United States v. Elston Stevenson

13 F.4th 607

• Court: Court of Appeals for the Seventh Circuit
• Decided: September 8, 2021
• Docket: 20-2261
• Status: Published

Opinion

In the

United States Court of Appeals For the Seventh Circuit ____________________ No. 20-2261 UNITED STATES OF AMERICA, Plaintiff-Appellee, v.

ELSTON STEVENSON, Defendant-Appellant. ____________________

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:18-cr-00116-1 — John J. Tharp, Jr., Judge. ____________________

ARGUED MARCH 30, 2021 — DECIDED SEPTEMBER 8, 2021 ____________________

Before KANNE, BRENNAN, and SCUDDER, Circuit Judges. BRENNAN, Circuit Judge. Elston Stevenson possessed a fire- arm as a felon, and as an armed career criminal he received an enhanced sentence. In the district court and on appeal, he challenges whether, given that state officials sent him a resto- ration of rights letter, two of his prior Illinois state convictions could support that enhancement. The district court concluded that Stevenson did not establish by a preponderance of the 2 No. 20-2261

evidence that the letter in question pertained to those predi- cate convictions. That court did not clearly err, so we affirm. I On November 22, 2017, mourners gathered at a funeral at a cemetery in Evergreen Park, Illinois. During the burial, Ste- venson drew a revolver and fired one shot into the grave. He then waved the gun towards the crowd and fled. Soon after, police officers arrested Stevenson and recovered the gun, which was discarded nearby. A grand jury indicted Steven- son with one count of possession of a firearm by a felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e), to which Steven- son pleaded guilty. A. Presentencing Phase The presentencing phase of Stevenson’s case was conten- tious. In the presentence investigation report, the probation department concluded that Stevenson should receive an en- hanced sentence under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), based on three of his prior Illinois state convictions: 1. 1989 conviction for attempted murder; 2. 1989 conviction for manufacture and delivery of cocaine; and 3. 2010 conviction for robbery. With a total offense level of 30 and a criminal history category of IV, the probation office recommended a guidelines range of 135 to 168 months’ imprisonment. But because Stevenson qualified as an armed career criminal—warranting a mini- mum 15-year sentence—the probation office recommended 180 months’ imprisonment. No. 20-2261 3

Stevenson disagreed with the sentencing recommenda- tion. In two memoranda he challenged the validity of his two 1989 convictions as ACCA predicates. Stevenson claimed he received a letter restoring his civil rights from the Illinois De- partment of Corrections (IDOC) discharging him from his 1989 convictions. The government pushed back, relying on an affidavit from Kevin Heard, a computer programmer for IDOC from 1988 to 2010. Heard averred “the restoration-of-rights discharge let- ters were generated when an offender ‘completed the term of parole.’” A defendant’s movement history would indicate whether a discharge letter had been generated. The entry “Pa- role Out” indicated that the offender was released and placed on parole; “Discharge Out” meant that the offender was out- side of IDOC’s legal jurisdiction. An offender is discharged out when he completes his term of parole. Illinois’s offender tracking system also kept a “mittimus”—a type of transcript of an offender’s convictions and sentences—which contained the terms of imprisonment and parole. The government ar- gued that if IDOC had sent a restoration letter, that would have been noted by a “Discharge Out” entry on the defend- ant’s movement history, as the offender tracking system au- tomatically generated discharge letters for those who were discharged out. Stevenson’s mittimus and movement history show he was admitted to IDOC for his 1989 offenses on December 1, 1989. He was paroled out of IDOC custody on May 17, 1993. Then on December 19, 1993, he was arrested for Unlawful Use/Pos- session of a Weapon by a Felon (UUW). He pleaded guilty to that offense on March 17, 1994, and he was sentenced to three years’ imprisonment. The next day, Stevenson was re- 4 No. 20-2261

admitted to IDOC custody. For Stevenson, a “Discharge Out” entry appears on March 15, 1996, but nothing before that date. The government contended that the corresponding 1996 restoration letter applied only to Stevenson’s 1994 UUW con- viction, not to his 1989 convictions. To the government, the absence of a “Discharge Out” entry as to Stevenson’s 1989 convictions conclusively proved that no discharge letter was generated for Stevenson during this time period. That would mean Stevenson did not successfully complete his parole for his 1989 convictions before his arrest in the UUW case. Stevenson disagreed. He argued it is “quite possible” that the “Discharge Out” entry in 1996 applied to at least one of his 1989 convictions. Given that in 1989 Stevenson received six years on the attempted murder conviction to run consecu- tive to four years on the drug delivery conviction, he con- tended that when the “Discharge Out” entry was entered on March 15, 1996, he was still on parole for at least one of those two offenses. Stevenson submitted that a “B-Both” notation on his mittimus under the column “Discharge Indicator” for his 1994 UUW conviction and 1989 attempted murder convic- tion supports his contention. B. Sentencing Stevenson’s sentencing hearing stretched over two days. It began on January 16, 2020, and after an adjournment for the parties to brief the impact of the restoration letter, it was con- cluded on July 1, 2020. The district court acknowledged that Stevenson’s move- ment history is “not a model of clarity” and is “somewhat con- fusing.” The court pointed out that Stevenson was serving three sentences simultaneously—for a 1988 UUW conviction No. 20-2261 5

(for which he received a two-year sentence to run concur- rently with the 1989 drug trafficking offense), the 1989 drug trafficking conviction (with a four-year sentence), and the 1989 attempted murder conviction (with a six-year sentence). Each of these sentences began on December 1, 1989. Steven- son received 152 days credit for the 1988 UUW and 1989 drug trafficking convictions, and 226 days credit for his 1989 at- tempted murder conviction. So the court determined that the sentence for Stevenson’s 1989 attempted murder conviction would have ended on April 17, 1995. 1 From this, the district court concluded that Stevenson “was in custody when he was discharged and could not—he was discharged because he couldn’t be held any longer. … He couldn’t be paroled out on the attempt murder charge in 1996 because his sentence, his six-year sentence had already run its course. This is but- tressed by the fact that there is no discharge out entry on the movement record that’s connected to the April 17, 1995 date.” Because the offender tracking system “only automatically generated discharge letters for offenders who discharged out from a parole location by completing parole,” the court con- cluded that Stevenson was not discharged out. Rather, “[h]e

1 The district court calculated as follows: “Mr. Stevenson had 1,964 days to serve on his sentence as of 12/1/1989 when he started that attempt murder sentence. If you measure from 12/1/1989 to April 17, 1995 when he was discharged, you have 31 days in December of ’89, you have five full years of 365 days a year, and then you have the balance of 1995: 31 days in January, 28 days February, 31 days March, and 17 days in April of 1995. When you add those numbers up comes out to 1,963 days, the same num- ber of days that Mr. Stevenson had left to serve as of December 1, 1989 when he officially began serving his IDOC sentence on all three of those cases.” July 1, 2020 Sent. Tr. at 41–42, ECF No. 81. 6 No. 20-2261

completed those sentences in custody on April 17, 1995 and was not discharged out from a parole location.” The district court highlighted that the restoration letter IDOC used in the 1990s expressly referenced a defendant’s discharge from parole/mandatory supervised release. The let- ter stated: “We take this opportunity to congratulate you on your successful completion of your supervision and wish you continued success.” The court concluded that the content of the letter was consistent with the information that computer programmer Heard provided in his affidavit. From all this, the court concluded that Stevenson was not discharged out from parole on either the drug trafficking charge or the at- tempted murder charge. Stevenson argued the district court erred in its calculation, specifically that he began serving the six-year sentence for his 1989 attempted murder conviction on December 1, 1989. Be- cause that sentence was to be served consecutively to the four- year sentence for his drug conviction, Stevenson contended the six-year sentence could not have started in late 1989. Ste- venson also asked the court to draw an adverse inference against the government because of the puzzling IDOC rec- ords. The district court rejected Stevenson’s arguments, reason- ing that he had failed to show by a preponderance of the evi- dence that his civil rights had been restored on at least one of his 1989 convictions. Ruling that the ACCA enhancement ap- plies, the district court sentenced Stevenson to 15 years’ im- prisonment. No. 20-2261 7

II A person who violates 18 U.S.C. § 922(g) and has three prior convictions for a “violent felony” or “serious drug of- fense” receives an enhanced sentence as an armed career criminal. 18 U.S.C. § 924(e). Under 18 U.S.C. § 921(a)(20), a conviction for which a defendant’s civil rights have been re- stored cannot serve as a predicate offense unless the restora- tion of rights “expressly provides that the person may not ship, transport, possess, or receive firearms.” This court has described § 921(a)(20) as “an anti-mousetrapping rule, de- signed to ensure that persons who have been told that all civil rights have been restored are not taken by surprise when the statute books contain reservations (such as a ban on pos- sessing firearms) omitted from the communication.” United States v. Burnett, 641 F.3d 894, 895 (7th Cir. 2011) (citing Buch- meier v. United States, 581 F.3d 561, 566–67 (7th Cir. 2009) (en banc)). Stevenson appeals his sentence, contending the district court erred when it enhanced his sentence under ACCA. The 1989 attempted murder conviction, Stevenson argues, is not a valid ACCA predicate because Illinois allegedly restored his civil right to bear arms. He maintains that the restoration let- ter from 1996 applies to both his attempted murder conviction and UUW conviction. He points to his mittimus and move- ment history to assert he was “paroled out” on both the UUW and attempted murder convictions on April 17, 1995 and “dis- charged out” on both cases on March 15, 1996. We review a district court’s factual findings underlying its application of ACCA for clear error. United States v. Love, 7 F.4th 674, 677 (7th Cir. 2021). We defer to the district court’s factual findings “unless we have a definite and firm 8 No. 20-2261

conviction that a mistake has been made.” United States v. Fos- ter, 652 F.3d 776, 792 (7th Cir. 2011). The defendant has the burden of showing by a preponderance of the evidence that his civil rights were restored. United States v. Zuniga, 767 F.3d 712, 719 (7th Cir. 2014). If a defendant establishes that he was sent a letter restoring his civil rights, he must also show the letter applies to the rel- evant prior convictions. In Burnett, this Court explained that restoration of rights is “a conviction-by-conviction process, and a letter telling the ex-prisoner about this logically also applies conviction-by-conviction.” 641 F.3d at 896. The de- fendant in Burnett served multiple, overlapping sentences for multiple convictions, but upon being discharged from IDOC custody received only a single letter. This court concluded that a restoration letter linked to the expiration of parole on one conviction is limited to that conviction. Id. at 897. See also United States v. Boyce, 742 F.3d 792, 795 (7th Cir. 2014) (reject- ing the argument that a single restoration-of-rights letter re- stored civil rights on all of defendant’s previous felonies). Stevenson argues he was sent a restoration letter around the time he was discharged from parole for one conviction. But he did not establish by a preponderance of the evidence that such an IDOC letter sent to him on March 15, 1996 per- tained to his two 1989 convictions which served as predicates under ACCA. As in Burnett and Boyce, when Stevenson was finally “discharged out” from IDOC custody on March 15, 1996, the letter he was sent could pertain only to his 1994 UUW conviction, for which he had just finished parole. His sentences on his 1989 convictions had already ended while he remained in custody. No. 20-2261 9

The district court made this determination after closely ex- amining the available IDOC records and considering the sworn statements of IDOC computer programmer Heard, who had intimate knowledge of the processes and procedures under which IDOC issued restoration letters during the rele- vant timeframe. Given this evidence, the district court did not clearly err in finding that Stevenson did not receive such a let- ter related to his 1989 convictions. Stevenson’s sentences for those convictions expired while he remained in IDOC cus- tody for another, later offense, rather than—as required under IDOC procedures—upon his successful completion of parole. Stevenson argues the district court erred in finding that his sentence for the 1989 attempted murder expired on April 17, 1995. Because it was a consecutive sentence to be served after his four-year sentence for drug trafficking, surely, Stevenson contends, the longer sentence was ongoing on April 17, 1995 when he was paroled, and on March 15, 1996 when he was ultimately discharged. Stevenson believes he is like the de- fendant in Burnett—multiple sentences expiring on the same day, allowing for a single restoration letter to cover all the crimes. See Burnett, 641 F.3d at 896. The district court correctly rejected this argument. Had Stevenson served consecutive sentences for his two 1989 con- victions—effectively, a ten-year sentence—then as of March 1996, when he was discharged from parole, he still would have had prison time to serve. But Stevenson’s custody history from the IDOC offender tracking system shows he was discharged from both sentences related to his 1989 con- victions on April 17, 1995. And the mittimus provided a rea- sonable basis for the district court to determine that the 1989 offenses ended in 1995 and not in 1996 when the letter was 10 No. 20-2261

issued. These documents support the district court’s calcula- tions, so there was no clear error. Stevenson speculates that the sentence for his 1989 at- tempted murder conviction expired on the same day as the sentence for his 1994 UUW conviction. But that conjecture falls short of proof by a preponderance of the evidence. Boyce, 742 F.3d at 795–96 (ruling there was “no evidence that his pa- role revocation and UUW sentences terminated on the same date”). For example, the “B-Both” notation on the mittimus, the government explained, did not relate to whether sen- tences for two convictions were paroled or discharged to- gether. Rather, the notation designated the sentence that would keep a defendant in IDOC custody for the longest time period. Stevenson failed to show by a preponderance of the evidence that the 1996 letter applied to both of his 1989 con- victions. Like in Love, Stevenson “invites us to re-weigh the evidence,” 7 F.4th at 678, but our review is for clear error, and Stevenson’s challenge falls short. We commend the district court for its detailed factual find- ings and its patience and thoroughness in conducting this sentencing. For the reasons relayed above, we AFFIRM Steven- son’s sentence.