                                                             FILED
                                                 United States Court of Appeals
                  UNITED STATES COURT OF APPEALS         Tenth Circuit

                         FOR THE TENTH CIRCUIT                      June 11, 2020
                       _________________________________
                                                                Christopher M. Wolpert
                                                                    Clerk of Court
    UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                    No. 19-2136
    v.                                    (D.C. No. 1:18-MJ-02490-JCH-1)
                                                     (D. N.M.)
    GREGORY HAMILTON,

          Defendant - Appellant.
                      _________________________________

                          ORDER AND JUDGMENT *
                       _________________________________

Before BRISCOE, BACHARACH, and McHUGH, Circuit Judges.
                 _________________________________

         Mr. Gregory Hamilton was driving on federal lands when he had a

car accident after consuming alcohol. He was ultimately convicted of two

misdemeanors: (1) driving under the influence on federal lands and

(2) unsafely operating a motor vehicle on federal lands. Mr. Hamilton




*
      Oral argument would not materially help us to decide this appeal. We
have thus decided the appeal based on the appellate briefs and the record
on appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

      This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value if
otherwise appropriate. Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
challenges the convictions based on insufficiency of the evidence. We

affirm.

1.    Standard for Sufficiency of the Evidence

      We conduct de novo review, applying the same standard that

governed in district court. United States v. Flanders, 491 F.3d 1197, 1207

(10th Cir. 2007). The district court was to view the evidence and

reasonable inferences favorably to the government and determine whether a

fact finder could rationally find guilt beyond a reasonable doubt. United

States v. Cope, 676 F.3d 1219, 1225 (10th Cir. 2012).

2.    Driving Under the Influence of Alcohol

      To obtain a conviction for driving under the influence of alcohol, the

government had to prove that Mr. Hamilton

          was operating a motor vehicle

          while under the influence of alcohol to a degree that rendered
           him unable to safely operate a vehicle

          on federal lands administered by the National Park Service.

See United States v. Atkinson, 128 F. App’x 64, 65 (10th Cir. 2005)

(unpublished). 1 Mr. Hamilton does not challenge the sufficiency of

evidence that he was driving a motor vehicle on federal lands administered

by the National Park Service. He instead confines his challenge to the



1
      Although Atkinson is not precedential, we regard it as a persuasive
statement of the elements.
                                     2
sufficiency of evidence that he was under the influence of alcohol to a

degree that he couldn’t safely operate a vehicle.

      Mr. Hamilton argues that the government needed to prove that his

blood-alcohol content was 0.08% or higher. We disagree. The crime is

governed by 36 C.F.R. § 4.23(a)(1), and it does not provide a minimum

blood-alcohol content. A separate offense (governed by § 4.23(a)(2))

requires a blood-alcohol content of 0.08% or higher. But the law elsewhere

states that if the driver’s blood-alcohol content is lower than 0.08%, “this

fact does not give rise to any presumption that the operator . . . is not

under the influence of alcohol.” 36 C.F.R. § 4.23(d)(1). So “§ 4.23(a)(1)

does not require the government to prove the defendant’s blood alcohol

level.” United States v. Smith, 701 F.3d 1002, 1005 (4th Cir. 2012).

      Though the evidence didn’t include testing of Mr. Hamilton’s blood-

alcohol content, the government presented substantial evidence of

intoxication. A ranger testified that he had

           heard Mr. Hamilton speak with slurred speech,

           smelled alcohol on his breath,

           observed that his eyes were bloodshot, and

           seen him drive into a parked jeep, nearly collide with a second
            car, and perform poorly on multiple field sobriety tests.

Mr. Hamilton also acknowledged that he had consumed two beers. And

when the ranger asked Mr. Hamilton if he was okay, he responded by

                                       3
asking what had happened. This combination of evidence could permit a

reasonable finding that Mr. Hamilton had consumed enough alcohol to

prevent him from driving safely.

     Mr. Hamilton points to various opinions interpreting the phrase

“under the influence” as “intoxicated” or “drunk.” But none of these cases

involve § 4.23(a)(1). This section defines being “under the influence” as

having consumed enough alcohol to render the driver “incapable of safe

operation.” 36 C.F.R. § 4.23(a)(1). We must interpret the regulatory

language rather than apply opinions interpreting other statutory definitions

of “under the influence.” Applying the regulatory language, we conclude

that the fact finder could rationally find that Mr. Hamilton had consumed

enough alcohol to render him unable to safely operate a vehicle.

3.   Unsafe Operation of a Motor Vehicle

     The evidence was also sufficient to support the conviction of

unsafely operating a motor vehicle. Mr. Hamilton was driving about five

miles per hour when he hit one vehicle and nearly hit another. After the

accident, Mr. Hamilton asked the ranger what had happened. And, as noted

above, the ranger testified that Mr. Hamilton had performed poorly on




                                     4
multiple field sobriety tests. In these circumstances, a reasonable fact

finder could find that Mr. Hamilton had unsafely operated a motor vehicle.

      Affirmed.



                                    Entered for the Court


                                    Robert E. Bacharach
                                    Circuit Judge




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