United States v. Joaquin Urcino , 370 F. App'x 715 ( 2010 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 31, 2010
Decided April 1, 2010
Before
MICHAEL S. KANNE, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 09-2718
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 08 CR 671-1
JOAQUIN URCINO,
Defendant-Appellant. Ruben Castillo,
Judge.
ORDER
After a three-day trial, a jury found Joaquin Urcino guilty of being a felon in
possession of a firearm, 18 U.S.C. § 922(g)(1), and the district court sentenced him below
the guidelines range to 96 months in prison. Urcino filed a notice of appeal, but his
appointed counsel now seeks to withdraw because he cannot identify any nonfrivolous
ground for appeal. See Anders v. California, 386 U.S. 738 (1967). Because Urcino has not
submitted a response to counsel’s motion, see C IR. R. 51(b), we confine our review to the
potential issues identified in counsel's facially adequate brief, see United States v. Schuh, 289
F.3d 968, 973-74 (7th Cir. 2002).
No. 09-2718 Page 2
The charge arose out of a turf-war altercation that broke out in Chicago between
Urcino, a gangmember, and members of a rival gang. Urcino, who had been traveling with
his girlfriend along territorial borders, was accosted by the gang members. He pulled a
gun out of a bag his girlfriend was carrying for him and pointed it at them. As the police
arrived, Urcino put the gun back into his girlfriend’s bag and then went in a separate
direction. One officer eventually apprehended Urcino, while another stopped the
girlfriend, who was found with the gun inside her bag. The government called as
witnesses, among others, Urcino’s girlfriend, the two police officers, and two eyewitnesses.
Contrary to their depiction of events, Urcino testified that he did not have a gun, but that
he had brandished his silver mobile phone as if it were a gun to scare away the gang rivals.
Counsel considers whether Urcino could argue that there was insufficient evidence
to support a finding of guilt. We would view the evidence in the light most favorable to
the government and uphold a conviction unless there is no evidence in the record from
which a jury could have found Urcino guilty. United States v. Moses, 513 F.3d 727, 733 (7th
Cir. 2008); United States v. Morris, 349 F.3d 1009, 1013 (7th Cir. 2003). For a conviction under
§ 922(g)(1), the government must prove (1) the defendant had a previous felony conviction,
(2) the defendant possessed a firearm, and (3) the firearm traveled in or affected interstate
commerce. 18 U.S.C. § 922(g)(1); Morris, 349 F.3d at 1013. Because Urcino stipulated to the
first and third elements, the government needed to prove only that Urcino possessed the
recovered gun. At trial, the government established Urcino’s gun possession through the
testimony of one eyewitnesses, one police officer, and Urcino’s girlfriend. We agree with
counsel that this evidence would be more than sufficient for a reasonable jury to find
Urcino guilty beyond a reasonable doubt.
Counsel also considers whether Urcino could challenge the reasonableness of the
district court's decision to sentence him to 96 months—24 months below the recommended
120-month guidelines range. We agree that any such challenge would be frivolous. The
district court correctly calculated Urcino’s final offense level to be 26 and his criminal
history category to be VI, resulting in a recommended 120-150 month range. Because the
statutory maximum of 120 months equaled the bottom of the guidelines range, 120 months
became the recommended sentence. See U.S.S.G. § 5G1.1(c). We would presume that a
sentence falling within a properly calculated guidelines range is reasonable, United States v.
Panaigua-Verdugo, 537 F.3d 722, 727 (7th Cir. 2008), and a below-guidelines sentence will
almost never be unreasonable, United States v. George, 403 F.3d 470, 473 (7th Cir. 2005).
Moreover the record shows that the court considered the factors under 18 U.S.C.
§ 3553(a)—including the seriousness of the offense in light of the fact that even though
Urcino was in possession of a gun, there was no hard evidence he would have used it—as
well as credit under 18 U.S.C. § 3585(b)(1) for time spent in state custody.
We therefore GRANT the motion to withdraw and DISMISS Urcino’s appeal.