                                                                       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          This Order and Judgment is not binding precedent, except under the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).

                                         -2-
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


                                          -3-
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


                                        -4-
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


                                         -5-
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


                                         -6-
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


                                         -7-
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.

                                          -8-
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.


                                           -9-
§ 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


                                         -10-
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


                                          -11-
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.



                                         -12-
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


                                         -13-
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


                                         -14-
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


                                         -15-
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:


                                         -16-
             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


                                        -17-
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-


                                          -18-
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.


                                          -19-
      “[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).




                                         -20-
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.

                                        -21-
      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




                                          -22-
