NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued December 3, 2013
Decided December 19, 2013
Before
RICHARD A. POSNER, Circuit Judge
DANIEL A. MANION, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 13‐2015 Appeal from the United States District
Court for the Central District of Illinois
UNITED STATES OF AMERICA,
Plaintiff‐Appellee, No. 09‐CR‐10047
v. Michael M. Mihm, Judge.
EARL E. ROSS, JR.,
Defendant‐Appellant.
O R D E R
After police officers found a handgun in Earl Ross’s home, he was indicted for
possessing a firearm as a felon. Ross moved to suppress the handgun and twice moved
to dismiss the indictment. The district court denied Ross’s motions, and he entered a
conditional plea of guilty. The district court sentenced Ross to 15 years’
No. 13‐2015 Page 2
imprisonment—the statutory minimum under the Armed Career Criminal Act. Ross
appeals the denial of his motion to suppress the handgun, the denials of his motions to
dismiss the indictment, and the application of the Armed Career Criminal Act. We
affirm.
I. Background
In the early 1980s, Earl E. Ross, Jr., racked up five separate felony
convictions—attempted robbery, burglary (twice), theft, and deceptive practices. Ross
served sentences in the Illinois Department of Corrections, was released, and then was
convicted of aggravated battery—another felony—in 1985. Ross was sent back to prison,
but was subsequently paroled and was eventually discharged on November 28, 1988. In
1992, Ross was convicted of two more felonies —aggravated batteries—and yet again
was sent to prison. Ross made parole and then was discharged in September 1997.
On March 10, 2009, Ross was visiting his child at the home of the child’s mother,
Janice Cockroft, and her boyfriend, Robert Cotelleso. A disagreement between Ross and
Cockroft escalated when Ross threatened Cockroft, left, and then returned with a
handgun. While outside Cockroft’s home, Ross fired the handgun several times in the
air and then drove away. Shortly after the Peoria Police Department received a report
about the incident, Officer Nicholas Manson arrived on the scene and interviewed
Cockroft, Cotelleso, and two neighbors. He reported by radio that Ross, the shooter,
was a black man wearing a black leather jacket and glasses who had left the scene in a
dark blue or black sedan and lived on nearby Millmann Street a couple of houses in
from MacArthur Avenue. Officer Manson also inspected the scene and discovered
seven shell casings.
Meanwhile, Sergeant Cover as well as Officer Dave Buchanan and his partner
converged on Millmann street. Cover spoke with the residents of 910 Millmann and
learned that Ross lived at 908 Millmann. Officer Buchanan observed a dark blue sedan
parked in the driveway at 908 Millmann. Officer Buchanan and his partner then began
repeatedly knocking on the front door of 908 Millmann while Sergeant Cover and at
least two other officers surrounded the house. Eventually, a black male wearing a black
leather jacket and glasses answered the door. Officer Buchanan and his partner told the
man they needed to talk to Ross. The man responded, “He ain’t here. He just left.” One
of the officers asked if Ross lived there, and the man responded “Don’t worry about it.
It’s none of your business.” When Officer Buchanan asked for identification, the man
No. 13‐2015 Page 3
responded, “It’s none of your business. Don’t worry about it. You need a warrant.”
Officer Buchanan explained that they were investigating a call involving a firearm and
needed to identify the man at the door. The man repeated, “Don’t worry about it. This is
none of your business,” and began closing the door. Officer Buchanan stepped into the
threshold to prevent the door from closing, and told the man he needed to identify
himself or else he’d be arrested for obstructing the police. The man continued to refuse
to identify himself and so the officers stepped a few feet into the house, handcuffed the
man, and placed him under arrest. They then escorted the man outside of the house.
The officers patted down the man and found no gun, but did find a wallet containing a
card identifying the man as Ross.
Sergeant Cover determined that the sedan belonged to a woman in Peoria,
telephoned her, and obtained consent to search the sedan. However, no gun was found
in the car. The police also swept the house—searching rooms and places where persons
might be hiding—but found no one and saw no gun. The police then sought and
obtained a search warrant to search the house for the handgun. While executing the
search warrant, the police found a handgun in a kitchen cabinet. A crime lab
subsequently determined that the discovered handgun fired the shell casings found by
Officer Mason.
Ross was charged with being a felon in possession of a firearm in violation of 18
U.S.C. § 922(g)(1).1 Ross moved to suppress the handgun on the theory that the
warrantless entry into his house to place him under arrest violated his rights under the
Fourth Amendment, and that the seizure of the handgun was a result of the
constitutional violation. The district court concluded that exigent circumstances justified
the entry into the house because there was a risk that Ross would fire the gun again.
Ross also moved to dismiss the indictment on the grounds that his civil rights
had been restored when he was discharged from parole in 1997. Ross was unable to
provide a copy of his 1997 discharge letter, but Edward Huntley, Special Litigation
Counsel for the Illinois Department of Corrections, testified about the Department’s
practices concerning restoration‐of‐rights notices and provided a sample of the
discharge letter that the Department used in 1997. That sample letter read, in pertinent
part,
1
Ross was also charged with unlawful possession of a stolen firearm, but the
district court dismissed that count.
No. 13‐2015 Page 4
We are pleased to inform you of the restoration of your right to vote and
to hold offices created under the Constitution of the State of Illinois. You
also have the right to restoration of licenses granted to you under the
authority of the state of Illinois if such license was revoked solely as a
result of your conviction, unless the licensing authority determines that
such restoration would not be in the public interest.
The parties stipulated that Ross believed the letter he actually received in 1997—in
relation to his sentence for his 1992 convictions—was like the sample letter. Regarding
his convictions in the early 1980s, neither Ross nor the Illinois Department of
Corrections had copies of the discharge letter. However, Huntley testified that, prior to
July 1991, the Department did not use any restoration‐of‐rights language when
informing convicts of their discharge. And the letter Ross received when he was
discharged in 1988 after serving his sentence for his 1985 felony did not contain any
restoration‐of‐rights language. The district court then concluded that the 1992
convictions could not support the felon‐in‐possession charge because the discharge
letter Ross likely received in 1997 probably contained restoration‐of‐rights language
without specifically excluding the right to posses a firearm. Nonetheless, the district
court denied Ross’s motion to dismiss because the felonies from the 1980s supported
the felon‐in‐possession charge.
Thereupon, Ross pleaded guilty conditioned on his right to appeal the district
court’s denials of his motion to suppress and motion to dismiss.2 During the plea
colloquy, Ross’s attorney orally moved to dismiss the indictment and argued that, in
order to establish Ross’s guilt, the government had to prove that Ross traveled with the
handgun in interstate commerce or, at least, knew that it had traveled in interstate
commerce. The district court denied the motion to dismiss, but the government agreed
to allow Ross to raise his new argument on appeal.
At sentencing, Ross’s pre‐sentencing report (PSR) found that Ross qualified for
an enhanced sentence—a statutory mandatory minimum sentence of 15 years
2
Ross actually pleaded guilty twice. Initially he pleaded guilty unconditionally,
but then moved to withdraw his guilty plea. The district court denied the motion, but
on appeal the parties jointly moved for a remand order allowing Ross to withdraw his
guilty plea and we granted that motion. See United States v. Ross, 11‐3742 (7th Cir. June
29, 2012).
No. 13‐2015 Page 5
—pursuant to the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), because he
had at least three prior violent felonies. In support, the PSR cited Ross’s attempted
robbery conviction, burglary convictions, and aggravated battery conviction—all from
the 1980s. Because the discharge letter he likely received in 1997 probably contained
restoration‐of‐rights language, Ross objected to the use of any of his prior convictions to
support application of the ACCA. The district court agreed that the 1992 convictions
definitely “would not be used for purposes of determining whether” the ACCA
applied, but the court concluded that the convictions from the 1980s did apply.
Therefore, the district court sentence Ross to 15 years’ imprisonment. Ross appeals his
conviction and sentence.
II. Analysis
On appeal, Ross contends that his conviction should be vacated for a number of
reasons. First, because the handgun discovered in Ross’s home was fruit of the
poisonous tree. Second, because he received a discharge letter in 1997 that contained
restoration‐of‐rights language that could have misled him into believing that his right to
possess a firearm was restored regardless of when his prior felony offenses occurred.
Third, because the government conceded that it could not prove that Ross knew that the
handgun had traveled in interstate commerce. Finally, Ross argues that his sentence
should be vacated because the district court erred by sentencing him under the ACCA
because his 1997 discharge letter contained restoration‐of‐rights language that rendered
all of his prior convictions irrelevant for ACCA purposes.
A. Ross’s Motion to Suppress the Handgun
Ross first argues that the district court should have granted his motion to
suppress the handgun discovered in his home because it was the fruit of Officer
Buchanan and his partner’s warrantless entry into his home. The district court
concluded that exigent circumstances justified the officers’ warrantless entry into Ross’s
home. “Warrantless searches of areas entitled to Fourth Amendment protection are
presumptively unreasonable, but the government may overcome this presumption by
demonstrating that, from the perspective of the officer at the scene, a reasonable officer
could believe that exigent circumstances existed and that there was no time to obtain a
warrant.” United States v. Schmidt, 700 F.3d 934, 937 (7th Cir. 2012). “In reviewing the
district court’s denial of a motion to suppress, we review factual findings for clear error
No. 13‐2015 Page 6
and issues of law de novo, and whether exigent circumstances existed is a mixed
question of fact and law that is reviewed de novo.” Id.
Exigent circumstances exist, for example, when officers are in hot pursuit of a
fleeing suspect, there is a need to render emergency assistance to an injured occupant or
to protect an occupant from imminent injury, or there is a need to prevent the imminent
destruction of evidence. Kentucky v. King, 131 S. Ct. 1849, 1856 (2011). In this case, the
district court was concerned that Ross would retrieve and use the handgun again after
shutting the door on Officer Buchanan and his partner. We have found exigent
circumstances justifying warrantless entries where officers fear that a gun may be fired
at them or others from within the dwelling. See United States v. Kempf, 400 F.3d 501, 503
(7th Cir. 2005) (finding exigent circumstances for warrantless entry into home where
officers believed the defendant could access potentially loaded gun inside); United States
v. Taylor, 179 F. App’x 957, 959 (7th Cir. 2006) (finding exigent circumstances for
warrantless entry into home “to ensure that no one posed a threat to them or anyone
else” where, although suspect was observed leaving the house, officers knew that a gun
was likely within the home); United States v. Craig, 12 F.3d 1101, at *6 (7th Cir. 1993)
(unpublished Table decision) (finding exigent circumstances for officers’ warrantless
entry into garage because the defendant “might have been able to shoot at them from
inside the garage or the house.”); see also United States v. Huddleston, 593 F.3d 596, 600
(7th Cir. 2010) (“[W]here police reasonably believe that their safety, or the safety of the
public, may be threatened, exigent circumstances exist.”).3
But we need not decide whether exigent circumstances existed here. As Ross’s
counsel correctly conceded at oral argument, the officers’ warrantless entry did not
causally contribute to the subsequently obtained search warrant. The police did not see
the handgun when they entered Ross’s home prior to obtaining the search warrant and
they did not find the handgun on Ross when they arrested him. Rather, the police
legally obtained the evidence that established probable cause to believe the handgun
was in the house. Therefore, the warrantless entry did not taint the search warrant that
led to the discovery of the handgun, and so the handgun was not the fruit of the
3
On the other hand, at the time of the warrantless entry, the officers apparently
did not know Ross was a felon. We are troubled by the idea that exigent circumstances
exist simply because law enforcement officers have probable cause to believe a person
has a firearm in his home—a right guaranteed by the Constitution—though, that Ross
had recently fired the handgun at the home of his former lover may alter the equation.
No. 13‐2015 Page 7
warrantless entry. See United States v. Etchin, 614 F.3d 726, 736‐38 (7th Cir. 2010) (a
detective’s entrance into a defendant’s apartment while another detective worked on a
warrant application did not require exclusion of evidence obtained while executing the
warrant because Segura’s “wholly unconnected” rule applied) (citing Segura v. United
States, 468 U.S. 796, 813–16 (1984)). Consequently, Ross was not entitled to have the
handgun suppressed.
B. Ross’s Motions to Dismiss the Indictment
Next, Ross contends that the district court should have granted his motions to
dismiss the indictment because his 1997 discharge letter probably contained restoration‐
of‐rights language that could have misled him into believing that his right to possess a
firearm was restored regardless of his prior felony offenses and because the government
could not prove that Ross knew that the handgun had traveled in interstate commerce.
“We review questions of law in a district court’s ruling on a motion to dismiss an
indictment de novo.” United States v. Sarraj, 665 F.3d 916, 920 (7th Cir. 2012) (quoting
United States v. White, 610 F.3d 956, 958 (7th Cir. 2010)). But we review the district
court’s factual determinations for clear error. United States v. Loera, 565 F.3d 406, 411 (7th
Cir. 2009).
Ross first argues that none of his felony convictions predating the 1997 discharge
letter could be used as predicate offenses for the felon‐in‐possession charge. “Any
conviction … for which a person … has had civil rights restored shall not be considered
a conviction for purposes of [a felon‐in‐possession charge], unless such … restoration of
civil rights expressly provides that the person may not ship, transport, possess, or
receive firearms.” 18 U.S.C. § 921(a)(20). Under our precedent, this “anti‐mousetrapping
provision” applies if the “the state sent [the defendant] a document stating that his
principal civil rights have been restored, while neglecting to mention the continuing
firearms disability ….” Buchmeier v. United States, 581 F.3d 561, 566–67 (7th Cir. 2009) (en
banc). But “inclusion of a date that ties the letter [sent by the state to the defendant] to a
single sentence implies that rights have been restored with respect to the convictions
underlying that sentence only.” United States v. Burnett, 641 F.3d 894, 896 (7th Cir. 2011).
Here, the evidence establishes that the discharge letter Ross likely received in
1997 probably contained restoration‐of‐rights language but did not mention Ross’s
continuing firearms disability. But the government offered unrebutted evidence that
such a letter would also have contained a reference to the specific date of completion of
No. 13‐2015 Page 8
his sentence that he was serving for his 1992 convictions. Accordingly, the 1997 letter
would only imply rights restored related to the 1992 convictions. And the discharge
letter Ross received in 1988, which related to his sentence for his 1985 conviction, did
not contain restoration‐of‐rights language. The evidence also established that any
discharge communication Ross received with respect to his sentences for his convictions
in the early 1980s would not have contained restoration‐of‐rights language.
Consequently, pursuant to Buchmeier and Burnett, the district court correctly concluded
that Ross’s 1992 convictions could not be used as predicate offenses for the felon‐in‐
possession charge, but that his 1980s convictions could be.
Ross argues that the rule from Burnett—that discharge letters are conviction‐
specific—should not apply to him because the letter that he likely received in 1997 is no
longer available. Perhaps Ross is concerned that his 1997 discharge letter may not have
actually referenced the specific date of completion of his sentence for his 1992
convictions. But Ross stipulated that he believed that his 1997 discharge letter was like
the sample one, and the sample letter included a reference to the sentence‐completion
date. The burden of proving that his rights have been restored is upon Ross. United
States v. Foster, 652 F.3d 776, 791 (7th Cir. 2011). Given, the government’s contrary (and
unrebutted) evidence, and Ross’ stipulation, Ross did not meet this burden.4
Alternatively, Ross argues that the government cannot prove that he knew that
the handgun had traveled in interstate commerce. But we have repeatedly rejected the
argument that, in a prosecution under § 922(g), the government must prove that the
defendant knew that the firearm had traveled in interstate commerce. See, e.g., Sarraj,
665 F.3d at 921 (“The interstate nexus requirement is a factual predicate, not a mens rea
element of the crime that would require proof of defendant’s knowledge of facts
supporting the nexus.”); United States v. Lindemann, 85 F.3d 1232, 1241 (7th Cir. 1996)
(“Thus it has consistently been held that for statutes in which Congress included an
‘interstate nexus’ for the purpose of establishing a basis for its authority, the
government … need not prove that the defendant knew the ‘interstate nexus’ of his
actions.”); United States v. Castor, 937 F.2d 293, 298 (7th Cir. 1991) (same). Ross urges us
to overturn this precedent, and cites a Supreme Court decision construing a penalty‐
4
Furthermore, Ross’s argument that Burnett ought not apply to cases in which
the discharge letter is unavailable would create perverse incentives because it would
put an offender who does not retain his discharge letter in a better position than one
who does.
No. 13‐2015 Page 9
enhancing provision that applies when an “offender ‘knowingly transfers, possesses, or
uses, without lawful authority, a means of identification of another person.’”
Flores‐Figueroa v. United States, 556 U.S. 646, 647 (2009) (quoting 18 U.S.C. § 1028A(a)(1)
(emphasis removed)). The Supreme Court concluded that “the statute requires the
Government to show that the defendant knew that the ‘means of identification’ he or she
unlawfully transferred, possessed, or used, in fact, belonged to ‘another person.’” Id.
But the statute that the Supreme Court construed in Flores‐Figueroa was worded very
differently than § 922(g)(1). Moreover, Flores‐Figueroa came down well before our
decision in Sarraj. Therefore, Flores‐Figueroa does not compel us to revisit Sarraj and its
progenitors. Santos v. United States, 461 F.3d 886, 891 (7th Cir. 2006) (“We require a
compelling reason to overturn circuit precedent.” (quotation marks omitted)). To the
extent Ross seeks to preserve this argument for possible review by the Supreme Court,
he has done so. Ross was not entitled to have the indictment dismissed.
C. Application of the ACCA
Finally, Ross argues that his sentence should be vacated because the district court
erred when it sentenced him pursuant to the ACCA. “The ACCA provides that anyone
who has ‘three previous convictions … for a violent felony or a serious drug offense, or
both, committed on occasions different from one another’ is an armed career criminal
and subject to a fifteen‐year mandatory minimum sentence.” Kirkland v. United States,
687 F.3d 878, 883 (7th Cir. 2012) (quoting 18 U.S.C. § 924(e)(1)). We review de novo the
district court’s application of the ACCA to Ross’s sentence. Id. at 882. “Any factual
findings related to [the defendant’s] prior convictions, however, are reviewed for clear
error.” Id. at 883.
Ross contends that because his 1992 convictions could not serve as predicate
offenses for his felon‐in‐possession charge, neither can the district court use them at
sentencing to invoke the ACCA. Certainly, a conviction for which a person has had his
civil rights restored does not count as a violent felony under the ACCA unless the
restoration of civil rights expressly provides that the person may not ship, transport,
possess, or receive firearms. Foster, 652 F.3d at 793. But the district court did not rely
upon Ross’s 1992 convictions in applying the ACCA. Rather, the PSR and the district
court excluded these convictions and relied solely upon four of Ross’s convictions from
the 1980s. Ross also argues that none of his convictions could be used to invoke the
ACCA. But this argument mirrors his argument in support of his motion to dismiss the
indictment, and consequently fails for the same reasons.
No. 13‐2015 Page 10
III. Conclusion
Ross was not entitled to suppression of the handgun or dismissal of his
indictment. Nor did the district court err in sentencing Ross pursuant to the ACCA.
Therefore, we AFFIRM Ross’s conviction and sentence.