United States v. Mario Zuniga
767 F.3d 712
| 7th Cir. | 2014Background
- On Nov. 2, 2009, Mario Zuniga allegedly pointed a gun at his ex-girlfriend outside a bar; police later found a loaded .38 and 3.1 grams of cocaine near him.
- Zuniga was charged federally with being a felon in possession of a firearm (18 U.S.C. § 922(g)(1)) and simple possession of cocaine (21 U.S.C. § 844(a)).
- Government moved in limine to admit a bystander's statement that Zuniga had a gun (present sense impression / excited utterance); district court admitted it and both the declarant and the recipient testified at trial.
- Zuniga was convicted on both counts and at sentencing the court applied the ACCA based on three prior felonies (robbery, 1985; drug conviction, 1988; attempted murder, 1996), producing a 188‑month term.
- At sentencing Zuniga contested (1) whether the 1988 drug conviction qualified under the ACCA and (2) whether his civil rights had been restored after IDOC release in Feb. 1992 (which would negate two predicates). The court found the convictions qualified and that restoration was not shown.
Issues
| Issue | Zuniga's Argument | Government's Argument | Held |
|---|---|---|---|
| Admissibility of Johnson‑Taylor’s out‑of‑court statement (hearsay) | Statement not an excited utterance or present sense impression; was reflective and whispered. | Statement was contemporaneous and made under stress — admissible as an excited utterance. | Admissible under excited utterance exception; alternatively, any error was harmless. |
| Harmless‑error waiver and impact of hearsay | Admission was prejudicial; government waived harmless‑error defense. | Even without the statement, other overwhelming evidence would sustain conviction. | Harmless‑error analysis may be applied despite no govt. invocation; remaining evidence supports conviction. |
| Whether prior convictions increasing mandatory minimum must be found by jury (Alleyne/Apprendi conflict) | Judge’s finding of three ACCA predicates violated Alleyne — jury must find facts increasing mandatory minimum. | Almendarez‑Torres allows judges to find prior convictions as sentencing factors. | Almendarez‑Torres still controls; prior convictions may be found by judge, so no Alleyne error. |
| Restoration of civil rights (predicate exclusion and burden) | IDOC policy effective July 1991 and likely notification letters sent before Feb. 1992 — rights were restored (so two priors shouldn’t count). | Zuniga failed to prove restoration by preponderance; IDOC records do not show letters were sent when he was released. | District court did not clearly err: Zuniga failed to meet preponderance; presumption of regularity inapplicable. |
Key Cases Cited
- United States v. Joy, 192 F.3d 761 (7th Cir.) (excited utterance analysis)
- Martinez v. McCaughtry, 951 F.2d 130 (7th Cir.) (contemporaneity requirement for excited utterance)
- United States v. Boyce, 742 F.3d 792 (7th Cir.) (application of hearsay exceptions)
- Neder v. United States, 527 U.S. 1 (1999) (harmless‑error standard for constitutional and nonconstitutional errors)
- Almendarez‑Torres v. United States, 523 U.S. 224 (1998) (prior convictions are sentencing factors)
- Alleyne v. United States, 133 S. Ct. 2151 (2013) (facts that increase mandatory minimum must be found by jury)
- Apprendi v. New Jersey, 530 U.S. 466 (2000) (elements vs. sentencing facts principle)
- United States v. Foster, 652 F.3d 776 (7th Cir.) (ACCA and civil‑rights restoration burden)