United States v. Todd C. Zastoupil , 223 F. App'x 539 ( 2007 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-2821
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United States of America, *
*
Appellee, *
*
v. * Appeal from the United States
* District Court for the
Todd Christopher Zastoupil, * District of North Dakota.
*
Appellant. * [UNPUBLISHED]
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Submitted: April 25, 2007
Filed: May 9, 2007
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Before SMITH, GRUENDER, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Todd Zastoupil appeals his conviction and sentence imposed by the district
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court after a jury found him guilty of sexual exploitation of minors, in violation of 18
U.S.C. § 2251(a) and (e) (Count 1), and possession of material involving the sexual
exploitation of minors, in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2) (Count 2).
In a brief under Anders v. California, 386 U.S. 738 (1967), counsel argues that the
district court miscalculated Zastoupil’s total offense level under the Guidelines, and
Zastoupil asserts other claims in pro se submissions.
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The Honorable Daniel L. Hovland, Chief Judge, United States District Court
for the District of North Dakota.
Following de novo review of the district court’s interpretation and application
of the Guidelines, see United States v. Kiel, 454 F.3d 819, 822 (8th Cir. 2006), we
find that the court correctly increased Zastoupil’s adjusted offense level of 35 by 4
levels to account for the two offenses against each of the two victims, see U.S.S.G.
§ 2G2.1(b)(1), § 3D1.2(d) (excluding § 2G2.1 offenses from grouping of closely
related counts), § 3D1.4(a) (to calculate combined offense level, count group with
highest offense level as one unit, and count one additional unit for each group that is
equally serious or from 1 to 4 levels less serious; for 3½-5 units, increase offense level
by 4 levels); Kiel, 454 F.3d at 822-23 (upholding multiple-count adjustment under
§ 3D1.4 and explaining that under § 2G2.1, concerning sexual exploitation of minors
by production of sexually explicit visual material, Chapter 3 Part D provisions
concerning multiple counts shall be applied as if exploitation of each minor had been
contained in separate count of conviction, and multiple counts involving exploitation
of multiple minors are not to be grouped together under § 3D1.2). Given Zastoupil’s
total offense level of 39, his Category V criminal history, and the resulting Guidelines
imprisonment range of 360 months to life, with a statutory maximum prison term of
50 years as to Count 1, and 20 years as to Count 2, the district court sentenced
Zastoupil to concurrent terms of 50 years in prison and 3 years of supervised release
on Count 1, and 20 years in prison and 3 years of supervised release on Count 2. In
so doing, the court found that the factors under 18 U.S.C. § 3553(a) justified a
sentence at the statutory maximum available under federal law, in part based on the
disturbing offense conduct and the statement of an evaluating doctor that Zastoupil
continued to demonstrate cognitive distortions and irrational thought patterns, and that
he presented a high level of serious risk to the community. We conclude that
Zastoupil’s sentence was not unreasonable. See United States v. Booker, 543 U.S.
220, 261-64 (2005).
Turning to the additional arguments raised in Zastoupil’s pro se supplemental
filings, we note that claims related to counsel’s performance before and during trial
should be asserted in a 28 U.S.C. § 2255 proceeding, where the record can be properly
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developed. See United States v. Hughes, 330 F.3d 1068, 1069 (8th Cir. 2003). In
addition, we reject Zastoupil’s argument that he was sentenced beyond the statutory
maximum, which he based in part on his contention that his prior state conviction for
corruption of a minor did not qualify as a prior sexual-exploitation conviction. See
18 U.S.C. §§ 2243(a) (sexual abuse of minor includes knowingly engaging in sexual
act with person 12-15 years old), 2251(e), 2252(b)(2). Further, Zastoupil’s arguments
concerning the scope of the Fourteenth Amendment and, relatedly, the criminal
court’s jurisdiction over him are frivolous.
We have reviewed the record independently under Penson v. Ohio, 488 U.S. 75,
80 (1988), and have found no nonfrivolous issues. Accordingly, we affirm, and we
grant counsel’s motion to withdraw.
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