Submitted January 12, 2015
Appeal from United States District Court for the Western District of Arkansas - Fayetteville.
For United States of America, Plaintiff - Appellee: Dustin S. Roberts, Assistant U.S. Attorney, Fort Smith, AR.
Joe Louis Mendoza, Defendant - Appellant, Pro se, Herlong, CA.
For Joe Louis Mendoza, Defendant - Appellant: John B. Schisler, Assistant Federal Public Defender, Fayetteville, AR.
Before LOKEN, MURPHY, and MELLOY, Circuit Judges.
Joe Louis Mendoza began a five-year term of supervised release in December 2012 after serving a 200-month prison sentence for possessing methamphetamine with intent to distribute. In November 2013, Texas State Trooper Max Honesto stopped Mendoza for a routine traffic violation while he was driving a rental car from California to his home in Arkansas. The stop led to a probable cause search of the car and to Mendoza's arrest when seventy vacuum-sealed bundles containing eighty-five pounds of high-grade marijuana were found in five duffle bags in the trunk of the car. Mendoza's probation officer petitioned the district court to commence revocation proceedings. Following an evidentiary hearing, the district court imposed a 37-month revocation sentence. Mendoza appeals, arguing the court committed plain procedural error in determining the advisory guidelines range sentence. We affirm.
The probation officer charged Mendoza with violating four conditions of supervised release -- committing another crime, illegally possessing a controlled substance, leaving the district without permission, and failing to notify the probation officer within 72 hours of an arrest. At the revocation hearing, Mendoza denied the first two charges. Trooper Honesto testified at length. The Government argued: " this is a clear case of drug-trafficking" because Mendoza " went to jail for . . . drugtrafficking -- gets out, and within less than a year, is stopped outside of his [designated district] . . . in a rental vehicle with 85 pounds of marijuana that is . . . vacuum sealed." Defense counsel argued the government failed to prove the bundles contained marijuana or that Mendoza possessed the duffle bags found in the trunk of his car. The district court found that Mendoza violated all four conditions of supervised release. Regarding the contested violations, the court stated, " I think the proof is sufficient under the preponderance of the evidence test to convince me that [Mendoza] was in possession of the -- of marijuana at that time and, therefore, that both of these violations are made out."
Turning to the question of the sentence if supervised release was revoked, the district court began by determining the advisory guidelines range recommended by U.S.S.G. § 7B1.4(a). The court asked counsel if they agreed that Mendoza was on supervised release for a Class A offense; that " the most serious [supervised release]
violation that has been found is an A-2 violation," see U.S.S.G. § 7B1.1(a)(1)(A)(ii); and that Mendoza was in criminal history category five, resulting in an advisory range of 46 to 57 months in prison. Government counsel agreed. Defense counsel objected that Mendoza should be in criminal history category four, resulting in an advisory range of 37 to 46 months for a Grade A(2) violation by a Class A felony offender. The district court agreed, determined the advisory range was 37 to 46 months in prison, revoked Mendoza's supervised release, and sentenced him to 37 months, the bottom of the guidelines range, noting that sentence " represents a bit of a break" given the quantity of marijuana involved.
Mendoza raises one issue on appeal -- that the district court committed plain procedural sentencing error by calculating the advisory guidelines range based on a Grade A supervised release violation without making a specific finding that Mendoza possessed the marijuana with intent to distribute. The Guidelines define a Grade A violation as including a " controlled substance offense" punishable by a prison term exceeding one year. U.S.S.G. § 7B1.1. A " controlled substance offense" is limited to offenses involving the manufacture, import, export, distribution, or dispensing of a ...