United States of America v. DAMAZO ACOSTA, AKA Cody Acosta, AKA Dmaso Acosta, Jr., AKA Flaco, AKA Shorty, AKA…

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAMAZO ACOSTA, AKA Cody Acosta,
AKA Dmaso Acosta, Jr., AKA Flaco,
AKA Shorty, AKA Thomas John
Williams,
Defendant - Appellant.
No. 14-50204
D.C. No. 3:11-cr-07050-DMS-1
MEMORANDUM*
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.
FILED
APR 20 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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.

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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
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(“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
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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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