Argued January 6, 2014.
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 11-cr-00156 -- Charles R. Norgle, Judge.
For United States of America, Plaintiff - Appellee: Philip Fluhr, Attorney, Office of The United States Attorney, Chicago, IL.
For Mario Zuniga, Defendant - Appellant: Steven Shobat, Attorney, Chicago, IL.
Before EASTERBROOK, WILLIAMS, and TINDER, Circuit Judges.
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 convicted on both counts. Zuniga was given an enhanced sentence because he had three prior convictions that qualified 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 because 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 convictions 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 considered 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.
On November 2, 2009, Mario Zuniga was at a bar playing pool with friends when
Beatrice Suarez, an ex-girlfriend, entered the bar and slapped him across his face. Zuniga immediately took Suarez out the back door of the bar to an area enclosed by a fence. Kente Johnson-Taylor, curious to see whet 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 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 area, 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 caliber 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 officers found three additional baggies containing cocaine. In total, 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 possessing of cocaine, in violation of 21 U.S.C. § 844(a). Before trial, the government filed a motion in limine to admit Johnson-Taylor's statement to Mitchell that Zuniga had a gun, arguing that the statement was both a present sense impression and an excited utterance under Federal Rules of Evidence 803(1) and 803(2). But Zuniga argued that Johnson-Taylor's statement was not made under the stress of a startling 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 that Zuniga possessed a gun. Zuniga was convicted on both counts.
Before his 2009 arrest, Zuniga was convicted of nine felonies, 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 conviction for attempted murder. At sentencing, the court conducted 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 ...