United States v. Darwin Zoch


PER CURIAM OPINION FILED - THE COURT: James B. Loken, Pasco M. Bowman and Steven M. Colloton (UNPUBLISHED); [3904886-2] The motion to withdraw as counsel, filed by Mr. John P. Messina, is granted. [3971215] [12-1687]--[Edited 11/05/2012 by DMW]

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United States Court of Appeals For the Eighth Circuit ___________________________ No. 12-1687 ___________________________ United States of America lllllllllllllllllllll Plaintiff - Appellee v. Darwin Zoch lllllllllllllllllllll Defendant - Appellant ____________ Appeal from United States District Court for the Northern District of Iowa - Sioux City ____________ Submitted: October 30, 2012 Filed: November 5, 2012 [Unpublished] ____________ Before LOKEN, BOWMAN, and COLLOTON, Circuit Judges. ____________ PER CURIAM. After a jury found Darwin Zoch guilty of being a felon in possession of a firearm, the district court1sentenced him as an armed career criminal (ACC) to 180 1 The Honorable Mark W. Bennett, United States District Judge for the Northern District of Iowa. Appellate Case: 12-1687 Page: 1 Date Filed: 11/05/2012 Entry ID: 3971215 months in prison and 5 years of supervised release. See 18 U.S.C. §§ 922(g)(1) and 924(e). On appeal, Zoch’s counsel filed a brief under Anders v. California, 386 U.S. 738 (1967), challenging the sufficiency of the evidence and the ACC determination. The parties stipulated that Zoch had been convicted of one or more crimes punishable by imprisonment for a term exceeding one year, and that the firearms and ammunition in question traveled in interstate commerce prior to February 2010, when a warrant search of Zoch’s residence discovered the firearms and ammunition in Zoch’s bedroom and in other areas of his residence. This evidence, along with other testimony about Zoch’s handling of firearms for purposes such as hunting and target shooting, was sufficient. See United States v. Brown, 422 F.3d 689, 691-92 (8th Cir. 2005) (elements to be proved for felon-in-possession conviction); United States v. Sianis, 275 F.3d 731, 733-34 (8th Cir. 2002) (constructive possession is established when defendant has dominion over premises where firearm is located). We also conclude that Zoch was correctly found to be subject to the ACC’s fifteen-year minimum sentence, which does not contain a time limit for predicate offenses. See United States v. Rodriguez, 612 F.3d 1049, 1056-57 (8th Cir. 2010) (rejecting due process challenge to ACC minimum sentence because two predicate offenses were twenty years old). Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75, 80 (1988), we find no nonfrivolous issues. We affirm the judgment of the district court, and we grant counsel’s motion to withdraw. ______________________________ -2- Appellate Case: 12-1687 Page: 2 Date Filed: 11/05/2012 Entry ID: 3971215

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