                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 14-1725
                         ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                                  Joe Louis Mendoza

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                      Appeal from United States District Court
                 for the Western District of Arkansas - Fayetteville
                                  ____________

                            Submitted: January 12, 2015
                               Filed: April 14, 2015
                                   [Published]
                                  ____________

Before LOKEN, MURPHY, and MELLOY, Circuit Judges.
                          ____________

PER CURIAM.

       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 court1 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,2 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 . . . drug-
trafficking -- 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.”




       1
      The Honorable Jimm Larry Hendren, United States District Judge for the
Western District of Arkansas.
       2
       The revocation Petition recited that Texas authorities had charged Mendoza
“with possession of marijuana, less than or equal to 2000 lbs, but greater then 50 lbs;
case no. 9148086266.” See Tex. Health & Safety Code § 481.121(b)(5).

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       Turning to the question of the sentence if supervised release was revoked, the
district court began by determining the advisory guidelines range recommended by
USSG § 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 USSG § 7B1.1(a)(1)(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. USSG § 7B1.1. A “controlled substance offense” is limited to
offenses involving the manufacture, import, export, distribution, or dispensing of a
controlled substance, or possession with intent to do so. USSG § 4B1.2(b),
incorporated by reference in § 7B1.1, comment. (n.3).

       The “grade of violation does not depend upon the conduct that is the subject of
criminal charges” but rather is to be “based on the defendant’s actual conduct.”
United States v. Schwab, 85 F.3d 326, 327 (8th Cir. 1996). Thus, the fact that Texas
authorities charged Mendoza with possession of marijuana does not preclude a finding
that he possessed the marijuana with intent to distribute and thus committed a Grade
A “controlled substance offense” violation. See USSG § 7B1.1, comment (n.1).

                                          -3-
Mendoza argues, however, that the district court did not find that he possessed
marijuana with intent to distribute, only that he possessed the marijuana found in the
trunk of his car. Mere possession of marijuana is a Grade B violation, which would
reduce his advisory guidelines range to 12 to 18 months in prison.

       Arguably, defense counsel’s failure to object when the court asked if Mendoza
agreed it was a Grade A(2) violation waived this issue. But even if the issue was only
forfeited, our review is for plain error because Mendoza failed to raise this objection
in the district court. See United States v. Nissen, 666 F.3d 486, 490 (8th Cir. 2012).
Under plain error review, the defendant must show an error that is plain and that
affects substantial rights. If a defendant makes that showing, we may exercise our
discretion to correct a forfeited error only if it seriously affects the fairness, integrity,
or public reputation of judicial proceedings. Id.

       Mendoza cannot show plain error. The focus of the revocation hearing was on
whether he possessed the seventy vacuum-sealed bundles found in the trunk of his car
and whether they contained marijuana, a controlled substance. Possession was all the
government needed to prove to establish the two contested supervised release
violations, committing another crime and illegally possessing a controlled substance.
The district court’s finding explicitly resolved that issue. Whether the unlawful
possession constituted a Grade A violation was a distinct issue. The quantity of
controlled substance found -- eighty-five pounds of high grade marijuana wrapped in
seventy bundles -- by itself was sufficient to establish possession with intent to
distribute. See, e.g., United States v. Shurn, 849 F.2d 1090, 1095 (8th Cir. 1988).
Thus, the evidence supported the district court’s finding of a Grade A(2) violation, an
explicit finding that necessarily incorporated a predicate finding of possession with
intent to distribute. The district court made no misstatement, like the obvious drug
quantity misstatement we concluded was not plain error in United States v. Atterberry,
775 F.3d 1085, 1088-89 (8th Cir. 2015). Rather, the court simply did not spell out a



                                            -4-
factual predicate to its ultimate Grade A finding that was obvious from the hearing
record.

       In these circumstances, there was no error, much less plain error. The record
clearly supported the inference, drawn by the district court, that Mendoza was
engaged in drug trafficking when he was arrested while driving eighty-five pounds of
marijuana from California to Arkansas. The 37-month sentence was well below the
five-year maximum sentence if Mendoza violated any condition of his supervised
release. See 18 U.S.C. § 3583(e)(3).

      The judgment of the district court is affirmed.
                     ______________________________




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