# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued July 9, 2013

Decided July 24, 2013

Before

FRANK H. EASTERBROOK, Chief Judge

RICHARD A. POSNER, Circuit Judge

ANN CLAIRE WILLIAMS, Circuit Judge

No. 12

‐ 3930

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee

,

v.

JOSE A. MEDINA

‐ MENDOZA

, Defendant

‐ Appellant

. Appeal from the United States District

Court for the Western District of Wisconsin.

No. 12

‐ CR

‐ 33

‐ BBC

‐ 01

Barbara B. Crabb,

Judge

.

O R D E R

Jose Medina

‐ Mendoza appeals from the concurrent sentences he received for

possessing a firearm as an unlawful user of marijuana, 18 U.S.C. § 922(g)(3), and as an alien

in the United States without authorization, id. § 922(g)(5). He argues that the district court

erred in finding that he perjured himself at trial and, as a result, misapplied an upward

adjustment for obstruction of justice. See U.S.S.G. § 3C1.1. That argument is frivolous, but

after briefing was finished, the government submitted a letter, see F ED

. R. A PP

. P. 28(j),

conceding that the district court committed plain error by entering judgment on both

§ 922(g) counts. We uphold the increase for obstruction of justice but vacate the judgment NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 12

‐ 3930 

### Page 2

and remand for the district court to merge the two convictions and reenter the same

sentence on one count only.

Police officers went to the home of Medina

‐ Mendoza with a warrant to arrest him

for assaulting his former girlfriend. They found Medina

‐ Mendoza hiding in his bedroom

closet. After he consented to a search of the bedroom, the officers discovered a 9 mm pistol

and two loaded magazines under his mattress. The police also found marijuana, drug

paraphernalia, and false identification cards. The gun had been stolen from a store in

Janesville, Wisconsin.

After receiving Miranda warnings, Medina

‐ Mendoza gave a recorded statement. He

first insisted that he had found the gun, ammunition, and drug paraphernalia at a

junkyard, but eventually he said “the truth” was that he bought the gun from a

Puerto Rican man in a town near Janesville and was “97% sure” it was stolen. He also

admitted buying and using marijuana and conceded he is a Mexican national in the United

States without permission. In a later interview Medina

‐ Mendoza repeated his story about

buying the gun from a Puerto Rican man.

The government charged Medina

‐ Mendoza in separate counts for possessing the

9 mm pistol in violation of 18 U.S.C. § 922(g)(3) and (g)(5). Both counts allege possession of

the 9 mm on the day it was discovered in his bedroom. At trial Medina

‐ Mendoza denied

buying the gun and instead insisted that it belonged to a friend named Robinson; he

explained that Robinson had placed the pistol and magazines under his pillow without him

knowing while he was giving Robinson a haircut. (On the defendant’s witness list

Robinson’s first name is spelled as “Shanton,” but at trial Medina

‐ Mendoza gave the name

as “Shantelle.” ) Robinson forgot the gun, Medina

‐ Mendoza continued, and when Robinson

telephoned later to alert him about its presence, the defendant hid the gun and magazines

under his mattress and told Robinson to retrieve them the next day. The police, though, got

there first. When the prosecutor confronted Medina

‐ Mendoza with his previous

confessions to the police, he explained that he had lied to the officers because at the time he

did not know Robinson’s full name and thus feared that the police would not believe his

story. The jury found Medina

‐ Mendoza guilty on both counts.

The day after the guilty verdicts, the prosecutor discovered a voice message that had

been left on her office telephone during the trial:

Hi. This is Shanton Robinson. I’m calling on behalf of Jose Medina

‐

Mendoza. He’s trying to pay me to take his case and I don’t want to do it. He

is steady having people to call me and asking if I’m going to take the case

from him, but I can’t do it because I’m on probation. And he trying to make

me say, like, the gun was mine, but it’s not. It’s really his. He just trying toNo. 12

‐ 3930 

### Page 3

get out. He don’t want to be shaken up, so he trying to make me take a case

that’s not mine. So I was just calling to let you know. My name is Shanton

Robinson. All right. Thank you.

The prosecutor notified defense counsel that she intended to play the message at

sentencing. That message prompted the probation officer who drafted Medina

‐ Mendoza’s

presentence report to recommend a two

‐ level upward adjustment for obstruction of justice.

The defendant objected that he did not obstruct justice by testifying at trial that Robinson

had left the gun in his bedroom.

At sentencing the prosecutor argued that the defendant’s post

‐ arrest confessions, the

theft of the gun in Janesville, and the voice message left by Robinson all supported the

upward adjustment by establishing that Medina

‐ Mendoza had lied at trial about the gun

belonging to Robinson. When the district court asked if Medina

‐ Mendoza objected to the

government playing the voice message, defense counsel responded, “I don’t object.” The

government played the message, and the court invited defense counsel to comment on it.

He did:

The only thing that I can say, Your Honor, and I will say this as an

officer of the court because I don’t have a recording, is that I did speak very

briefly with Mr. Robinson a few days before trial. He did tell me that it was

his gun and that he was coming to testify to such.

Obviously he’s changed his story and I have not been able to reach

him since. I don’t know if he’s necessarily credible one way or the other and I

also don’t know—I guess we’ll never know why the jury found Mr. Medina

‐

Mendoza guilty, whether it was they believed that he procured the firearm in

Middleton and in Janesville or whether or not it was this third party’s gun

that he simply touched and held, which as the Court indicated and read to

the jury, would have constituted possession.

Neither party called Robinson to testify or said that he had been subpoenaed.

The district court found that Medina

‐ Mendoza had perjured himself at trial

concerning the source of the gun. The judge reasoned that the defendant’s trial testimony

differed from his recorded statements to law enforcement and was contradicted by the

voice message. The court applied the increase under § 3C1.1 and adopted the probation

officer’s remaining guidelines calculations, which yielded an imprisonment range of 27 to

33 months. On each count the court sentenced Medina

‐ Mendoza to 30 months in prison

followed by a year of supervised release, with the sentences running concurrently.No. 12

‐ 3930 

### Page 4

Medina

‐ Mendoza raises a single claim in his appellate brief: that the district court

erred in applying the 2

‐ level upward adjustment for obstruction of justice. The government

disagrees with that contention but, on its own, concedes that the entry of separate

convictions and sentences on the two § 922(g) counts was error. See United States v. Bloch

,

No. 12

‐ 2784, 2013 WL 2149888, at *4 (7th Cir. May 20, 2013); United States v. Parker

, 508 F.3d

434, 440 (7th Cir. 2007).

In the district court Medina

‐ Mendoza did not challenge his two convictions as

multiplicitous. But it was plain error for the district court to sentence him more than

once—even to concurrent sentences—because the § 922(g) counts are based on his single

possession of the same gun, and the second conviction is presumed to have collateral

consequences. See Bloch

, 2013 WL 2149888, at *4; Parker

, 508 F.3d at 439–41. For example if

Medina

‐ Mendoza violates the conditions of his concurrent terms of supervised release, he

would be subject to a total of four years reimprisonment instead of two. See 18 U.S.C.

§§ 924(a)(2), 3583(e)(3), 3559(a)(3); United States v. Snyder

, 635 F.3d 956, 960 (7th Cir. 2011);

United States v. Neal

, 512 F.3d 427, 439 n.11 (7th Cir. 2008); United States v. Deutsch

, 403 F.3d

915, 918 (7th Cir. 2005). The multiplicitous convictions should be merged and judgment

entered on a single count. See Bloc h, 2013 WL 2149888, at *4; Parker

, 508 F.3d at 442.

Although at oral argument counsel for Medina

‐ Mendoza objected to this course of action,

he since has filed a letter agreeing that the two counts should be merged.

On remand the district court shall reinstate the same sentence because neither of

Medina

‐ Mendoza’s two challenges to the finding of obstruction has merit. He first argues

that the district court erred in finding that he perjured himself at trial because, the

defendant says, the government did not call any witness to directly contradict or “flatly

deny” his testimony about the source of the gun. But that view of the evidence is not quite

accurate; the government introduced Medina

‐ Mendoza’s post

‐ arrest confessions, which

were substantive evidence (and not merely impeachment of his trial testimony). See F ED

. R.

E VID

. 801(d)(2)(A). In other words, the defendant himself was the witness who directly

contradicted his trial testimony. See United States v. Young

, 613 F.3d 735, 749 (8th Cir. 2010);

United States v. Raplinger

, 555 F.3d 687, 694 (8th Cir. 2009); United States v. Cook

, 76 F.3d 596,

605–06 (4th Cir. 1996); United States v. Acuna

, 9 F.3d 1442, 1445 (9th Cir. 1993). Not that it

matters, however, because the government was not required to produce a witness who

would call Medina

‐ Mendoza a liar; a perjury finding underlying an upward adjustment for

obstruction of justice can rest on circumstantial evidence. See United States v. Dinga

, 609 F.3d

904, 909 (7th Cir. 2010); United States v. Griffin

, 310 F.3d 1017, 1021, 1024 (7th Cir. 2002);

United States v. Sisti

, 91 F.3d 305, 313 (2d Cir. 1996); United States v. Onumonu

, 999 F.2d 43,

46–47 (2d Cir. 1993); United States v. Barbosa

, 906 F.2d 1366, 1370 (9th Cir. 1990). “[S]uch

findings do not require directly contradictory testimony but may spring from a solid

foundation of circumstantial evidence.” United States v. Akitoye

, 923 F.2d 221, 229 (1st Cir.

1991). The district court’s finding that Medina

‐ Mendoza perjured himself by blamingNo. 12

‐ 3930 

### Page 5

Robinson for the gun is supported not only by the defendant’s confessions that he

purchased the gun near Janesville, but also by its theft from that city and Robinson’s voice

message stating that Medina

‐ Mendoza had pressured him to falsely claim ownership of the

gun.

Medina

‐ Mendoza also makes the equally frivolous argument that the district court

erroneously relied on Robinson’s voice message since that recording is hearsay from a

witness not subject to cross

‐ examination. The defendant waived this contention, however,

when his lawyer (who also represents him on appeal) affirmatively stated at sentencing

that he did not object to the prosecution’s introduction of the voice message

. See United

States v. Schalk

, 515 F.3d 768, 774 (7th Cir. 2008); United States v. Brodie

, 507 F.3d 527, 532 (7th

Cir. 2007); United States v. Redditt

, 381 F.3d 597, 602 (7th Cir. 2004).

But even if the hearsay argument had not been waived, it would lack merit because

at sentencing a district court is not bound by the rules of evidence and may consider any

reliable evidence, including hearsay, so long as the defendant has an opportunity to rebut

that evidence. See F ED

. R. E VID

. 1101(d)(3); United States v. Grigsby

, 692 F.3d 778, 788 (7th Cir.

2012); United States v. Ali

, 619 F.3d 713, 720 (7th Cir. 2010); United States v. Cooper

, 591 F.3d

582, 591 (7th Cir. 2010); United States v. House

, 551 F.3d 694, 700 (7th Cir. 2008); United States

v. Eskridge

, 164 F.3d 1042, 1045 (7th Cir. 1998); United States v. Nelson

, 39 F.3d 705, 710 (7th

Cir. 1994); United States v. Johnson

, 997 F.2d 248, 254 (7th Cir. 1993); United States v. Hubbard

,

929 F.2d 307, 309–10 (7th Cir. 1991). Medina

‐ Mendoza did not question the authenticity of

the voice message and passed over the chance to refute its content. He knew from the

presentence report and the prosecutor’s e

‐ mail that the voice message would be used at

sentencing, yet counsel never asserted that he had subpoenaed, or even tried to subpoena,

Robinson for trial or sentencing.

Rather, Medina

‐ Mendoza questioned the reliability of Robinson’s voice message

only through counsel’s representation that Robinson had told him a few days before trial

“that it was his gun and that he was coming to testify to such.” And since then, counsel

continued, he had “not been able to reach” Robinson. Yet at sentencing counsel did not call

Medina

‐ Mendoza as a witness to deny pressuring Robinson to take the rap for the gun

. The

district court did not abuse its discretion by crediting the voice message, a recorded out

‐ of

‐

court statement about a topic within the speaker’s knowledge.

Accordingly, we VACATE the judgment and REMAND with directions to merge

the § 922(g) counts and reinstate the conviction and sentence on one count only.