United States v. Requejo

FILED
United States Court of Appeals
Tenth Circuit
February 10, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 09-8005
v.
(D.C. No. 1:08-CR-00169-ABJ-2)
(D. Wyo.)
CHRISTOPHER MICHAEL
REQUEJO,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before KELLY, BRISCOE, and HOLMES, Circuit Judges.
Defendant-Appellant Christopher Michael Requejo was indicted for aiding
and abetting the theft of a firearm from a federally licensed firearms dealer, in
violation of 18 U.S.C. §§ 924(m) and 2(a), and for possession of a firearm by a
convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Mr.
Requejo proceeded to trial, testified on his own behalf, and was found guilty by a
*
This Order and Judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Federal Rule of Appellate
Procedure 32.1 and Tenth Circuit Rule 32.1. After examining the briefs and the
appellate record, this three-judge panel determined unanimously that oral
argument would not be of material assistance in the determination of this appeal.
See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The case is therefore ordered
submitted without oral argument.
jury. The district court sentenced him to 63 months of imprisonment, 36 months
of supervised release, a fine of $500, and a special assessment of $200. Mr.
Requejo appeals his conviction and sentence. We have jurisdiction under 28
U.S.C. § 1291 and 18 U.S.C. § 3742(a).
On appeal, Mr. Requejo’s counsel filed an Anders brief and seeks leave to
withdraw. See Anders v. California, 386 U.S. 738, 744 (1967). In the Anders
brief, Mr. Requejo’s counsel indicates that Mr. Requejo seeks to challenge the
sufficiency of the evidence supporting his conviction and the reasonableness of
his sentence, but counsel finds both claims to be wholly lacking in merit. Mr.
Requejo filed a response in which he argues these issues, and also claims
ineffective assistance of counsel. The government declined to file a brief. Based
on our independent review of the record, see id., we conclude that this appeal
raises no non-frivolous issues. Thus, we affirm the conviction and sentence,
dismiss the ineffective assistance claim without prejudice, and grant counsel’s
motion to withdraw.
BACKGROUND 1
On July 8, 2008, Mr. Requejo and Matthew Richard Escobedo entered the
Lincolnway Pawn Shop, a federally licensed firearms dealer, in Cheyenne,
Wyoming. Although Messrs. Escobedo and Requejo browsed the aisles looking at
1
We set forth the evidence in the light most favorable to the
prosecution because this appeal arises from a jury verdict. United States v.
LaHue, 261 F.3d 993, 996 n.1 (10th Cir. 2001).
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various items, they had previously formulated a plan to steal a 9mm firearm from
a glass display case in the shop and trade it for illegal narcotics. The plan
required Mr. Requejo to distract the clerk by asking about car audio equipment.
When the clerk left the front counter to accompany Mr. Requejo to another part of
the shop, Mr. Escobedo would pry open the display case and remove a firearm.
The plan failed when another clerk remained at the front counter. Undeterred, the
two men devised a new plan in which Mr. Requejo shielded Mr. Escobedo from
view by standing between him and the security camera and front counter.
However, a clerk heard Mr. Escobedo pry open the top of the display case.
Before the clerk could reach the display case, Mr. Escobedo had taken a Rock
Island Armory, .45 caliber, semi-automatic handgun, which had previously
traveled in and affected interstate commerce, from the case and secreted it in his
waistband. Messrs. Escobedo and Requejo exited the building shortly thereafter.
After leaving the Lincolnway Pawn Shop, Messrs. Escobedo and Requejo
went to a nearby apartment belonging to Mr. Escobedo’s sister. While Mr.
Escobedo changed his shirt and called his drug source to arrange a trade of the
firearm for illegal narcotics, Mr. Requejo inspected the stolen firearm and
observed that it was not a 9mm. The two men subsequently left on bicycles to
rendezvous with the drug source. Before they could arrive at the drug source’s
trailer, the police intercepted them based on information gleaned from the pawn
shop employees and a confidential informant. Mr. Requejo stopped when directed
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to do so by the police and was detained for questioning. Mr. Escobedo eluded
capture and, later that evening, consummated the planned trade of the firearm for
illegal drugs, specifically, cocaine.
Upon his arrest approximately one month later, Mr. Escobedo confessed to
the theft of the firearm from the pawn shop and implicated Mr. Requejo as a
knowing participant. Mr. Escobedo also told law enforcement personnel that he
had traded the stolen gun to his drug source for cocaine. When law enforcement
personnel executed a search warrant on the drug source’s trailer, they recovered
the stolen firearm.
Following Mr. Requejo’s conviction, the probation office prepared a
presentence investigation report (“PSR”). In the PSR, the probation office
calculated a base offense level of twenty. After adding a two-level increase for
the possession of a stolen firearm and a four-level increase for the possession of a
firearm in connection with another felony offense, the probation office
recommended a total offense level of twenty-six and a criminal history category
of III. The government requested a two-level enhancement for obstruction of
justice based upon Mr. Requejo’s allegedly perjurious testimony at trial. At the
sentencing hearing, the district court relied upon the PSR’s sentencing
computations, but also granted the government’s request for the obstruction-of-
justice enhancement over Mr. Requejo’s objections. The addition of this
enhancement elevated the offense level to twenty-eight. This offense level along
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with Mr. Requejo’s criminal history produced a Guidelines range of 97 to 121
months. However, the district court granted a downward variance, sentencing Mr.
Requejo to 63 months’ imprisonment.
DISCUSSION
Mr. Requejo argues that the evidence at trial was insufficient to prove his
guilt beyond a reasonable doubt. He also asserts that his sentence is procedurally
unreasonable because the district court applied (1) a two-level increase to his
offense level for possession of a stolen firearm; (2) a four-level increase to his
offense level for possession of a firearm in connection with another felony
offense; and (3) a two-level increase to his offense level for obstruction of justice.
Although Mr. Requejo never contests the substantive reasonableness of his
sentence, we will address it because his counsel identified it as a potential
appealable issue. Finally, Mr. Requejo claims that he received ineffective
assistance from his appointed trial and appellate counsel.
I. Sufficiency of the Evidence
“We review de novo whether the prosecution presented sufficient evidence
to support a conviction.” United States v. Avery, 295 F.3d 1158, 1177 (10th Cir.
2002). “In conducting this review . . . we ask whether, taking the evidence—both
direct and circumstantial, together with the reasonable inferences to be drawn
therefrom—in the light most favorable to the government, a reasonable jury could
find the defendant guilty beyond a reasonable doubt.” Id. (internal quotation
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marks omitted). “We do not question the jury’s credibility determinations or its
conclusions about the weight of the evidence.” United States v. Allen, 235 F.3d
482, 492 (10th Cir. 2000) (internal quotation marks omitted).
Under this standard, the evidence is sufficient to support Mr. Requejo's
conviction. To prove the offense of aiding and abetting the theft of a firearm
from a federally licensed firearms dealer under 18 U.S.C. § 924(m), in violation
of 18 U.S.C. § 2(a), the government must establish that the defendant “(1)
willfully associate[d] himself with the criminal venture, and (2) [sought] to make
the venture succeed through some action of his own.” United States v. Bowen,
527 F.3d 1065, 1078 (10th Cir.), cert. denied, 129 S. Ct. 312 (2008). The record
demonstrates that Mr. Escobedo pleaded guilty to the theft of a firearm from the
pawn shop, which the parties stipulated is a federally licensed firearms dealer.
The record also shows that Mr. Requejo participated in the planning of the theft,
attempted to distract the clerk by asking about car audio equipment, and
attempted to stand in the way of the surveillance camera and front counter to
shield Mr. Escobedo’s actions from view.
To prove the possession of a firearm by a convicted felon in violation of 18
U.S.C. § 922(g)(1), the government must establish three elements: (1) the
defendant had a prior felony conviction; (2) he knowingly possessed a firearm;
and (3) the firearm traveled in or affected interstate commerce. United States v.
Poe, 556 F.3d 1113, 1125 (10th Cir.), cert. denied, 130 S. Ct. 395 (2009). The
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parties stipulated that Mr. Requejo was a convicted felon. The government
introduced evidence that Requejo knowingly held the firearm for a brief period
after the theft. The parties also stipulated that the firearm had moved at some
time from one state to another.
Thus, we agree with Mr. Requejo’s counsel that a challenge to the
sufficiency of the evidence supporting either conviction would be meritless.
II. Sentencing
We review Mr. Requejo’s sentence for reasonableness, giving deference to
the district court under “the familiar abuse-of-discretion standard.” Gall v.
United States, 552 U.S. 38, 46 (2007). “[R]easonableness . . . has both procedural
and substantive dimensions.” United States v. Martinez-Barragan, 545 F.3d 894,
898 (10th Cir. 2008) (internal quotation marks omitted). “A sentence is
procedurally reasonable when the district court computes the applicable
Guidelines range, properly considers the § 3553(a) factors, and affords the
defendant his rights under the Federal Rules of Criminal Procedure.” Id.
(alteration and internal quotation marks omitted); see Gall, 552 U.S. at 51 (stating
that procedural errors include “failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing to consider the
§ 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing
to adequately explain the chosen sentence”). “A sentence is substantively
reasonable when the length of the sentence reflects the gravity of the crime and
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the § 3553(a) factors.” Martinez-Barragan, 545 F.3d at 898 (internal quotation
marks omitted).
A. Procedural Reasonableness
Mr. Requejo appeals the procedural reasonableness of his sentence. In
particular, Mr. Requejo argues that the district court erred in applying sentencing
enhancements for possession of a stolen firearm, possession of a firearm in
connection with another felony offense, and obstruction of justice. 2
1. Possession of Stolen Firearm
In this appeal, Mr. Requejo argues for the first time that the district court
erred in applying a two-level increase to his base offense level for possession of a
stolen firearm. Mr. Requejo contends that this enhancement should not apply
because he never possessed the gun; he merely aided and abetted in the theft of
the firearm from the pawn shop. In effect, Mr. Requejo challenges the sufficiency
of the evidence to support the enhancement.
“When a party fails to object contemporaneously to the district court’s
sentencing procedure, we review procedural reasonableness challenges for plain
error.” Poe, 556 F.3d at 1128. Under the plain error doctrine, we will reverse the
district court’s judgment only if the party shows (1) an error; (2) that is plain; (3)
2
The probation office computed Mr. Requejo’s sentence by referring
to the November 1, 2008, edition of the United States Sentencing Guidelines
Manual. The parties have not questioned the use of that edition. Accordingly, we
use that edition in our analysis and our citations to the Guidelines are to the 2008
edition.
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that affects substantial rights; and (4) that “seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” United States v. Morris,
562 F.3d 1131, 1133 (10th Cir. 2009) (internal quotation marks omitted). “The
plain error standard presents a heavy burden for an appellant, one which is not
often satisfied.” United States v. Romero, 491 F.3d 1173, 1178 (10th Cir. 2007).
Regarding the specific sufficiency of the evidence challenge advanced by
Mr. Requejo, we conclude that the record strongly supports the enhancement and,
therefore, Mr. Requejo cannot establish the first condition for plain error review
(i.e., error). In this case, the district court applied a two-level increase to Mr.
Requejo’s offense level for possession of a stolen firearm, pursuant to U.S.S.G.
§ 2K2.1(b)(4)(A). Section 2K2.1(b)(4)(A) of the Guidelines provides for a two-
level enhancement “[i]f any firearm . . . was stolen.” This enhancement
encompasses the possession of a stolen firearm. United States v. Walters, 269
F.3d 1207, 1218 (10th Cir. 2001).
Mr. Requejo’s aiding and abetting argument appears to be premised on the
notion that the Guidelines enhancement only may be properly applied in a
situation where he personally possessed the stolen firearm. That notion is
fundamentally misguided. Under the relevant conduct principles of the
Guidelines, defendants qualify for sentencing enhancements not only based upon
criminal conduct that they personally have undertaken but also based upon
criminal conduct that, inter alia, they have aided and abetted. U.S.S.G.
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§ 1B1.3(a)(1)(A) (noting that “specific offense characteristics,” like the stolen
firearms enhancement, “shall be” determined by reference to not only the acts
“committed” by defendants, but also the acts that they have “aided” and
“abetted”). Consequently, even if the record could only support a finding that
Mr. Requejo aided and abetted Mr. Escobedo in the possession of the stolen
firearm, that would be a sufficient basis for imposition of the § 2K2.1(b)(4)(A)
enhancement. See United States v. Bolden, 132 F.3d 1353, 1356 (10th Cir. 1997)
(“These facts show that Bolden aided, abetted, and counseled an attempted armed
bank robbery. Bolden is therefore liable [for a firearm possession sentencing
enhancement] for [his co-defendant] Stapleton’s possession of a gun pursuant to
the robbery plan.”); see also United States v. Ellis, 525 F.3d 960, 964 (10th Cir.)
(noting that defendant’s belief is “incorrect” that Guidelines sentencing
enhancements related to bank robbery do not apply to him “because he did not
personally rob the bank”), cert. denied, 129 S. Ct. 318 (2008).
In any event, the record is not so limited. It reflects that Mr. Requejo
briefly personally possessed the stolen firearm, most notably during the period in
which he inspected it and determined that it was not a 9mm. Accordingly, there
was ample evidence to support the § 2K2.1(b)(4)(A) enhancement. We do note,
however, that the district court neglected to explain its reasons for imposing the
enhancement, nor did it expressly adopt the PSR’s findings concerning the
enhancement at the sentencing hearing. We may assume, without definitively
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deciding, that this failure constituted clear and obvious procedural error—that is,
it satisfied the first two conditions for plain error review. See 18 U.S.C. §
3553(c) (requiring “[t]he court, at the time of sentencing, [to] state in open court
the reasons for its imposition of the particular sentence”); United States v.
Underwood, 938 F.2d 1086, 1091–92 (10th Cir. 1991) (“We agree with the courts
that have held that § 3553 subsection (c) . . . requires a district court to make a
general statement of its reasoning for the sentence imposed. . . . Certainly the
statement of reasoning does not have to be particularized, but, in this case, the
court made no statement.” (citation omitted)). However, Mr. Requejo still cannot
satisfy the rigorous plain error test, because he cannot establish the third
condition. In other words, Mr. Requejo cannot demonstrate that the district
court’s assumed procedural error affected his substantial rights.
“For an error to have affected substantial rights, the error must have been
prejudicial.” United States v. Trujillo-Terrazas, 405 F.3d 814, 819 (10th Cir.
2005) (internal quotation marks omitted). An error is prejudicial when “there is a
reasonable probability that, but for the error claimed, the result of the proceeding
would have been different.” United States v. Hasan, 526 F.3d 653, 665 (10th Cir.
2008) (internal quotation marks omitted). “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. (internal
quotation marks omitted). Given the strong evidence that Mr. Requejo aided and
abetted Mr. Escobedo in his possession of a stolen firearm and, in fact, personally
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possessed the stolen firearm, Mr. Requejo cannot demonstrate a reasonable
probability that, but for the assumed error by the district court in failing to make
findings in support of the § 2K2.1(b)(4)(A) enhancement, the district court would
not have imposed the enhancement (i.e., that the result of the proceeding would
have been different). Cf. United States v. Brown, 164 F.3d 518, 522 (10th Cir.
1998) (holding that a district court’s failure to make specific findings under
predecessor to Federal Rule of Criminal Procedure 32(i)(3)(B) did not “rise to the
level of obvious and substantial error”). Thus, Mr. Requejo’s challenge to the
stolen firearm enhancement is wholly without merit.
2. Possession of a Firearm in Connection with Another
Felony Offense
Mr. Requejo also argues for the first time on appeal that the district court
should not have applied a four-level increase to his base offense level for
possession of a firearm in connection with another felony offense, pursuant to
U.S.S.G. § 2K2.1(b)(6). Specifically, Mr. Requejo contends that he did not
possess the gun when the police stopped him, that he did not know that Mr.
Escobedo intended to trade the firearm for drugs, and that Mr. Escobedo was not
a credible witness because he had an extensive criminal history and negotiated a
deal for leniency with the government.
We review Mr. Requejo’s challenge to this enhancement for plain error
because Mr. Requejo failed to object to its application before the district court.
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Morris, 562 F.3d at 1133. In this case, the district court applied a four-level
increase to Mr. Requejo’s offense level, pursuant to U.S.S.G. § 2K2.1(b)(6).
Section 2K2.1(b)(6) of the Guidelines provides for a four-level increase in the
base offense level “[i]f the defendant used or possessed any firearm or
ammunition in connection with another felony offense; or possessed . . . any
firearm or ammunition with knowledge, intent, or reason to believe that it would
be used or possessed in connection with another felony offense.”
There is ample evidence in the record to support this enhancement. Despite
Mr. Requejo’s claim that he was not aware that Mr. Escobedo intended to trade
the firearm for drugs, the government presented considerable evidence to the jury
to the contrary. The PSR’s findings reflected this evidence, and we discern no
error in the district court’s apparent decision to rest the enhancement upon this
evidence. In particular, the government’s evidence tended to establish that the
animating purpose for the theft of the firearm from the pawn shop (i.e., the
federal firearms dealer) was to effect a trade of the firearm for illegal drugs and
that Mr. Requejo understood this and, indeed, expected to receive some of the
drugs. Trading a firearm for illegal narcotics is a federal felony, proscribed by 18
U.S.C. § 924(c), because it involves the use of a firearm during and in relation to
a drug trafficking offense. Smith v. United States, 508 U.S. 223, 241 (1993) (“We
therefore hold that a criminal who trades his firearm for drugs ‘uses’ it during and
in relation to a drug trafficking offense within the meaning of § 924(c)(1).”); see
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Bailey v. United States, 516 U.S. 137, 148 (1995) (“The active-employment
understanding of ‘use’ certainly includes brandishing, displaying, bartering,
striking with, and, most obviously, firing or attempting to fire a firearm.”
(emphasis added)).
Therefore, Mr. Requejo possessed the firearm and aided Mr. Escobedo in
the possession of the firearm with the intention, or at the very least with reason to
believe, that the firearm would be used or possessed in connection with another
felony offense (i.e., the § 924(c) offense). As suggested by the relevant-conduct
discussion supra Part II(A)(1), the fact that Mr. Requejo did not personally
possess the firearm when the police stopped him is absolutely irrelevant to the
question of whether he qualified for the § 2K2.1(b)(6) enhancement. It is enough
that when the police stopped him Mr. Requejo was aiding and abetting Mr.
Escobedo in his possession of the firearm, with the requisite intent or belief
concerning involvement in another felony. And there was more than enough
evidence for the district court to find that Mr. Requejo was doing just that.
Lastly, we reject Mr. Requejo’s suggestion that the district court erred in
crediting Mr. Escobedo’s testimony. It was the province of the district court to
evaluate the credibility of Mr. Escobedo, and the fact that Mr. Escobedo had an
extensive criminal history and had entered into a plea agreement with the
government would not as a matter of law have rendered his testimony unworthy
of belief. See United States v. Cook, 949 F.2d 289, 296 (10th Cir. 1991) (“We
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conclude that the district court’s factual [sentencing] determination is supported
by the record and that the information upon which the court relied [involving
testimony of a criminal accomplice who was an illegal drug user and had
negotiated a plea deal with the government] contains sufficient indicia of
reliability.”); accord United States v. Frondle, 918 F.2d 62, 64–65 (8th Cir. 1990)
(“Frondle argues that Stearns was inherently unreliable, because he is allegedly a
convicted felon and an informant with a self-interest in assisting the government.
Stearns’s credibility, however, is for the district court to determine, with due
regard to Stearns’s criminal past and self-interest in testifying. The district court
was entitled to credit Stearns’s testimony.” (citations omitted)).
In sum, there was more than enough evidence to support the § 2K2.1(b)(6)
enhancement. We observe that the district court failed to make even brief,
general findings in support of the enhancement; notably, it failed to identify the
additional felony offense at the sentencing hearing. However, even if we assume
without deciding—as we did supra Part II(A)(1)—that the district court’s failure
to make even brief, general findings constitutes clear and obvious error (thus,
satisfying the first two requirements for plain error review), it is beyond
peradventure that Mr. Requejo cannot demonstrate that it is an error that we
should notice. Specifically, he cannot establish that the district court’s assumed
procedural error affected his substantial rights—that there is a reasonable
probability that, absent the assumed error, the sentencing outcome would have
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been different. E.g., Hasan, 526 F.3d at 665. The PSR expressly noted that the
other felony offense that provided the basis for the enhancement was the § 924(c)
offense, and our review of the sentencing hearing transcript gives us no reason to
doubt that the district court was quite familiar with the PSR’s contents. And there
was in fact strong evidence to indicate that Mr. Requejo possessed, and aided and
abetted Mr. Escobedo in the possession of, the firearm with the intent that it be
used in connection with the § 924(c) offense (through bartering the firearm for
narcotics). Accordingly, Mr. Requejo’s challenge to the § 2K2.1(b)(6)
enhancement is completely lacking in merit.
3. Obstruction of Justice
Mr. Requejo argues that the facts are insufficient to support the application
of a two-level increase to his base offense level for obstruction of justice,
pursuant to U.S.S.G. § 3C1.1. We review the district court’s findings of fact
supporting the application of a particular Guidelines enhancement for clear error.
United States v. Mares, 441 F.3d 1152, 1159–60 (10th Cir. 2006). “[T]o the
extent the defendant asks us to interpret the Guidelines or hold that the facts
found by the district court are insufficient as a matter of law to warrant an
enhancement, we must conduct a de novo review.” United States v. Scott, 529
F.3d 1290, 1300 (10th Cir. 2008) (alterations and internal quotation marks
omitted).
Section 3C1.1 of the Guidelines provides for a two-level enhancement:
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If (A) the defendant willfully obstructed or impeded, or
attempted to obstruct or impede, the administration of justice
with respect to the investigation, prosecution, or sentencing of
the instant offense of conviction, and (B) the obstructive
conduct related to (i) the defendant’s offense of conviction and
any relevant conduct; or (ii) a closely related offense, increase
the offense level by 2 levels.
U.S.S.G. § 3C1.1 (emphasis omitted). The obstruction-of-justice enhancement
applies to a defendant who commits perjury. Id. § 3C1.1, cmt. n.4(b); Poe, 556
F.3d at 1129–30. To establish that a defendant committed perjury, the district
court must conclude that: (1) the defendant gave false testimony while under
oath; (2) the false testimony concerned a material matter; and (3) the false
testimony was willful and not the result of confusion, mistake, or faulty memory.
United States v. Dunnigan, 507 U.S. 87, 94 (1993); Mares, 441 F.3d at 1161 n.4.
The district court must be “explicit about which representations by the defendant
constitute perjury,” United States v. Hawthorne, 316 F.3d 1140, 1146 (10th Cir.
2003), even though it need not “recite the perjurious testimony verbatim.” United
States v. Massey, 48 F.3d 1560, 1574 (10th Cir. 1995). If a defendant objects to
the obstruction-of-justice enhancement at sentencing, the district court “must
review the evidence and make independent findings necessary to establish a
willful impediment to, or obstruction of, justice.” Dunnigan, 507 U.S. at 95.
In this case, the district court imposed an obstruction-of-justice
enhancement, pursuant to U.S.S.G. § 3C1.1, after finding that Mr. Requejo had
committed perjury at trial. The district court found by a preponderance of the
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evidence that Mr. Requejo gave “false statements under oath concerning material
matters with the willful intent to provide false testimony at this trial.” R., Vol. 3,
Tr. at 347 (Sentencing Hr’g, dated Jan. 7, 2009). Although the district court
indicated that Mr. Requejo’s statements met the three elements of perjury, it
failed to identify or describe the perjurious testimony that it considered in
imposing the enhancement. Absent this factual finding, the district court deprived
us of any means to evaluate the “‘findings of the elements of perjury against an
identified line of questions and answers without having simply to speculate on
what the district court might have believed was the perjurious testimony.’”
Hawthorne, 316 F.3d at 1146 (quoting Massey, 48 F.3d at 1573).
Even though this procedural error typically results in the vacation of the
sentence and a remand to the district court for further factual findings, Massey, 48
F.3d at 1574, these actions are not necessary in this case because the error is
harmless. United States v. Kaufman, 546 F.3d 1242, 1270 (10th Cir. 2008) (“In
light of the district court’s procedural errors, we must vacate [the defendant’s]
sentence unless those errors were harmless.”), cert. denied, 78 U.S.L.W. 3360(U.S. Dec. 14, 2009). “In this context, harmless error is that which did not affect
the district court’s selection of the sentence imposed.” Id. (internal quotation
marks omitted).
It does not appear from the record that the district court’s ultimate sentence
was to any significant degree tied to its determination concerning the obstruction-
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of-justice enhancement and, thus, any error related to that enhancement would not
have affected the sentence. The district court imposed a sentence of 63 months.
It was well below the Guidelines range of 78–97 months that would have applied
even if the district court had not granted the obstruction-of-justice enhancement
and had left the offense level at twenty-six. The district court stated that a 63-
month sentence was necessary for deterrence, given Mr. Requejo’s prior 24-
month sentence and his criminal history category. It emphasized that a sentence
of a little over five years was appropriate because that length of time was enough
to permit Mr. Requejo to decide if he wanted to acquire job skills and to adopt a
non-criminal lifestyle. In this regard, the court stated, “if he can’t get his act
together in five years, I don’t know what to say to you.” R., Vol. 3, Tr. at 362.
Nothing in the record suggests that the district court would have imposed a lesser
sentence had it decided not to apply the obstruction-of-justice enhancement.
Thus, this procedural error is harmless, and Mr. Requejo is not entitled to
resentencing.
B. Substantive Reasonableness
Mr. Requejo never argues that his sentence is substantively unreasonable.
Although Mr. Requejo makes no claim that his sentence is too long, in light of the
factors enumerated in 18 U.S.C. § 3553(a), we will evaluate its substantive
reasonableness because Mr. Requejo’s counsel raised it as a potential appealable
issue.
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“[A] within-Guidelines sentence is entitled to a presumption of substantive
reasonableness on appeal.” United States v. Alapizco-Valenzuela, 546 F.3d 1208,
1215 (10th Cir. 2008). “[W]hen the district court varies from the advisory
Guidelines range through application of the § 3553(a) factors, we simply consider
whether the length of the sentence is substantively reasonable utilizing the abuse-
of-discretion standard.” Id. at 1216 (citation omitted).
In this case, the district court varied downward from the applicable
Guidelines range. The record establishes that the district court considered the
relevant sentencing factors in 18 U.S.C. § 3553(a) and ultimately imposed a
sentence of 63 months instead of a sentence within the applicable Guidelines
range of 97–121 months. As suggested by the discussion supra Part II(A)(3), the
district court reasonably could have concluded that no further downward variance
was warranted in Mr. Requejo’s case. Thus, giving due deference to the district
court’s decision to vary downward, we conclude that Mr. Requejo’s sentence was
substantively reasonable in light of the factors identified in 18 U.S.C. § 3553(a).
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III. Ineffective Assistance of Counsel
Mr. Requejo also claims that he received ineffective assistance of counsel. 3
“‘Ineffective assistance of counsel claims should be brought in collateral
proceedings, not on direct appeal.’” United States v. Samuels, 493 F.3d 1187,
1193 (10th Cir. 2007) (quoting United States v. Galloway, 56 F.3d 1239, 1240
(10th Cir. 1995) (en banc)); see Massaro v. United States, 538 U.S. 500, 504
(2003) (“[I]n most cases a motion brought under [28 U.S.C.] § 2255 is preferable
to direct appeal for deciding claims of ineffective assistance.”). Although
ineffective assistance claims “‘brought on direct appeal are presumptively
dismissible,’” Samuels, 493 F.3d at 1193 (quoting Galloway, 56 F.3d at 1240), we
may review such claims in “rare” cases where the factual record is sufficiently
developed. United States v. Rodriguez-Rivera, 518 F.3d 1208, 1216 (10th Cir.
2008). Even if the record is sufficient, however, a collateral proceeding is
preferable because “[a]n opinion by the district court is a valuable aid to appellate
review for many reasons, not the least of which is that in most cases the district
court is familiar with the proceedings and has observed counsel’s performance, in
context, firsthand.” United States v. Brooks, 438 F.3d 1231, 1242 (10th Cir.
2006) (internal quotation marks omitted).
3
Mr. Requejo asserts that his trial counsel ineffectively represented
him by (1) attempting to convince him to accept a plea agreement; (2) not trying
to find the truth; and (3) not keeping him updated on the case. He also claims
that his appellate counsel ineffectively assisted him by not contesting the
obstruction-of-justice enhancement on appeal.
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In this case, Mr. Requejo’s ineffective assistance claim is premature. We
have neither a sufficiently developed factual record nor an opinion of the district
court on this issue. Thus, we dismiss this claim without prejudice to subsequent
attempts to raise it in collateral proceedings.
CONCLUSION
For the foregoing reasons, we AFFIRM the conviction and sentence,
DISMISS the ineffective assistance claim without prejudice, and GRANT counsel’s
motion to withdraw.
ENTERED FOR THE COURT
Jerome A. Holmes
Circuit Judge
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