United States v. Lujan

Opinion

Appellate Case: 21-2107 Document: 010110689388 Date Filed: 05/26/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT May 26, 2022 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 21-2107 (D.C. No. 1:15-CR-04009-MV-1) IVAN LUJAN, (D. N.M.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before BACHARACH, BALDOCK, and EID, Circuit Judges. _________________________________

Ivan Lujan appeals the district court’s judgment finding that he violated the

terms of his supervised release by unlawfully possessing a controlled substance,

possessing alcohol, and having access to dangerous weapons. Exercising jurisdiction

pursuant to 28 U.S.C. § 1291, we affirm.

* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 21-2107 Document: 010110689388 Date Filed: 05/26/2022 Page: 2

I. Background

Lujan pleaded guilty in 2015 to being a felon in possession of a firearm. He

was sentenced to 51 months’ imprisonment, followed by three years’ supervised

release. Lujan commenced his period of supervision in January 2020 and did not

violate any conditions during the first year. In March 2021, however, Lujan quit his

job at a convenience store and failed to notify his probation officer (PO) of the

change in his employment status. The PO also learned from the local police that

Lujan had been living at a trailer that was not his authorized residence. The PO

searched that trailer on June 9, 2021. In a bedroom she found Lujan’s clothing and

other personal belongings, as well as two knives. The PO also found a small amount

of heroin and several large bottles of alcohol elsewhere in the trailer. Lujan was

arrested and charged with violating the conditions of his supervised release.

At a revocation hearing, the district court noted Lujan was charged with five

grade C violations, which, if proven, would result in a sentencing guidelines range of

four to ten months’ imprisonment. Lujan admitted two of the charges: that he failed

to notify his PO of his change in residence and also failed to notify her of his change

in employment. But he denied that he violated three other conditions by

(1) unlawfully possessing a controlled substance, (2) using or possessing alcohol, and

(3) owning, possessing, or having access to dangerous weapons.

2 Appellate Case: 21-2107 Document: 010110689388 Date Filed: 05/26/2022 Page: 3

Lujan’s PO was the sole witness at the hearing.1 She testified that Lujan had

consistently reported to her in 2020. But beginning in mid-March 2021 her

communication with him became irregular. He did not contact her, and he failed to

respond to her voice and text messages. At some point Lujan told the PO that his

phone was not working. But even after giving her a new phone number, he still did

not respond to her communications. The PO asked Lujan’s therapist to tell him he

needed to get in touch with her. But he still failed to contact the PO, while telling the

therapist that he had. Ultimately, the PO resorted to leaving messages with Lujan’s

mother, after which he would eventually contact her.

The PO testified about the search of Lujan’s unauthorized residence,

describing what was found and where. Lujan’s clothes and shoes were in a bedroom

closet. In that same room were a dagger knife, a large-bladed knife, a gun holster in

a nightstand next to the bed, and pieces of mail, bank statements, and medical

treatment records bearing Lujan’s name. One of the bank statements showed a

$14,000 deposit, which he had withdrawn two days later. When asked to explain that

deposit, Lujan told the PO it was a disbursement related to a vehicle. Two flat screen

televisions were mounted on the bedroom wall, one of which displayed the feeds

from four cameras on the property. The search also uncovered a small amount of

heroin in a tin container in the couch in the living room and a cabinet filled with

large bottles of hard liquor in the kitchen.

1 Much of the PO’s testimony was elicited by the district court’s own questions. 3 Appellate Case: 21-2107 Document: 010110689388 Date Filed: 05/26/2022 Page: 4

During the search, the PO spoke to another resident of the trailer, who lived

there with her teenage daughter. The other resident confirmed that Lujan had stayed

at the trailer, but she was hesitant to provide further information about him. Based

on the woman’s demeanor, the PO concluded that she was either protecting Lujan or

did not want to get involved.

The PO also confiscated Lujan’s cell phone, but she was unable to search it

because he provided incorrect passwords. In addition, during a previous search of

Lujan’s authorized residence, the PO had found multiple memory cards for Lujan’s

phone.

When the PO confronted Lujan about his unauthorized residence, he denied

living there. He told the PO that the trailer was the home of Theresa Pacheco, his

former manager at the convenience store, with whom Lujan was in an intimate

relationship. Despite Lujan’s denial that he was living there, the PO found keys to

the trailer in a search of Lujan’s car, and she learned that Lujan and Pacheco had

signed a year-long lease for the trailer beginning in September 2020. Lujan told the

PO he did not know why his name was on the lease. Although the PO could not

confirm the number of days Lujan had spent at the trailer versus his authorized

address, she stated that the only time she encountered Lujan at his approved

residence was when she had asked him to be there. The PO concluded that he had

been residing at both addresses. The PO also testified that Pacheco is a convicted

felon.

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The PO testified about the process for approving a residence for a person on

supervision. She does a home inspection and talks to all other residents to determine

if a particular residence is suitable. If other residents are not willing to keep alcohol

and illicit drugs out of the home, the PO will ask the person under supervision to find

a different residence. She opined that the trailer was not a residence that Lujan

wanted to be approved.

The PO further testified that a person on supervision must report all vehicles

owned and used. But Lujan failed to report all of the vehicles he was using. In

particular, she did not know which vehicle Lujan sold to reportedly obtain the

$14,000 he had deposited in his bank account.

Following the testimony, the district court noted Lujan’s admission that he had

violated his supervised release conditions by failing to notify his PO before changing

his employment and his residence. The court also found the government had met its

burden to show by a preponderance of the evidence that Lujan violated the additional

conditions precluding the unlawful possession of a controlled substance, the

possession of alcohol, and having access to dangerous weapons.

The government asked the district court to impose a sentence of four months’

imprisonment, which was the bottom of the applicable guidelines range, followed by

32 months of supervised release. Lujan asked the court to hold the revocation

petition in abeyance for 90 days, pointing to his compliance with all conditions while

on release following his arrest on the current charges. Lujan’s counsel also argued:

5 Appellate Case: 21-2107 Document: 010110689388 Date Filed: 05/26/2022 Page: 6

[T]here really is no way of knowing whether or not he knew that that contraband was present. We don’t know how long it was there. We don’t know when he lived there or stayed there. We don’t know if the knife and the alcohol [were] brought in at a time after he left. There’s no constructive possession because there’s no knowledge that those things were there when [he] was there. R., Vol. 3 at 61-62.

The district court refused Lujan’s request to hold the petition in abeyance and

instead adopted the government’s recommendation and imposed a four-month prison

sentence, followed by 32 months of supervised release. The court stated that it did

not believe, based upon all of the evidence presented, that Lujan lacked knowledge of

the knives, heroin, and alcohol in the trailer. It pointed to what it characterized as the

“troubling” circumstances regarding Lujan that were revealed in the PO’s testimony,

including “two leases, a bunch of cars, a bunch of cash deposited and then

withdrawn, not reporting regularly, [his PO] having to try to find [him].” Id. at 64.

As to his failure to report, the court admonished, “It is not [the PO’s] job to go find

you, and it not her job to go to your mother. It’s your job to go to her.” Id. As to his

unauthorized residence, the court stated that

we decide whether you can live with someone in a house full of individuals. . . . And the reason is precisely because we don’t want you living in a house full of people that are felons, people that use alcohol, or that use drugs, or that have guns in the house, or that have weapons in the house, because you are under strict conditions. And then you are put in a situation where even without evidence, I’m supposed to believe that you don’t know that these things are there? Id. The district court analogized to a hypothetical traffic stop, positing that the police

found dangerous weapons and a gun holster in Lujan’s car, and he claimed no

knowledge of those items. The court stated, “Do you think they would have believed 6 Appellate Case: 21-2107 Document: 010110689388 Date Filed: 05/26/2022 Page: 7

you? Of course not. . . . [T]hey would not have believed you because of who you are

in your community. . . . Your association is still with people in your previous life.”

Id. at 65. The court cautioned Lujan that, if he failed to “change the people that

surround you, you’re going to go back to your old life, and your old life is going to

bring you down.” Id.; see also id. at 66-67 (district court stating, “I don’t want you

doing all the same stuff you were doing before.”).2

II. Discussion

Lujan argues that the evidence was insufficient to support the district court’s

findings that he unlawfully possessed heroin, possessed alcohol, and had access to

dangerous weapons. He also maintains that the court erred as a matter of law by

effectively concluding that he constructively possessed these items based solely on

his proximity to them and his ability to access the places where they were

discovered.3

2 The district court’s comments about Lujan’s “old life” were somewhat cryptic. In referencing his previous life, the court said that Lujan’s “job is to make sure that you are not associating with people that have a felony record, people that use drugs, people that are not okayed by your probation officer.” R., Vol. 3 at 65. The court also referenced Lujan’s previous use of “addicts . . . to transport [his] cash.” Id. at 66. And regarding his use of unreported vehicles while on supervised release, the court commented that “one of the reasons that drug traffickers drive a million different cars is because they don’t want to be caught.” Id. 3 Lujan’s appeal was not mooted by his completion of his four-month prison sentence because he remains on supervised release, which could potentially be reduced by a favorable appellate ruling. See United States v. Salazar, 987 F.3d 1248, 1252 (10th Cir.), cert. denied, 142 S. Ct. 321 (2021).

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The full panoply of rights due a defendant in a criminal prosecution does not

apply in a supervision-revocation proceeding. See United States v. Jones,

818 F.3d 1091, 1098 (10th Cir. 2016). “[M]inimum due process extends to releasees

facing revocation of supervised release.” Id. Our sister circuit has explained that

[a] convict suspected of violating the terms of his supervised release does not stand in the same shoes as a person accused of committing a crime but not yet convicted. He does not enjoy the presumption of innocence, the right to have his guilt adjudicated beyond a reasonable doubt, or many of the procedural protections associated with a formal trial. Rather, he enjoys less procedural protection and may be punished upon a lesser showing of proof. United States v. Waters, 158 F.3d 933, 939 (6th Cir. 1998), superseded by rule on

other grounds as recognized in United States v. Dowl, 956 F.3d 904, 908 (6th Cir.

2020). Thus, a court may revoke the grant of supervised release and impose a prison

sentence if it finds by a preponderance of the evidence that the defendant has violated

a condition of supervised release. See United States v. Disney, 253 F.3d 1211, 1213

(10th Cir. 2001); 18 U.S.C. § 3583(e)(3).

We review a district court’s decision to revoke a term of supervised release for

an abuse of discretion. Disney, 253 F.3d at 1213. “A district court abuses its

discretion when it relies on an incorrect conclusion of law or a clearly erroneous

finding of fact.” United States v. Battle, 706 F.3d 1313, 1317 (10th Cir. 2013).

“Factual findings are clearly erroneous only if they are without factual support in the

record or if this court, considering all the evidence, is left with a definite and firm

conviction that a mistake has been made.” United States v. Cortes-Gomez, 926 F.3d

8 Appellate Case: 21-2107 Document: 010110689388 Date Filed: 05/26/2022 Page: 9

699, 708 (10th Cir. 2019). We review legal issues de novo. Disney, 253 F.3d

at 1213.

Lujan argues there was insufficient evidence that he constructively possessed

the heroin, alcohol, and knives found in the trailer.4 “[C]onstructive possession

exists when a person not in actual possession knowingly has the power and intent at a

given time to exercise dominion or control over an object.” United States v. Little,

829 F.3d 1177, 1182 (10th Cir. 2016).

Generally, to prove possession, the government must show some nexus, link, or other connection between the defendant and the contraband beyond mere co-occupancy of the premises. Mere proximity to [prohibited items], mere presence on the property where they are located, or mere association with persons who do control them, without more, is insufficient to support a finding of possession. In other words, the government must show some evidence, beyond mere proximity, that a defendant knew about the [prohibited items]. United States v. Banks, 884 F.3d 998, 1017 (10th Cir. 2018) (citations, brackets, and

internal quotation marks omitted).5 The United States can satisfy this burden by

4 The district court did not expressly find that Lujan possessed the knives. It found that he violated a condition of his supervised release by having access to dangerous weapons. See R., Vol. 3 at 60. 5 Lujan incorrectly asserts that the United States must show that he, and only he, possessed the prohibited items. See Aplt. Br. at 12-13. This contention misreads the case he cites, United States v. King, 632 F.3d 646, 651 (10th Cir. 2011), see Aplt. Br. at 11. In King, we initially held that evidence of a defendant’s “exclusive possession over the premises” would be sufficient to support an “inference of knowing dominion over or control of” an item found at that premises. Id. at 651. But we held that control or dominion over a premises is a factor rather than a requirement. See id. And we set forth the nexus test applicable to “situations of joint occupancy.” Id. That test does not require a showing of exclusive control over the premises or over a particular item. 9 Appellate Case: 21-2107 Document: 010110689388 Date Filed: 05/26/2022 Page: 10

presenting either direct or circumstantial evidence supporting a plausible inference

that Lujan knew of and had access to the prohibited items in the trailer. See United

States v. Bowen, 437 F.3d 1009, 1014-15 (10th Cir. 2006) (concluding there was

sufficient circumstantial evidence to establish a nexus between the defendant and

drugs found in a car).

Lujan’s primary contention is that the record lacks evidence that he had

knowledge of any of the prohibited items. To be sure, there was no direct evidence

of his knowledge of the heroin, alcohol, or the knives (or of his intent to control these

items, which he does not directly dispute). But the totality of the circumstantial

evidence supports the district court’s findings that he unlawfully possessed the

heroin, possessed the alcohol, and had access to the knives. And the court’s findings

were not based solely on proximity.

The trailer’s status as Lujan’s residence was strongly supported by the

evidence; he was not “mere[ly] presen[t] on the property.” Banks, 884 F.3d at 1017.6

The knives were found in his bedroom, among his many other belongings, and there

was also a gun holster in the bedside table. This supports an inference of both access

to and knowledge of the knives, which Lujan does not dispute qualify as dangerous

weapons. See United States v. McCoy, 781 F.2d 168, 170-71 (10th Cir. 1985)

(upholding factual finding of constructive possession of firearms “found . . . in the

6 Lujan asserts there was no evidence the prohibited items had not been left in the trailer at some time after he stayed there. But the extent of his personal belongings discovered in the trailer supported a reasonable inference that he was residing there at the time of the search. 10 Appellate Case: 21-2107 Document: 010110689388 Date Filed: 05/26/2022 Page: 11

bedroom where [the defendant] slept and at his residence” and in close proximity to

his other personal possessions). The heroin and alcohol were found in common areas

of the trailer that a joint resident would regularly access, also supporting at least an

inference of access. See United States v. Gambino-Zavala, 539 F.3d 1221, 1230

(10th Cir. 2008). And the large amount of alcohol in the kitchen cabinet also

supports an inference of knowledge as to that prohibited item. See id.

Moreover, the district court did not believe Lujan’s assertion that he lacked

knowledge of these items. In this regard, it noted his extensive efforts to conceal his

violative conduct from his PO: he stopped affirmatively reporting to the PO and did

not respond to her communications; he signed a lease for the trailer but failed to

report he was living there (conduct the court characterized as reckless and

irresponsible), thereby avoiding the PO’s process for approving his residence; he was

in a relationship with and living with a convicted felon; he did not report quitting his

job yet made a $14,000 deposit into his bank account, which he did not sufficiently

explain; and he was using multiple cars, some of which he failed to report to the PO.

The court described Lujan’s conduct as “troubling” and “reminiscent of [his] past

life.” R., Vol. 3 at 64. In addition, there was other evidence of Lujan’s suspicious

and evasive behavior. The PO testified that Lujan appeared to be swapping out

memory cards on his cell phone, which the PO was unable to search because Lujan

provided incorrect passwords. There was also a television in his bedroom at the

trailer that displayed the feed from security cameras on the property. And when the

PO confronted Lujan about his unauthorized residence—a charge he eventually

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admitted—he denied living there rather than replying with candor. When all of the

evidence is taken into account, it was sufficient to prove by a preponderance of the

evidence that Lujan constructively possessed the heroin and alcohol and had access

to the knives found in the trailer.7

III. Conclusion

We affirm the district court’s judgment.

Entered for the Court

Bobby R. Baldock Circuit Judge

7 Although the circumstantial evidence of Lujan’s knowledge was weakest with respect to “the small amount of heroin in a tin can container that was found in the couch in the living room,” R., Vol. 3 at 18, we conclude the evidence as a whole sufficiently supported the district court’s finding that he unlawfully possessed a controlled substance. But even if the court erred as to that one finding, any error was harmless. A single violation was sufficient to revoke Lujan’s supervised release. See § 3583(e)(3) (permitting revocation upon proof of a violation of “a” condition of supervised release). Lujan admitted two such violations, both of which—like unlawful possession of a controlled substance—were grade C violations; thus, the admitted violations would have resulted in the same guidelines range. See R., Vol. 3 at 5. The district court sentenced Lujan at the bottom of that range. In doing so, it did not cite 18 U.S.C. § 3583(g), which mandates a term of imprisonment when a defendant possesses a controlled substance. And nothing in the court’s discussion suggests it would have imposed a below-guidelines sentence or granted Lujan’s request to hold the revocation petition in abeyance but for its heroin-possession finding. Because we conclude it is more likely than not that the district court would have imposed the same four-month sentence, any error in that finding did not have a substantial influence on the outcome and was therefore harmless. See Jones, 818 F.3d at 1101.