United States v. Zibo Li, No. 16-4238 (8th Cir. 2017)

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Court Description: Per Curiam. Before Gruender, Benton, and Kelly, Circuit Judges] Criminal Case - Anders. Evidence was sufficient to support jury verdict for conspiring to traffic in unauthorized devices and possessing unauthorized devices notwithstanding defendant's denial of knowledge of the fraudulent means used by others to obtain the cellular telephones. The district court's application of a preponderance-of-the-evidence standard in sentence enhancements did not violate due process.
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United States Court of Appeals For the Eighth Circuit ___________________________ No. 16-4238 ___________________________ United States of America lllllllllllllllllllll Plaintiff - Appellee v. Zibo Li lllllllllllllllllllll Defendant - Appellant ____________ Appeal from United States District Court for the District of Minnesota - St. Paul ____________ Submitted: September 29, 2017 Filed: October 4, 2017 [Unpublished] ____________ Before GRUENDER, BENTON, and KELLY, Circuit Judges. ____________ PER CURIAM. Zibo Li was found guilty by a jury of conspiracy to traffic in unauthorized access devices, in violation of 18 U.S.C. § 371, and two counts of possessing unauthorized access devices, in violation of 18 U.S.C. § 1029(a)(3), (c)(1)(A)(i). Counsel appeals in a brief filed under Anders v. California, 386 U.S. 738 (1967), challenging the sufficiency of the evidence and the constitutionality of the sentence imposed by the district court.1 Having jurisdiction under 28 U.S.C. § 1291, this court affirms. The evidence at trial included the testimony of cooperating witnesses who participated at various levels in a scheme that involved selling fraudulently obtained cellular telephones for a profit. Testimony established that law enforcement officials searched Li’s home and seized unauthorized access devices and other incriminating evidence after intercepting boxes containing fraudulently obtained cellular telephones sent by Li from Minnesota bound for Hong Kong. This evidence was sufficient to support the jury verdict, notwithstanding Li’s denial of knowledge of the fraudulent means used by others to obtain the cellular telephones. See 18 U.S.C. § 1029(a)(3) (possession of unauthorized access devices); United States v. Jenkins-Watts, 574 F.3d 950, 959-60 (8th Cir. 2009) (standard of review and required proof for conspiracy conviction). Li’s due process rights were not violated by the district court’s application of a preponderance-of-the-evidence standard in sentence enhancements. See United States v. Mustafa, 695 F.3d 860, 862 (8th Cir. 2012) (per curiam). This court finds no nonfrivolous issues after reviewing the record in accordance with Penson v. Ohio, 488 U.S. 75, 80 (1988). The judgment is affirmed, and counsel’s motion to withdraw is granted. ______________________________ 1 The Honorable David S. Doty, United States District Judge for the District of Minnesota. -2-