United States v. Mario Zuniga , 767 F.3d 712 ( 2014 )

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.