United States v. George Goff

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-2998
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Southern
* District of Iowa.
George Ray Goff, *
* [UNPUBLISHED]
Appellant. *
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Submitted: December 24, 2008
Filed: January 9, 2009
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Before MURPHY, BYE, and BENTON, Circuit Judges.
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PER CURIAM.
George Goff appeals the district court’s1 entry of judgment upon a jury verdict
finding him guilty of being a felon in possession of a firearm and ammunition, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a) (Count I), and of possessing an
unregistered short-length shotgun, in violation of 26 U.S.C. §§ 5841, 5861(d), and
5871 (Count II). Counsel has moved to withdraw and filed a brief under Anders v.
California, 386 U.S. 738 (1967), and Goff has filed a pro se supplemental brief. The
briefs challenge the sufficiency of the evidence; argue that Almendarez-Torres v.
1
The Honorable Ronald E. Longstaff, United States District Judge for the
Southern District of Iowa.
United States, 523 U.S. 224 (1998), should be overruled; argue Goff’s sentence was
unreasonable or cruel and unusual; and assert a Speedy Trial Act violation.
First, we conclude that the evidence at the March 2007 jury trial was sufficient.
See United States v. Smith, 508 F.3d 861, 866 (8th Cir. 2007) (standard of review).
With regard to Count I, the testimony of two witnesses, whose credibility was for the
jury, established that Goff actually possessed the firearm. See United States v.
Montano, 506 F.3d 1128, 1133 (8th Cir. 2007) (this court does not review questions
involving credibility of witnesses; jury is free to believe testimony of any witness in
its entirety). The government also adduced evidence that the gun was loaded and that
Goff was carrying a shotgun shell, the parties stipulated that Goff had been convicted
of a crime punishable by imprisonment exceeding one year, and law enforcement
officials testified that the shotgun and ammunition had traveled in interstate
commerce. See United States v. Walker, 393 F.3d 842, 846-47 (8th Cir. 2005). In
addition, it was not material that the shotgun was temporarily inoperable, see 18
U.S.C. § 921(a)(3), or that one of the shells was not found until the second pat-down
search. Goff’s Count II conviction was amply established by testimony that the
overall length of the shotgun was less than 26 inches, and that it had not been
registered with the National Firearms Registry. See 26 U.S.C. §§ 5841 (registration
of firearms), 5845(a)(2) (“firearm” subject to registration includes weapon made from
shotgun if such weapon as modified has overall length of less than 26 inches), 5861(d)
(making it unlawful to possess firearm not registered with National Firearms
Registration); Smith, 508 F.3d at 866 & n.3 (government had to prove defendant
knowingly possessed unregistered firearm with characteristics that made it subject to
registration requirements).
As to the other arguments on appeal, this court has held that United States v.
Booker, 543 U.S. 220 (2005), did not overrule Almendarez-Torres, see United States
v. Strong, 415 F.3d 902, 906-07 (8th Cir. 2005), and we are bound by this decision,
see United States v. Wright, 22 F.3d 787, 788 (8th Cir. 1994). Furthermore, Goff’s
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trial began roughly 60 days after he was indicted and first appeared, well within the
70-day requirement in the Speedy Trial Act. See 18 U.S.C. § 3161(c).
Turning to Goff’s sentence, the denial of his motion for a sentencing departure
is unreviewable, because nothing indicates that the court was unaware of its authority
to depart, or that the court’s refusal to do so was based upon an unconstitutional
motive. See United States v. Frokjer, 415 F.3d 865, 874-75 (8th Cir. 2005). Also, the
district court discussed the 18 U.S.C. § 3553(a) factors, and Goff’s sentence at the
bottom of the Guidelines range is not unreasonable, see United States v. Hernandez,
518 F.3d 613, 616-17 (8th Cir. 2008), or cruel and unusual, see United States v. Weis,
487 F.3d 1148, 1154 (8th Cir. 2007) (“It is rare for a term of years within the
authorized statutory range to violate the Eighth Amendment.”).
Finally, we have independently reviewed the record under Penson v. Ohio, 488
U.S. 75, 80 (1988), and have found no nonfrivolous issues other than a slight
sentencing discrepancy discussed in the Anders brief. Specifically, after the district
court stated that it had found no reason to depart or vary and that it intended to
sentence Goff at the bottom of the advisory Guidelines imprisonment range of 262-
327 months, the court orally pronounced a 260-month sentence for Count I. The
written judgment, however, reflects a sentence of 262 months in prison, and we find
the written judgment to be the actual sentence, as it is consistent with the entire
sentencing pronouncement. See United States v. Tramp, 30 F.3d 1035, 1037 (8th Cir.
1994) (if actual verbal judgment is ambiguous, intent of sentencing court may be
construed from entire sentencing pronouncement).
Accordingly, we affirm the judgment of the district court. We also grant
counsel’s motion to withdraw on condition that counsel inform appellant about the
procedures for filing petitions for rehearing and for certiorari.
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