United States of America v. Junior Emilio Roldan Marin

United States Court of Appeals
For the Eighth Circuit
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No. 21-1016
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United States of America
Plaintiff - Appellee
v.
Junior Emilio Roldan Marin
Defendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Eastern
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Submitted: October 20, 2021
Filed: April 20, 2022
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Before SMITH, Chief Judge, WOLLMAN and BENTON, Circuit Judges.
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BENTON, Circuit Judge.
In October 2016, Junior Emilio Roldan-Marin pled guilty to domestic abuse
assault in violation of Iowa Code §§ 708.2A(1) and 708.2A(2)(c). Roldan-Marin
and the victim had resided together in an intimate relationship. After repeatedly
punching her, he struck her ankle with a crowbar. A no-contact order was entered.

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In December 2018, a neighbor and her co-worker saw Roldan-Marin carrying
what “looked like a gun” in front of a residence in Iowa City. Confronted by police,
he admitted having a shotgun in the residence, and a small bag of marijuana and a
“one-hitter” smoking pipe on his person. Police searched the residence, discovering
a shotgun and ammunition.
Roldan-Marin was charged with illegal possession of a firearm under 18
U.S.C. § 922(g). The indictment alleged he fell within three categories of persons
prohibited from possessing a firearm: (1) an “unlawful user” of a controlled
substance under § 922(g)(3); (2) a person subject to a restraining order involving an
intimate partner under § 922(g)(8); and (3) a person previously convicted of a
“misdemeanor crime of domestic violence” under § 922(g)(9). The jury convicted,
finding him a prohibited person within all three categories. Roldan-Marin filed a
post-trial motion requesting acquittal or a new trial. The district court1 imposed a
66-month sentence and denied the motion.
Roldan-Marin’s appeal claims: insufficient evidence he knew he was a
prohibited person under any category; the prosecutor violated his right to a fair trial
by misstating the presumption of innocence; and his sentence was improperly
enhanced because the Iowa assault conviction is not a “crime of violence.” Having
jurisdiction under 28 U.S.C. § 1291, this court affirms.
I.
Firearms and ammunition may not be possessed by any person
who is subject to a court order that (A) was issued after a hearing of
which such person received actual notice, and at which such person had
an opportunity to participate; [and] (B) restrains such person from
harassing, stalking, or threatening an intimate partner of such person[.]
1 The Honorable John A. Jarvey, Chief Judge, United States District Court for
the Southern District of Iowa, now retired.

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18 U.S.C.A. § 922(g)(8) (alterations added). The government must prove the
defendant “knew he belonged to the relevant category of persons barred from
possessing a firearm.” Rehaif v. United States, 139 S. Ct. 2191, 2200 (2019).
According to Roldan-Marin, there was insufficient evidence he possessed a firearm
while knowingly subject to a no-contact order involving an intimate partner that was
issued after a hearing where he had the opportunity to participate. This court reviews
the sufficiency of the evidence de novo, examining the record most favorably to the
verdict and allowing the government all reasonable inferences from the evidence.
United States v. Birdine, 515 F.3d 842, 844 (8th Cir. 2008).
Roldan-Marin first argues that the government did not prove he and the victim
were intimate partners. An “individual . . . who cohabitates or has cohabited with
the person” is an “intimate partner.” 18 U.S.C. § 921(a)(32). The Iowa assault
complaint—in evidence here—alleged that Roldan-Marin and the victim resided
together. Also in evidence is the no-contact order itself, with the state judge’s
finding that Roldan-Marin and the victim met the federal definition of intimate
partners. This was sufficient evidence of an intimate partnership.
Second, Roldan-Marin argues that the government failed to present evidence
that the no-contact order was issued after a hearing where he had an opportunity to
participate. This argument, not raised before the district court, is reviewed for plain
error. See Davis v. United States, 140 S. Ct. 1060, 1061 (2020) (“When a criminal
defendant fails to raise an argument in the district court, an appellate court ordinarily
may review the issue only for plain error.”), citing Fed. Rule Crim. Proc. 52(b).
See also United States v. Kaspereit, 994 F.3d 1202, 1211 (10th Cir. 2021)
(reviewing, for plain error, defendant’s argument that “the jury had insufficient
evidence to find he had an opportunity to participate in a hearing on the protective
order”). The no-contact order here was issued as part of the judgment agreed to by
Roldan-Marin in his guilty plea. Roldan-Marin does not dispute that a sentencing
hearing occurred. Instead, citing United States v. Bramer, 956 F.3d 91, 98 (2d Cir.
2020), he claims insufficient evidence he “understood that he was permitted to
interpose objections or make an argument as to why an order of protection should

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not be imposed” at that hearing. But unlike Bramer, Roldan-Marin was represented
by counsel. Under these circumstances, Bramer—where a no-contact order was
issued after arraignment of a defendant not represented by counsel—actually
supports finding an opportunity to participate. See Bramer, 956 F.3d at 98 (“Where
counsel is present on behalf of the defendant, absent a direct order from the court
prohibiting him or her from speaking, counsel would understand that attorneys do
not need an explicit invitation to object or speak on behalf of their clients.”). The
jury had sufficient evidence for this “minimal” requirement. See United States v.
Young, 458 F.3d 998, 1009 (9th Cir. 2006) (“Joining the Fifth and Seventh Circuits,
we agree that the plain text of the statute indicates that the ‘opportunity to
participate’ requirement is a minimal one.”). See also United States v. Boyd, 999
F.3d 171, 181 (3d Cir. 2021); Kaspereit, 994 F.3d at 1212 n.6. There is no plain
error about Roldan-Marin’s opportunity to participate.
Third, Roldan-Marin argues that, because the no-contact order could be
“modified, terminated, or extended by further written order of the court,” the
government was required to prove it was still in effect when he possessed the
firearm. To the contrary, Iowa presumes that a no-contact order “has force and effect
until it is modified or terminated by subsequent court action.” Iowa Code §
664A.3(3). In Iowa, the absence of a record can prove the nonoccurrence of an act
or event, here the nonoccurrence of any modification or termination of the no-
contact order. Iowa Code § 622.28(2). Moreover, “the law generally frowns on
requiring a party to prove a negative.” United States v. Ollie, 442 F.3d 1135, 1143
(8th Cir. 2006). See Rogers v. United States, 367 F.2d 998, 1000 (8th Cir. 1966)
(rejecting argument that the government was required to present evidence that
defendant did not have a permit to sell wild ducks and geese) (“It was not necessary
for the government to prove a negative. The Supreme Court, when faced with a
similar evidentiary problem in a criminal prosecution, recognized that: ‘The general
principle, and we think the correct one, is that it is not incumbent on the prosecution
to adduce positive evidence to support a negative averment the truth of which is
fairly indicated by established circumstances and which, if untrue, could be readily
disproved by the production of documents or other evidence probably within the

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defendant’s possession or control.’”), quoting Rossi v. United States, 289 U.S. 89,
91-92 (1933).
Fourth, Roldan-Marin stresses that, before his arrest for possessing the
shotgun and ammunition, he received a discharge-from-probation order saying he
would “no longer be held to answer for this crime.” He asserts he reasonably
believed that the no-contact order was no longer in effect, and that he expressed that
belief to officers when arrested. However, Roldan-Marin’s guilty plea—as well as
the state court order accepting his guilty plea and entering judgment—made clear
that the no-contact order would “remain in effect” after his term of probation ended.
As the district court ruled, these documents “plainly stated that Roldan Marin would
be on supervised probation for a period of three years and the no contact order would
be extended for a period of five years. The documents made clear that the
timeframes for probation and the no contact order were never the same.”
Viewed most favorably to the verdict, the evidence was sufficient to find that
Roldan-Marin possessed a firearm with knowledge that he was subject to a no-
contact order involving an intimate partner, in violation of § 922(g)(8).2
II.
Roldan-Marin alleges prosecutorial misconduct. To obtain a reversal, he must
show that the prosecutor made improper remarks that prejudiced his rights in
obtaining a fair trial. United States v. Crumley, 528 F.3d 1053, 1064 (8th Cir. 2008).
For prejudice, this court looks to (1) the cumulative effect of the improprieties, (2)
the strength of the evidence against the defendant, and (3) whether the district court
took any curative action. United States v. Darden, 688 F.3d 382, 388 (8th Cir.
2 Since Roldan-Marin’s conviction can be sustained on any one of the § 922(g)
categories, this court need not address whether there was insufficient evidence he
knew he was a prohibited person under §§ 922(g)(3) and 922(g)(9); whether the term
“unlawful user” in § 922(g)(3) is unconstitutionally vague; and whether his Iowa
assault conviction is a “misdemeanor crime of domestic violence” under § 922(g)(9).

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2012). When, as here, a defendant did not object to the improper remarks, “we
review only for plain error and reverse only under exceptional circumstances.” Id.
Under plain error review, a defendant must demonstrate “a reasonable probability
that the outcome would have been different absent the alleged error.” Id. at 388-89.
In closing argument at trial, the prosecutor said:
The first thing I want to touch on is what [defense counsel] ended with,
that we are back to where we started yesterday with the presumption of
innocence. That’s entirely incorrect. You have had a day’s worth of
evidence that has shown that Mr. Roldan Marin committed this offense.
We’re not back to where we were yesterday that there was no evidence
yet presented. The presumption of innocence only applies as long as
you have not heard evidence proving his guilt. Today we are in a much
different position because you have heard that evidence.
These remarks were improper. In a similar case, the prosecutor told the jury that the
presumption of innocence had been “removed” and was no longer “protecting and
shielding” the defendant. Kellogg v. Skon, 176 F.3d 447, 451 (8th Cir. 1999). “This
statement was improper, a misstatement of law. The presumption remains with the
defendant through every stage of the trial, most importantly, the jury’s deliberations.
It is extinguished only upon the jury’s determination of guilt beyond a reasonable
doubt.” Id. See United States v. Grassrope, 342 F.3d 866, 870 (8th Cir. 2003) (“As
any federal prosecutor ought to realize, the presumption of innocence abides with a
criminal defendant throughout his trial.”); Crumley, 528 F.3d at 1065 (prosecutor’s
remark that the presumption of innocence “can be removed by fact, by proof” was
improper).
Roldan-Marin, however, has not shown that the improper remarks prejudiced
his rights in obtaining a fair trial. All three factors support this conclusion. First,
because Roldan-Marin challenges a single remark by the prosecutor, there was no
“cumulative effect” of impropriety. See United States v. Hernandez, 779 F.2d 456,
460 (8th Cir. 1985) (“[O]n appeal defendant raises only the single remark made

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during the opening statement. Thus, there is no ‘cumulative effect’ problem in this
case.”) (alteration added). See also United States v. Kopecky, 891 F.3d 340, 343
(8th Cir. 2018) (no cumulative effect where challenged remarks “constituted a
single, short, isolated exchange in the context of a several-day trial”).
Second, the evidence against Roldan-Marin was strong. A firearm he
admitted possessing was found in his home while he was subject to a court order
involving an intimate partner. The order was served on him by law enforcement and
explained to him by his attorney. The order plainly stated it would be in effect for
five years—two years longer than his probationary period. He presented no
evidence that the court order was modified or terminated. In light of this evidence,
“the improper remarks could not reasonably have affected the jury’s verdict.”
Grassrope, 342 F.3d at 871. See also Darden, 688 F.3d at 390 (“Even though these
rebuttal remarks were improper, our review in this case is only for plain error . . . .
Darden must therefore demonstrate a reasonable probability that the outcome would
have been different absent the alleged error. Considering the record as a whole, we
conclude Darden cannot meet this standard because of . . . the large amount of
evidence supporting Darden’s convictions.” (citation omitted)).
Third, the district court took curative action. It instructed the jury:
The presumption of innocence alone is sufficient to find a defendant
not guilty and can be overcome only if the government proves, beyond
a reasonable doubt, each element of the particular crime charged. There
is no burden upon a defendant to prove that he is innocent.
The district court also instructed jurors not to accept contradictory statements by the
parties: “Counsel will quite properly refer to some of the governing rules of law in
their arguments. If, however, any difference appears to you between the law as
stated by counsel and that stated by the court in these instructions, you of course are
to be governed by the instructions.” Jury instructions like these cured misstatements

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about the presumption of innocence in the Crumley,3 Kellogg,4 and Grassrope5
cases.
All three prejudice factors weigh against Roldan-Marin. Here, on plain error
review, no “exceptional circumstances” warrant reversal.
III.
Roldan-Marin also challenges his sentence. He argues the district court erred
by increasing his base offense level because his Iowa assault conviction was not a
“crime of violence” under U.S.S.G. § 2K2.1(a)(4)(A).
3Crumley, 528 F.3d at 1065-66 (on plain error review) (“[In Kellogg,] we held
that the improper statement was not grounds for reversal because the district court
remedied the error by giving a proper instruction, following closing arguments.
Likewise, in this case, before submitting it to the jury, the district court gave a proper
instruction with regard to Myers’s and Crumley’s rights: ‘You know that the law
presumes each defendant, and I instruct you that each defendant must be presumed
to be innocent of the crime charged . . . . The presumption of innocence alone is
therefore sufficient to acquit a defendant.’ Moreover, Crumley’s attorney reminded
jurors at the start of his closing argument that ‘regardless what the prosecutor has
shown you on his machine here as what the law is, it’s the judge’s instructions that
are the law you are to follow.’ The court’s proper instruction of the law, enhanced
by defense counsel’s statement, cured the prosecutor’s improper statement.
Consequently, the error does not require reversal.” (alteration added)).
4Kellogg, 176 F.3d at 451.
5Grassrope, 342 F.3d at 871 (“Given after the closing arguments, the
instructions themselves were without error. They clearly instructed that the
presumption of innocence alone is sufficient to find the defendant not guilty, that the
presumption of innocence can be overcome only if the government proves, beyond
a reasonable doubt, each essential element of the crimes charged, and that the
defendant has no burden to prove innocence.”).

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Even if Roldan-Marin were correct, any base-offense miscalculation was
harmless error. “Incorrect application of the Guidelines is harmless error where the
district court specifies the resolution of a particular issue did not affect the ultimate
determination of a sentence.” United States v. Straw, 616 F.3d 737, 742 (8th Cir.
2010). Here, the district court stated:
The sentence imposed here is the same sentence regardless of how the
guideline issues were resolved. As I said earlier, the importance of the
enhancement to the base offense level is to punish people more severely
for possessing a firearm if they’ve done so after committing a crime of
violence. Regardless of the analysis that we now go through pursuant
to the Supreme Court and precedent to determine this term, crime of
violence, end quote, there is no question but that he has engaged in the
kind of violent behavior that makes it more undesirable for him to
possess a firearm, and for that reason the Court would have imposed
the same sentence regardless of how the guideline issues were resolved.
Roldan-Marin responds that allowing a district court to rely on a prior
conviction that may not qualify as a crime of violence under U.S.S.G. § 2K2.1(a)
defeats the purpose of the categorical approach. However, “[w]e have consistently
rejected this type of argument.” Id. at 744 (alteration added) (rejecting defendant’s
argument that upward variance was unjustified because the guidelines already
“contemplated all the aggravating factors”). This court has “stated repeatedly that
factors that have already been taken into account in calculating the advisory
guidelines range can nevertheless form the basis of a variance.” United States v.
Thorne, 896 F.3d 861, 865 (8th Cir. 2018).
This court affirms sentences where the district court considers a past
conviction relevant under the factors listed in 18 U.S.C. § 3553(a), even if the
conviction is not a “crime of violence” under U.S.S.G. § 2K2.1(a). For instance, in
United States v. Thibeaux, 784 F.3d 1221 (8th Cir. 2015), the defendant and the
government agreed that, because the defendant’s prior felon-in-possession offense
was not a “crime of violence,” the district court incorrectly applied a § 2K2.1(a)
enhancement. Thibeaux, 784 F.3d at 1227. However, the district court made clear

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that, even if the enhancement did not apply, “my sentence would still be the same in
this case under the 18 U.S.C. § 3553(a) analysis.” Id. This court affirmed:
Incorrect application of the Guidelines is harmless error where the
district court specifies the resolution of a particular issue did not affect
the ultimate determination of a sentence. The § 3553(a) factors the
district court emphasized were Thibeaux’s substantial criminal history
over an extensive period of time, and the fact that in serving every
previous felony conviction his probation, parole, or supervised release
had been revoked, showing a lack of respect for the law and the need
for a longer sentence to deter further criminal activity. The court clearly
identified the contested crime-of-violence issue and adequately
explained its overall sentence applying 18 U.S.C. § 3553(a). Therefore,
the procedural error was harmless.
Thibeaux, 784 F.3d at 1227 (citations omitted).
Here, the district court stated, “In fashioning an appropriate sentence, I have
considered each of the factors found in Title 18, United States Code section 3553(a),
which means I have considered the nature and circumstances of the offense as well
as the history and characteristics of the defendant.” The court continued
considering: Roldan-Marin’s criminal history (that “went on for pages”), the
recency of his last conviction, his behavior in jail, the need for adequate deterrence
to criminal conduct, the need to protect the public from further crimes, the need to
promote respect for the law, and the need to avoid unwarranted sentencing disparity.
Finally, the court stated it looked to the sentencing guidelines “as an important,
though not in any way controlling, factor to be considered.” This “detailed
explanation for the sentence imposed makes clear that the judge based the sentence
he or she selected on factors independent of the Guidelines.” United States v. Dace,
842 F.3d 1067, 1069 (8th Cir. 2016). See also United States v. Drew, 9 F.4th 718,
725-26 (8th Cir. 2021) (affirming upward variance where the district court
“considered the § 3553(a) factors” and “mentioned Drew’s earlier in-custody
conduct[,] his criminal history, the timing of the felon-in-possession offense[,] the
need for respect for the law, and public safety” (alterations added)).

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The increase to Roldan-Marin’s base offense level under § 2K2.1(a), if error
at all, was harmless.
* * * * * * *
The judgment is affirmed.
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