                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             APR 20 2015

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,                        No. 14-50204

              Plaintiff - Appellee,              D.C. No. 3:11-cr-07050-DMS-1

 v.
                                                 MEMORANDUM*
DAMAZO ACOSTA, AKA Cody Acosta,
AKA Dmaso Acosta, Jr., AKA Flaco,
AKA Shorty, AKA Thomas John
Williams,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Southern District of California
                    Dana M. Sabraw, District Judge, Presiding

                             Submitted April 9, 2015**
                               Pasadena, California

Before: BENAVIDES,** TASHIMA, and CLIFTON, Circuit Judges.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
            The Honorable Fortunato P. Benavides, Senior Circuit Judge for the
U.S. Court of Appeals for the Fifth Circuit, sitting by designation.
      Defendant-Appellant Damazo Acosta (“Acosta”) appeals from the

revocation of his supervised release. We have jurisdiction under 28 U.S.C. § 1291.

On appeal, Acosta argues that (1) the evidence related to the alleged violations of

Massachusetts drug laws was insufficient, (2) his due process rights were violated

when he did not have the opportunity to confront a double-hearsay declarant

during the evidentiary hearing, and (3) the sentence was procedurally unreasonable

because of the weight given to his criminal history. After reviewing each of these

challenges, we affirm.

      We review a district court’s revocation of supervised release for abuse of

discretion. United States v. Thum, 749 F.3d 1143, 1145 (9th Cir. 2014). “In

evaluating the sufficiency of the evidence supporting a supervised release

revocation, we ask whether, viewing the evidence in the light most favorable to the

government, any rational trier of fact could have found the essential elements of a

violation by a preponderance of the evidence.” Id. (internal quotation marks

omitted). “Whether a defendant has received due process at a revocation

proceeding is a mixed question of law and fact that we review de novo. . . . A due

process violation at a revocation proceeding is subject to harmless error analysis.”

United States v. Perez, 526 F.3d 543, 547 (9th Cir. 2008) (internal quotation marks

and citation omitted). We review a sentence’s procedural reasonableness for abuse


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of discretion. See United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en

banc).

         We conclude that a rational trier of fact could have found by a

preponderance of the evidence that Acosta possessed marijuana with intent to

distribute, in violation of Massachusetts General Laws chapter 94C, § 32C. The

possession requirement has clearly been established. When the police asked Acosta

whether they would find marijuana in the motel room that was registered under

Acosta’s name and where Acosta was found, Acosta replied affirmatively. Police

then found close to ten pounds of marijuana in the room, an amount considered to

be distributable under Massachusetts law. See Commonwealth v. Allen, 554 N.E.2d

854, 859-60 (Mass. App. Ct. 1990). An intent to distribute may be inferred from

the surrounding facts and circumstances. Commonwealth v. Keefner, 961 N.E.2d

1083, 1091 (Mass. 2012). Here, in addition to the multiple pounds of marijuana,

there were other items found in the motel room that were consistent with

distribution— most notably the FedEx boxes, duct tape, mailing receipt, cell

phones, and shipping labels. See Commonwealth v. Sepheus, 9 N.E.3d 800, 808

(Mass. 2014) (listing cell phones and packaging materials as examples of “drug

paraphernalia consistent with distribution”). Also, police observed Brendon Smith




                                            3
(“Smith”) near the motel room, and Smith was soon thereafter stopped and found

with a small amount of marijuana.

      We also conclude that a rational trier of fact could have found by a

preponderance of the evidence that Acosta engaged in a conspiracy to violate a

drug law, in violation of Massachusetts General Laws chapter 94C, § 40.

Conspiracy requires a showing of “an unlawful agreement to further, by concerted

action, the accomplishment of a criminal act.” Commonwealth v. D’Amour, 704

N.E.2d 1166, 1183 (Mass. 1999). Here, there was strong evidence that Acosta and

Stephen Lumbert (“Lumbert”) knew each other and were in communication with

each other. Lumbert’s actions outside the motel room shortly after Acosta moved

bags from the car to the motel room, including a duffel bag that was later found to

contain marijuana, were consistent with that of a lookout. Lumbert was also

arrested with marijuana in his possession. All of this evidence, together with the

amount of marijuana and drug paraphernalia that was found in the motel room,

could easily lead a rational trier of fact to find, by a preponderance of the evidence,

that Acosta conspired with Lumbert to possess marijuana with intent to distribute.

      Regarding Acosta’s due process challenge, even if there was a violation of

due process in admitting out-of-court statements made by Smith without giving

Acosta an opportunity to confront Smith, any error was harmless. Detective John


                                           4
Doble (“Doble”) testified that, when Smith was stopped, the officers seized from

him a small quantity of marijuana. When asked during the evidentiary hearing

whether the other officers had an opportunity to ask Smith where he had been,

Doble replied that Smith stated that he was coming from the Quality Inn, where

Acosta had been observed and where he was ultimately arrested. When asked

whether Smith gave any names, Doble replied that Smith did not. These double-

hearsay statements do not add anything to the evidence that the police already had

acquired. The police already had observed that Smith went to the inn, and the

testimony that Smith did not provide any names does not add anything to the

evidence against Acosta. Thus, any error was harmless.

      Finally, we conclude that the sentence was not procedurally unreasonable.

According to the Sentencing Guidelines, “at revocation the court should sanction

primarily the defendant’s breach of trust, while taking into account, to a limited

degree, the seriousness of the underlying violation and the criminal history of the

violator.” U.S.S.G. Ch. 7, Pt. A(3)(b) (2014). Under an abuse-of-discretion review,

we conclude that there is no indication that the district court did not consider,

primarily, Acosta’s breach of trust, and then his criminal history to a limited

degree. AFFIRMED.




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