United States of America v. Hernandez Allen

United States Court of Appeals
For the Eighth Circuit
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No. 14-1999
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Hernandez Allen
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: January 16, 2015
Filed: March 23, 2015
[Unpublished]
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Before COLLOTON, BEAM, and KELLY, Circuit Judges.
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PER CURIAM.
In December 2011, Hernandez Allen was convicted in federal court of a
firearms offense and sentenced to thirty months in prison and twenty-four months of
supervised release. He completed his term of incarceration in September 2013, and
commenced the period of supervision. In March 2014, Allen's probation officer and
police officers conducted a random search of Allen's residence. The officers found

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approximately 35 grams of marijuana, a knife, a cutter, a scale, several marijuana
pipes, and several empty baggies with marijuana residue. The marijuana, knife, scale,
one of the pipes and some of the baggies were found in Allen's bedroom dresser. The
cutter and some pipes were found in Allen's son's car, which was located on the
premises. Allen told the probation officers that the 35 grams of marijuana belonged
to his son, who had a "side hustle" going on, and that Allen was set to confront his
son about the drugs when his son returned home the following week.
Based upon this incident, a petition was filed for a warrant for Allen's arrest,
alleging several violations of his supervised release, including that he possessed
marijuana with the intent to distribute it. At the evidentiary hearing on the matter, in
addition to the evidence uncovered during the March 2014 search, the government
produced evidence that Allen had been arrested for committing a state crime while
under supervision; that he had failed to report his change in employment status; and
that he failed several drug tests, which were positive for marijuana use. All of these
were violations of his conditions of supervised release, and at the hearing, Allen
admitted all of the violations except the one related to the March 2014 search. Allen
specifically contested that he possessed marijuana with the intent to distribute, as
alleged by the government. The probation officer who conducted the search testified
at the hearing that although Allen stated that the marijuana belonged to his son and
that the son was selling it, none of the marijuana was found in the son's room. The
officer also acknowledged that the drug tests indicated that Allen was an active user,
but she also testified that it was unclear where Allen was obtaining the funds to
purchase the marijuana that he was consuming, because Allen acknowledged to her
that money was tight. A police officer testified that in his experience, the amount of
marijuana found was a borderline amount between personal use and that used for
distribution. The officer further testified that the marijuana seized was of a high
grade, and that while the pipes indicated usage, the scale indicated distribution.
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The district court ultimately concluded that, considering the quantity and1
quality of the marijuana, and the presence of the scale and baggies, there was enough
evidence to support the finding that Allen possessed the marijuana with intent to
distribute it. Accordingly, this was a "Grade A" violation with a Guidelines range of
18-24 months in prison, and the court sentenced Allen to 18 months in prison, to be
followed by 12 months of supervised release. Allen appeals, challenging the Grade
A finding as a non-harmless procedural error that affected his sentence.
A district court may revoke a defendant's supervised release if the court finds,
by a preponderance of the evidence, that the defendant violated a condition of his
supervised release. United States v. Frosch, 758 F.3d 1012, 1014 (8th Cir. 2014). We
review the district court's revocation decision for an abuse of discretion, and its
factual findings for clear error. Id. The district court's credibility determinations at
a revocation hearing are virtually unreviewable on appeal. United States v. Cates,
613 F.3d 856, 858 (8th Cir. 2010). The district court did not clearly err in finding that
the marijuana was of a high grade and that Allen possessed drug-dealing
paraphernalia. Allen contended that the drugs belonged to his son. He told the
probation office that he intended to confront his son about the drugs. He did not say
that he intended to use the marijuana himself, and the district court thus did not
believe that Allen possessed the drugs for personal use. The court found that given
the high quality of the marijuana, Allen was not likely to throw it away, and the court
was not convinced that Allen possessed the drugs merely to keep them away from his
son. The only persuasive scenarios remaining and cited by the court were that Allen
would return the drugs to his son, or that he would sell or otherwise distribute the
drugs himself. In any of those circumstances, Allen possessed the drugs with intent
to distribute. The district court did not clearly err in so finding.
The Honorable Carol E. Jackson, United States District Judge for the Eastern1
District of Missouri.
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Our task is not to decide what conclusion we might have reached, but rather
whether the district court's fact-finding amounts to clear error. Id. In this case, while
we might agree with Allen that it was a close call as to whether he was using instead
of selling the marijuana, there is support for the district court's conclusion that Allen
intended to distribute marijuana. Accordingly, we affirm.
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