said to Mitchell, the jury still would have heard Johnson-

Taylor testify about what he saw at the back of the bar. The

impact of the purportedly erroneously admitted evidence

was not so overpowering as to taint the jury’s view of the

other evidence. See Collins v. Kibort, 143 F.3d 331, 339 (7th

Cir. 1998). Because other evidence remains that supports the

charge that Zuniga unlawfully possessed a weapon, we con-

clude that if an error arose, it did not impact the jury’s de-

termination so as to prejudice Zuniga.

B. Prior Convictions Are Sentencing Factors Deter-

mined by Judge

As for his sentence, Zuniga argues that remand is war-

ranted because the district court violated Alleyne v. United

States, 133 S. Ct. 2151 (2013), when it, as opposed to a jury,

found that he had three qualifying felony predicates to make

him eligible for the enhanced mandatory minimum penalty.

According to Alleyne, any fact that increases the mandatory

No. 13-1557 9

minimum sentence for a crime is an “element” of the crime,

not a “sentencing factor,” and must be submitted to the jury.

Id. at 2155. We review de novo the question of whether a

sentencing court erred in sentencing a defendant under the

ACCA. United States v. Foster, 652 F.3d 776, 792 (7th Cir.

2011).

Zuniga’s argument is foreclosed by Almendarez-Torres v.

United States, 523 U.S. 224, 246 (1998), which held that prior

convictions are “sentencing factors” that could be deter-

mined by a judge, and did not need to be alleged in the in-

dictment or proven to a jury. The Court explicitly declined to

decide whether the exception created in Almendarez-Torres

was still valid. See Alleyne, 133 S. Ct. at 2160 n.1. Because the

parties in Alleyne did not contest the vitality of Almendarez-

Torres, and because the Court did not rule on the matter, Al-

mendarez-Torres is still good law. See Boyce, 742 F.3d at 799.

Therefore, under the narrow exception created by the Court

in Almendarez-Torres, prior convictions are not facts that

must be submitted to a jury, but rather may be found by

judges. United States v. Johnson, 743 F.3d 1110, 1111 (7th Cir.

2014).

C. Civil Rights Not Restored

Zuniga also argues that the district court erred because it

found at sentencing that his civil rights had not been re-

stored, and according to his interpretation of Alleyne, the

prosecutor was required to prove this to a jury. Under

§ 922(g)(1), a person who has been convicted of “a crime

punishable by imprisonment for a term exceeding one year”

may not possess “any firearm or ammunition.” Normally,

the maximum prison term for a felon convicted of pos-

sessing a firearm is ten years. See 18 U.S.C. § 924(a)(2). How-

10 No. 13-1557

ever, the ACCA mandates a minimum sentence of fifteen

years for a defendant with three prior serious drug convic-

tions or violent felonies, who is subsequently convicted for

unlawful possession of a firearm. See § 924(e)(1); Logan v.

United States, 552 U.S. 23, 128 S. Ct. 475, 479 (2007). If the de-

fendant has had his civil rights restored with regard to a pri-

or felony, the prior felony does not count as a predicate of-

fense for a § 922(g)(1) violation unless the “restoration of civ-

il rights expressly provides that the person may not ship,

transport, possess, or receive firearms.” 18 U.S.C.

§ 921(a)(20); see also Foster, 652 F.3d at 791. The district found

that Zuniga had three qualifying predicates under the

ACCA and gave him an enhanced sentence. We review de

novo the district court’s application of the ACCA to Zuniga’s

sentence and its factual findings for clear error. Kirkland v.

United States, 687 F.3d 878, 882-83 (7th Cir. 2012).

In Apprendi v. New Jersey, the Supreme Court concluded

that, other than the fact of a prior conviction, any facts that

increase the penalty beyond the statutory maximum to

which a criminal defendant is exposed must be submitted to

the jury, and proved beyond a reasonable doubt. 530 U.S.

466, 490 (2000). In United States v. Brown, the defendant pled

guilty to bank robbery and was sentenced to life in prison

under the federal “three strikes” law. We were asked to de-

termine whether legislation that placed the burden on the

defendant to prove the affirmative defense that his offense

did not qualify as a serious violent felony violated Apprendi

and by implication whether the sentencing judge could

make this determination. 276 F.3d 930 (7th Cir. 2002). The

defendant argued, invoking Apprendi, that whether he com-

mitted a serious felony with a dangerous weapon was a fact

that the prosecution was required to prove to a jury beyond

No. 13-1557 11

reasonable doubt. In reviewing his case, we stated that while

the prosecution must prove all elements of the charged of-

fense beyond a reasonable doubt, legislation that creates af-

firmative defenses can place the burden of proving that af-

firmative defense on the defendant without violating Ap-

prendi. Id. at 933.

As mentioned earlier, under Alleyne, facts that increase

the mandatory minimum sentence must be found by the ju-

ry, 133 S. Ct. at 2155, but the Court first used the principle

with regard to statutory maximum sentences in Apprendi.

530 U.S. at 490. Since the principle applied in Apprendi ap-

plies with equal force to facts increasing the mandatory min-

imum, Alleyne, 133 S. Ct. at 2160, there is no reason we can-

not apply the logic used in Brown to this case. In Alleyne, the

Court said, “[t]he touchstone for determining whether a fact

must be found by a jury beyond a reasonable doubt is

whether the fact constitutes an ‘element’ or ‘ingredient’ of

the charged offense.” Id. at 2158. We have stated previously

that, “the civil rights restoration exception

in section 921(a)(20) is not an element of the offense de-

scribed in section 922(g),” but rather “is an affirmative de-

fense to a criminal charge under 18 U.S.C. § 922(g)(1).” Fos-

ter, 652 F.3d at 791-92; see also United States v. Osborne, 173

F.3d 853 (4th Cir. 1999) (stating that the court has explicitly

found that lack of restoration of civil rights is not an element

of the offense stated in § 922(g)); United States v. Bartelho, 71

F.3d 436, 439 (1st Cir. 1995) (stating that the fact that the

right to carry a firearm has not been restored is not an ele-

ment of a § 922(g) violation). Applying the logic used in

Brown, we conclude that the district court properly decided

whether Zuniga’s civil rights were restored because the un-

derlying facts that could support that determination consti-

12 No. 13-1557

tute an affirmative defense, not an element of the offense,

and are not covered by Alleyne.

But Zuniga argues that, in the event that Alleyne is inap-

plicable, he met his legal burden of establishing that his civil

rights were restored in 1992 and that his 1985 robbery con-

viction and his 1988 drug conviction are not ACCA predicate

offenses. We disagree. Zuniga first challenges the burden of

proof that he must meet when he alleges that his civil rights

were restored. Pre-Alleyne, when a defendant claimed that

his civil rights were restored, it was the defendant that bore

the burden of showing by a preponderance of the evidence

that his civil rights were restored. Foster, 652 F.3d at 793.

Zuniga argues that placing the burden on him does not sur-

vive Alleyne, but as we previously stated, since Alleyne does

not apply here, he bears the burden of showing that his civil

rights were restored. Since it is Zuniga who bears this bur-

den, the only way that he wins on his claim is if he can show

that the district court clearly erred by finding, by a prepon-

derance of the evidence, that he did not meet his burden. See

United States v. Burnett, 641 F.3d 894, 896 (7th Cir. 2011).

Zuniga faces an uphill battle because he does not possess

an IDOC letter that states that his rights were restored, but

he hopes that we will infer from a number of facts that they

were. At the heart of Zuniga’s argument are the following

five propositions that he argues supports the conclusion that

his civil rights were restored:

1. The Illinois Department of Corrections policy of

notifying releasees about their restored rights was

enacted on July 1, 1991 – more than 7 months be-

fore Zuniga was released from IDOC custody

(February 14, 1992);

No. 13-1557 13

2. the IDOC policy was effective immediately;

3. the IDOC policy notifications became automatic

by March 25, 1992;

4. prior to automatic computer notification, notifica-

tion was made to releasees either through the cen-

tral Springfield office or directly through the facili-

ty an inmate was released from; and

5. the content of the notifications to releasees did not

change upon the notifications becoming automat-

ic; the only change was in the manner in which no-

tifications were sent (through the use of computer

generated notices).

We do not believe that Zuniga has met his burden. While

IDOC may have enacted a policy before he was released

from prison that informed releasees by letter that their rights

were restored, there is no credible evidence that the IDOC

implemented the policy or actually sent such letters before

March 1992 (one month after Zuniga was paroled). In sup-

port of his claim, Zuniga presented a letter to the district

court from IDOC legal counsel who canvassed people that

were IDOC employees in 1991-92. IDOC legal counsel asked

the employees whether they recalled if defendants were no-

tified of the restoration of their civil rights. Some employees

remembered letters going out. The problem Zuniga faces is

that nobody knew exactly when these letters went out, what

exactly inmates were told, or where the letters came from. In

a follow up email from the government, legal counsel also

admitted that some of the canvassed employees may have

been thinking of the wrong period when they discussed

whether notification letters were sent, that IDOC did not

know and could not know for certain if notification letters

were created during the period Zuniga was released from

14 No. 13-1557

prison, nor had any information as to what releasees were

told about their restored rights. These vague and sometimes

contradictory recollections of IDOC employees about events

that occurred over twenty years ago is not sufficient to show

that the district court clearly erred.

Alternatively, Zuniga argues that he met his burden at

sentencing based on the presumption of regularity and the

fact that IDOC’s policy of notifying releasees about their re-

stored rights went into effect on July 1, 1991, but this argu-

ment fails as well. Under the presumption of regularity doc-

trine, we will presume that public officers will properly car-

ry out their official duties, so long as there is no evidence to

the contrary. United States v. Lee, 502 F.3d 691, 697 (7th Cir.

2007). Underlying this presumption is that the government

engages in the challenged activity regularly and adheres to

established procedures. See Wilson v. Hodel, 758 F.2d 1369,

1372 (10th Cir. 1985).

Based on the record, we find Zuniga cannot rely on the

presumption because evidence exists that IDOC may not

have sent restoration-of-rights letters to releasees when Zun-

iga was discharged from prison. Although IDOC enacted its

policy of notifying releasees about their rights in July 1, 1991,

IDOC stated that, based on employee interviews, it was un-

clear if IDOC sent letters to releasees at the time Zuniga was

released. When pressed if the IDOC in fact followed its poli-

cy enacted July 1 by providing notification to releasees,

IDOC said that it did not know and could not ascertain

when or if notifications were sent prior to March 1992. IDOC

further stated that prior to March 26, 1992 when notifications

became automatic, it did not know, nor could it ascertain

how notifications were made to releasees. Finally, IDOC had

No. 13-1557 15

no information about what releasees were specifically told

regarding their rights. Based on the evidence, it is unclear

that restoration-of-rights letters were sent, who sent them,

and what information the letters contained. Without more,

the evidence Zuniga presents does not establish the pre-

sumption of regularity, which would permit us to infer that

the IDOC sent a restoration-of-rights letter to him. Because

Zuniga cannot rely on the presumption of regularity, he has

failed to show that the district court clearly erred in finding

that his civil rights were not restored.

III. CONCLUSION

We AFFIRM the district court’s judgment.