United States v. Vasquez-Landaver

128 F.4th 358

• Court: Court of Appeals for the First Circuit
• Decided: February 19, 2025
• Docket: 24-1010
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 24-1010

UNITED STATES OF AMERICA,

Appellee,

v.

GUILLERMO VASQUEZ-LANDAVER, a/k/a Jute,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

[Hon. George Z. Singal, U.S. District Judge]

Before

Barron, Chief Judge, Selya and Rikelman, Circuit Judges.

Robert C. Andrews, with whom Robert C. Andrews Esquire P.C. was on brief, for appellant. Lindsay B. Feinberg, Assistant United States Attorney, with whom Darcie N. McElwee, United States Attorney, was on brief, for appellee.

February 19, 2025 SELYA, Circuit Judge. Defendant-appellant Guillermo

Vasquez-Landaver, while on supervised release, violated various

court-imposed conditions. He now challenges the reliability of

the evidence supporting one of those findings. We affirm.

I

We first rehearse the relevant facts (which are largely

undisputed) and travel of the case. In 2016, the defendant was

sentenced to 120 months of imprisonment, to be followed by sixty

months of supervised release, for crimes that he committed as a

member of the criminal gang MS-13. Along with his sentence, the

court imposed several conditions of supervised release. Among

other things, the defendant was to abstain from drugs and alcohol,

refrain from committing another crime, report to his probation

officer as directed, and remain in the District of Maine unless he

received approval to travel outside the district.

The defendant served his prison sentence and his

supervised release term commenced in February of 2020. He did not

comply with the release conditions. On September 18, 2023, his

probation officer submitted a petition to the district court

seeking to revoke the defendant's supervised release. The

petitioner alleged that between 2020 and 2023, the defendant

violated his release conditions in a number of ways: he left Maine

without permission, used illegal drugs and alcohol, failed to

report to his probation officer, and operated a motor vehicle while

- 2 - intoxicated.1 It also alleged that on October 20, 2021, the

defendant violated state and federal laws when he "propositioned"

a woman in a parking lot and "asked her if she liked cocaine" while

he was in the possession of that drug.

On December 18, 2023, the district court held a hearing

on the petition. The defendant admitted to all of the violations

except for the one based on the events of October 20, 2021. He

also admitted to all of the events described in the petition. He

disputed, however, the "legal consequences" of the events of

October 20.

The government proffered three witnesses to tell the

tale of the events of October 20. That day, a detective from the

Westbrook, Maine police department responded to a 911 call from a

local motel. The caller reported that a woman (the complainant)

was distressed because a man — later determined to be the defendant

— had propositioned and harassed her in the motel parking lot.

The detective testified that he arrived at the motel and

spoke with the complainant, who was "crying and visibly shaking."

She reported that the defendant had approached her in the parking

lot, told her that she was pretty, and asked her on a date. He

also asked her if she liked cocaine. He then sought her phone

1 Although the record is not crystal clear, it appears that the defendant was placed on bail after being charged with operating under the influence. In one way or another, he was subject to state bail conditions by October of 2021.

- 3 - number and, upon receiving it, called her phone to ensure that she

had given him the correct number.

After hearing this account, the detective approached and

spoke with the defendant who was sitting in his Jeep in the motel

parking lot. The detective confirmed that the defendant was on

bail and that his bail conditions authorized random searches for

drugs or alcohol without reasonable suspicion or probable cause.

Based on the complainant's narrative, including the mention of

cocaine, the detective decided to search the defendant's person

and vehicle. In the trunk of the Jeep, he found a plastic bag

inside the pocket of a jacket. The plastic bag contained seven

smaller plastic bags, each containing white powder that the

detective suspected was cocaine. The detective testified that the

smaller bags were "what's called a Dominican tie," which is

"basically the corner of a sandwich bag, the drugs are placed in

the corner and ripped off and then a knot is tied in." The

detective testified that such Dominican ties are "fairly typical

of drug packaging" and consistent with distribution.

The detective arrested the defendant and took the

plastic bag into evidence. A field test of the white powder tested

presumptively positive for cocaine. The plastic bag containing

the seven smaller bags was weighed and registered 7.69 grams.2 The

2 The detective testified that the drugs were not unpackaged before being weighed because presumptive drug field tests can be

- 4 - detective testified that, in his training and experience, the

weight of the plastic bags themselves — as opposed to their

contents — was relatively small. He estimated that each smaller

bag likely contained around one gram of cocaine because typically

drugs packaged for sale are packaged "right around the same weight"

in "whole amounts."

Another officer who arrived on the scene while the

detective was speaking with the defendant also testified at the

revocation hearing. He, too, testified that the Dominican ties

found in the defendant's possession were "indicative of

distribution," were packaged to be "roughly the same size," and

that the weight of the plastic bags themselves (as opposed to the

cocaine therein) was only "a small portion" of the gross weight.

The defendant did not contest much of the testimony

presented at the hearing. For example, he did not dispute that he

possessed cocaine. Nor did he deny other facts, such as the fact

that he asked the complainant if she liked cocaine. But despite

those broad areas of agreement, he steadfastly maintained that the

evidence was insufficient for the court to determine the weight of

the cocaine itself (as opposed to the combined weight of the

cocaine and its packaging).

used while drugs are still in their packaging and because, due to the dangers posed by street drugs such as fentanyl (even small amounts of which can be fatal), officers typically do not unpackage drugs.

- 5 - At the conclusion of the hearing, the district court

found that the defendant had violated the conditions of his release

by possessing cocaine with the intent to distribute. The district

court reasoned that the defendant had offered the complainant

cocaine, which suggested that he was prepared to supply it to her

either for or on a potential date. It also found that the

individual-sized packaging and number of packages were indicative

of distribution.

Separately, the district court found that Maine law

permitted the defendant's intent to distribute to be inferred from

his possession of more than two grams of cocaine. In Maine,

"[p]roof that [a] person intentionally or knowingly possesses"

more than two grams of cocaine "gives rise to a permissible

inference" that "the person is unlawfully furnishing" cocaine.

Me. Rev. Stat. Ann. 17-A, § 1106(3). The district court found

that the defendant possessed more than two grams of cocaine,

reasoning:

It's common sense that lightweight plastic bags, which [the bags here] clearly appeared to be, aren't going to be over five grams and the drugs under two grams. . . . I believe that drugs are distributed in multiple little bags in a weight that . . . the seller intends to be consistent from bag to bag, and that would be seven grams in this case, one gram each, with the rest of the weight either being slight increases in the weight of the drugs or consistent with the weight of the plastic, though I don't think even the plastic would weigh .69.

- 6 - The court drew the permissible inference under state law to find

that the defendant had the requisite intent to distribute.

After determining that the defendant had violated Maine

law, see Me. Rev. Stat. Ann. 17-A, § 1106, the district court

concluded that this state-law offense constituted a violation of

the condition barring the commission of another crime. The

sentencing guidelines place this violation at Grade A.3 See USSG

§7B1.1(a). In conjunction with the defendant's criminal history

category, the district court calculated an advisory guideline

range of fifty-one to sixty-three months' imprisonment. The court

proceeded to revoke the defendant's supervised release and to

impose a sixty-month term of immurement.

This timely appeal ensued. In it, the defendant

challenges the district court's finding that he committed the Grade

A violation on his term of supervised release.

II

We review a district court's decision to revoke

supervised release for abuse of discretion. See United States v.

3 Supervised release violations are classified as Grade A, B, or C. See USSG §7B1.1(a). Grade A violations "are the most serious." United States v. Teixeira, 62 F.4th 10, 16 n.1 (1st Cir. 2023). They extend to conduct that constitutes "a federal, state, or local offense punishable by a term of imprisonment exceeding one year that . . . is a controlled substance offense." USSG §7B1.1(a)(1). The state law violation at issue here is punishable by a term of imprisonment of more than one year. See Me. Rev. Stat. Ann. 17-A, §§ 1106(1-A), 1102(1)(F), 1604(1)(C).

- 7 - Rodriguez, 919 F.3d 629, 634 (1st Cir. 2019). We remain "mindful,

though, that a material error of law always amounts to an abuse of

discretion." Id. Within this rubric, we examine the district

court's factual findings — including its finding of a violation of

supervised release — for clear error. See United States v.

Teixeira, 62 F.4th 10, 24 (1st Cir. 2023). The clear error

standard requires that, in reviewing the record as a whole, "we

form a strong, unyielding belief that a mistake has been made."

United States v. Franklin, 51 F.4th 391, 399 (1st Cir. 2022)

(quoting United States v. Padilla-Galarza, 990 F.3d 60, 73 (1st

Cir. 2021)).

III

The defendant submits that the district court relied on

untrustworthy evidence to find that he intended to furnish cocaine.

He says that because the government offered no evidence that

specifically segregated the weight of the cocaine from its

packaging, the district court was not at liberty to determine the

weight of the raw cocaine (as opposed to the weight of the packaged

cocaine). Thus, the district court clearly erred when it found

that the cocaine itself weighed more than two grams. And without

a finding that the defendant possessed more than two grams of

cocaine, the court could not use the Maine statute to infer intent

to furnish. See Me. Rev. Stat. Ann. 17-A, § 1106(3)(B). Stripped

- 8 - of the statutory inference, the remaining circumstances of the

interaction were insufficient to show intent.

We begin with a key fact on which this issue turns:

whether the district court clearly erred when it found that the

defendant possessed more than two grams of cocaine. The defendant

characterizes the district court's finding on this issue as "little

more than a guess." Because the drugs were weighed while still in

their packaging, the defendant suggests that the district court

had no reliable way to determine their actual weight. This

suggestion, though, is belied by the record.

The district court heard the testimony of two trained

law enforcement officers, each of whom testified that the weight

of the plastic packaging was merely a small fraction of the total

measured weight. The court credited the officers' testimony that

each of the seven small bags contained around one gram of cocaine

such that the seven bags plus their lightweight packaging totaled

7.69 grams in weight. Crediting this testimony and making use of

its own "common sense," the district court reasonably inferred

that the bags themselves "aren't going to be over five grams and

the drugs under two grams." See, e.g., Teixeira, 62 F.4th at 19

("A judge, sitting as a factfinder, is allowed — indeed, obliged

— to bring to bear his own knowledge and experience in evaluating

the evidence admitted in the case.").

- 9 - This factfinding, though inferential, was a far cry from

clear error. "The decision to credit [a law enforcement officer]'s

testimony [i]s quintessentially a decision for the factfinder."

Id. at 24. Here, moreover, the court heard no evidence to suggest

that the cocaine weighed less than two grams while the plastic

packaging weighed over five grams. "A finder of fact need not

countenance an implausible interpretation of the facts over a

probable one." Franklin, 51 F.4th at 398. Inasmuch as the

officers' "testimony is plausible on its face and not inconsistent

with the other information that is known about the events in

question, the district court's finding warrants our approbation."

United States v. Romain, 393 F.3d 63, 69 (1st Cir. 2004). And

even were we prepared to abandon common sense and deem it plausible

that the cocaine comprised only one-fourth of the package's total

weight, "[a] district court's choice between two plausible, but

conflicting, interpretations of a factual scenario cannot amount

to clear error." United States v. Carrasco, 540 F.3d 43, 49 (1st

Cir. 2008) (quoting Valentin v. Hosp. Bella Vista, 254 F.3d 358,

367 (1st Cir. 2001)). Accordingly, we discern no clear error in

the district court's finding that the defendant possessed more

than two grams of cocaine on October 20, 2021.

In Maine, the possession of more than two grams of

cocaine "establishes a presumption of furnishing." State v.

Deering, 706 A.2d 582, 584 (Me. 1998) (emphasis omitted) (citing

- 10 - Me. Rev. Stat. Ann. 17-A, § 1106(3)). This presumption "eases the

[government]'s burden of establishing the intent element of the

crime of possession with intent to transfer." Id. at 584-85

(emphasis omitted). The district court appropriately applied the

presumption, and the defendant offered no evidence to rebut it.

And aside from the amount of cocaine, the other record facts

support the district court's finding that the defendant possessed

cocaine with the intent to furnish. The defendant inquired if the

complainant liked cocaine as he asked her for a date — and he did

so while in possession of seven small bags of cocaine that were

packaged for individual distribution. The district court inferred

from these facts that the defendant "was offering" cocaine to the

complainant, because "he wouldn't have [asked] her [do] you like

[cocaine] if he wasn't prepared to supply it for the date or on

the date." We do not disturb "findings of fact or conclusions

drawn therefrom" unless our review of the entire record leaves us

with the firm conviction that a mistake has been made. Padilla-

Galarza, 990 F.3d at 73 (quoting Cumpiano v. Banco Santander P.R.,

902 F.2d 148, 152 (1st Cir. 1990)). Here, we are left with no

such conviction: under the circumstances, it is altogether

reasonable to infer that the defendant was prepared to furnish the

complainant with cocaine.4 See State v. Baker, 409 A.2d 216, 219

We are not persuaded by the defendant's remaining arguments 4

to the contrary. As to his suggestion that the scale may have

- 11 - (Me. 1979) (considering amount of drugs and packaging indicative

of distribution in drawing inference of intent to furnish).

Finally, this conclusion is bolstered by reason of the

applicable burden of proof. The district court may find a

violation of a supervised release condition as long as the

government proves that violation by a preponderance of the

evidence. See Rodriguez, 919 F.3d at 637. We are confident that

the government carried that burden here.

IV

We need go no further. The district court's

determination that the defendant intended to furnish cocaine and,

thus, that he violated a condition of his supervised release

withstands the defendant's attack. The judgment of the district

court is, therefore,

Affirmed.

been faulty, no evidence in the record supports that view. And as to his contention that the packaging suggests personal use, we reiterate that — under the clear error standard — a competing plausible inference is insufficient to warrant reversal.

- 12 -