United States v. Joe Mendoza, 782 F.3d 1046

Mendoza began a five-year term of supervised release in Dec. 2012 after a 200-month sentence for methamphetamine possession with intent to distribute.
In Nov. 2013 a Texas trooper stopped Mendoza driving a rental car; a trunk search found 70 vacuum-sealed bundles (85 pounds) of high-grade marijuana in duffle bags.
Probation petitioned to revoke supervised release for four violations: committing another crime, illegally possessing a controlled substance, leaving the district without permission, and failing to notify his probation officer of an arrest.
At the revocation hearing Mendoza contested the criminal-possession charges; the district court found all four violations by a preponderance of the evidence.
The district court treated the most serious violation as a Grade A(2) “controlled substance offense,” placed Mendoza in CHC V and then, after defense objection, CHC IV, set the advisory range at 37–46 months and sentenced Mendoza to 37 months.
Mendoza appealed, arguing plain procedural error: the court erred in using a Grade A violation without expressly finding possession with intent to distribute (as opposed to mere possession, which would be Grade B).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court committed procedural/plain error by calculating the advisory guidelines range as a Grade A controlled-substance violation without expressly finding intent to distribute	Mendoza: The court only found possession; absent an explicit finding of intent to distribute the violation should be Grade B (mere possession), producing a lower advisory range	Government: The record (85 lbs, 70 vacuum-sealed bundles, interstate transport in duffle bags) supported an inference of intent to distribute; Grade A was properly applied	No plain error. The evidence supported possession with intent to distribute; the Grade A finding was apparent from the record and the sentence was affirmed
Whether Mendoza forfeited the sentencing-grade challenge by failing to object at the hearing and, if so, whether plain-error review applies	Mendoza: (implicit) challenge that the substantive error existed regardless of objection	Government: Defense counsel’s failure to object forfeited the claim; review is therefore for plain error, which Mendoza cannot meet	Forfeiture noted; plain-error review applies, but Mendoza cannot satisfy it because the record plainly supports Grade A conduct

United States v. Schwab, 85 F.3d 326 (8th Cir. 1996) (grade of supervised-release violation is based on defendant’s actual conduct, not the formal criminal charge)
United States v. Shurn, 849 F.2d 1090 (8th Cir. 1988) (large quantity of drugs can support an inference of possession with intent to distribute)
United States v. Nissen, 666 F.3d 486 (8th Cir. 2012) (plain-error standard for forfeited sentencing objections)
United States v. Atterberry, 775 F.3d 1085 (8th Cir. 2015) (discussing when factual misstatements at sentencing constitute plain error)