United States v. Requejo

364 F. App'x 517
CourtCourt of Appeals for the Tenth Circuit
DecidedFebruary 10, 2010
Docket09-8005
StatusUnpublished
Cited by3 cases

This text of 364 F. App'x 517 (United States v. Requejo) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Requejo, 364 F. App'x 517 (10th Cir. 2010).

Opinion

ORDER AND JUDGMENT *

JEROME A. HOLMES, Circuit Judge.

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 *519 found guilty by a 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, 87 S.Ct. 1396, 18 L.Ed.2d 493 (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 Lin-colnway Pawn Shop, a federally licensed firearms dealer, in Cheyenne, Wyoming. Although Messrs. Escobedo and Requejo browsed the aisles looking at 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. Escobe-do 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 to do so by the police and was detained for questioning. Mr. Esco-bedo 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 *520 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 perju-rious testimony at trial. At the sentencing hearing, the district cornt 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 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 appeal-able 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 marks omitted).

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Bluebook (online)
364 F. App'x 517, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-requejo-ca10-2010.