                                                                                 FILED
                                                                     United States Court of Appeals
                                      PUBLISH                                Tenth Circuit

                      UNITED STATES COURT OF APPEALS                       December 23, 2019

                                                                         Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                            Clerk of Court
                        _________________________________

 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,
                                                             No. 18-1449
 v.

 DANIEL ADOLPH RODRIGUEZ,

       Defendant - Appellant.
                      _________________________________

                     Appeal from the United States District Court
                             for the District of Colorado
                          (D.C. No. 1:14-CR-00377-RM-1)
                       _________________________________

Grant R. Smith, Assistant Public Defender (Virginia L. Grady, Federal Public Defender,
and Shira Kieval, Assistant Federal Public Defender, on the briefs), Denver, Colorado,
for Defendant - Appellant.

Kelly R. Winslow, Assistant United States Attorney (Jason R. Dunn, United States
Attorney, with her on the brief), Denver, Colorado, for Plaintiff - Appellee.
                        _________________________________

Before TYMKOVICH, Chief Judge, MATHESON, and McHUGH, Circuit Judges.
                 _________________________________

McHUGH, Circuit Judge.
                    _________________________________


      Daniel Adolph Rodriguez appeals his sentence for a supervised release

violation, arguing the district court misapplied Colorado law in determining the grade
of his offense under the Guidelines. Because the district court could have reached the

same result by applying federal law, we affirm.

                                 I.     BACKGROUND
      In 2015, Mr. Rodriguez was convicted of being a felon in possession of a

firearm in violation of 18 U.S.C. § 922(g)(1), and he was sentenced to 51 months’

imprisonment followed by three years’ supervised release. Mr. Rodriguez began his

term of supervised release on May 10, 2018.

      On October 4, 2018, Mr. Rodriguez’s probation officer petitioned the district

court for an arrest warrant and revocation of Mr. Rodriguez’s supervised release,

alleging, among other violations, two instances of “possession and use of a controlled

substance.” App., Vol. I at 19–20. The petition noted that Mr. Rodriguez had

admitted in writing to using cocaine and, on another occasion, had tested positive for

cocaine. The district court granted the petition and issued an arrest warrant. When

officers arrested Mr. Rodriguez, a search of his residence “revealed a fully loaded .38

special revolver, .38 caliber ammunition, suspected cocaine base, suspected

marijuana, and drug paraphernalia.” Id., Vol. II at 6.

      At his sentencing hearing on November 19, 2018, Mr. Rodriguez admitted to

one instance of “possession and use of a controlled substance,”1 along with several

other violations of his supervised release conditions. Mr. Rodriguez further


      1
         The allegation Mr. Rodriguez admitted to was based on Mr. Rodriguez’s
earlier statements that he had used cocaine. The Government stated at the revocation
hearing that it was withdrawing the other “possession and use of a controlled
substance” allegation that was based on a positive drug test. App., Vol. III at 5–6.
                                           2
“stipulate[d] that there [was] a factual basis for each of these violations,” although he

did not elaborate on the details of that factual basis. Id., Vol. III at 16–17.

       The district court determined, over Mr. Rodriguez’s objection, that

Mr. Rodriguez’s conduct constituted possession of cocaine under Colorado law, an

offense punishable by more than one year’s imprisonment, and was therefore a Grade

B violation of his supervised release conditions. The district court declined to analyze

whether Mr. Rodriguez’s conduct would have constituted a Grade B or a Grade C

violation under federal law. It sentenced Mr. Rodriguez to 21 months’ imprisonment

(the Government’s recommended sentence, at the low end of the Grade B range).

Explaining its choice of sentence, the district court emphasized the danger

Mr. Rodriguez posed to the public because of his history of repeated drug use while

in possession of a firearm. Mr. Rodriguez timely appealed.

                                   II.        DISCUSSION

                                A.        Standard of Review

       We review the district court’s application of the Sentencing Guidelines for abuse

of discretion. United States v. Martinez, 512 F.3d 1268, 1275 (10th Cir. 2008). In

applying that standard, we review questions of law de novo and factual findings for clear

error, “giving due deference to the district court’s application of the Guidelines to the

facts.” United States v. Pentrack, 428 F.3d 986, 989 (10th Cir. 2005).

                                         B.     Analysis

       “In imposing a sentence for a violation of supervised release, a district court is

required to consider the policy statements contained in Chapter 7 of the Sentencing

                                                3
Guidelines . . . .” United States v. Ortiz-Lazaro, 884 F.3d 1259, 1262 (10th Cir. 2018).

Chapter Seven of the Sentencing Guidelines establishes three categories of supervised

release violations based on severity of the violation: Grade A (not at issue here) includes

certain enumerated offenses that are “punishable by a term of imprisonment exceeding

one year,” as well as “any other federal, state, or local offense punishable by a term of

imprisonment exceeding twenty years.” U.S.S.G. § 7B1.1(a)(1). Grade B encompasses

“conduct constituting any other federal, state, or local offense punishable by a term of

imprisonment exceeding one year.” Id. § 7B1.1(a)(2). Finally, Grade C encompasses

“conduct constituting (A) a federal, state, or local offense punishable by a term of

imprisonment of one year or less; or (B) a violation of any other condition of

supervision.” Id. § 7B1.1(a)(3). If a supervisee commits “more than one violation of the

conditions of supervision, or the violation includes conduct that constitutes more than one

offense, the grade of the violation is determined by the violation having the most serious

grade.” Id. § 7B1.1(b). For a defendant like Mr. Rodriguez with a criminal history

category of VI, a Grade C violation carries a recommended sentence of 8–14 months’

imprisonment, while a Grade B violation carries a recommended sentence of 21–27

months’ imprisonment.2 See id. § 7B1.4(a).

       Mr. Rodriguez argues the district court improperly classified his conduct as a

Grade B violation rather than a Grade C violation because it wrongly determined that his


       2
        Any sentence imposed upon revocation of Mr. Rodriguez’s supervised
release would have been statutorily capped at 24 months. See 18 U.S.C.
§§ 3583(e)(3), 3559(a).

                                             4
conduct was punishable by a term of imprisonment exceeding one year under Colorado

law.3 First, he argues that “no Colorado case has held that a defendant can be charged

with (let alone convicted of) possession of a controlled substance based solely on prior

use[,] . . . a positive urine test[,] . . . [or] a positive urine test, in combination with the

admission of voluntary use.” Aplt. Op. Br. at 13–14. On the other hand, as the

Government observes, the Colorado Supreme Court has repeatedly affirmed (albeit under

different facts than those at play here) the logic that “[t]o use [a controlled substance],

[one] must first possess it.” People v. Cagle, 751 P.2d 614, 620 (Colo. 1988); see also

Campbell v. People, 73 P.3d 11, 14 (Colo. 2003) (“[U]se is preceded by possession.”).

Second, Mr. Rodriguez argues the district court erred by considering the fact that

Mr. Rodriguez was on supervised release when he committed the offense, thus increasing




       3
         Mr. Rodriguez also argues in his reply brief that the Colorado Constitution
forbids punishing a person for possession of drugs solely on the basis of use.
Colorado courts have held that the due process clause of the Colorado Constitution
includes a guarantee of “equal protection of the laws.” People v. Oliver, 745 P.2d
222, 227 (Colo. 1987). “When two criminal statutes prescribe different penalties for
identical conduct, a defendant convicted and sentenced under the harsher statute is
denied equal protection of the laws.” Id. (quoting People v. Mozee, 723 P.2d 117, 126
(Colo. 1986)). Underlying this rule is the notion that “[s]tatutory classifications of
crimes must be based on differences that are real in fact and reasonably related to the
purposes of the legislative enactments.” Mozee, 723 P.2d at 126; see also, e.g.,
People v. Abiodun, 87 P.3d 164, 167 (Colo. App. 2003) (noting that “convictions for
possession and use must merge because no possible scenario exists where use of a
controlled substance can occur without possession”). Because Mr. Rodriguez failed
to raise this argument until his reply brief, he has waived it. United States v. Henry,
852 F.3d 1204, 1207 n.1 (10th Cir. 2017). Moreover, even assuming (without
deciding) the argument has merit, we would still affirm on the alternative ground
discussed in the body of our opinion.
                                                 5
his maximum sentence under Colorado law from one year to two years.4 Citing

Application Note Five of U.S.S.G § 7B1.1, along with Blakely v. Washington, 542 U.S.

296 (2004), and Lopez v. People, 113 P.3d 713 (Colo. 2005), Mr. Rodriguez argues a

district court may not consider a defendant’s supervisee status when grading a supervised

release violation.5 The Government argues in response that Application Note Five has no

relevance to this case and that the authority Mr. Rodriguez cites is distinguishable.

       We need not resolve this dispute over the proper application of Colorado law

because we can affirm the district court on the alternative ground that Mr. Rodriguez’s

conduct was punishable by more than one year under federal law. We are “free to affirm



       4
         The district court treated Mr. Rodriguez’s supervisee status as analogous to
various forms of state supervision, such as parole and probation, that trigger an
aggravated sentencing range under Colorado law. Mr. Rodriguez does not challenge
the district court’s comparison of federal supervised release and state supervision on
appeal.
       5
         Although we do not resolve this issue here, it is worth noting that both the
U.S. Supreme Court in Blakely, and the Colorado Supreme Court in Lopez, were
dealing with trial courts’ sentencing decisions in the first instance—not supervised
release revocation hearings. See Blakely v. Washington, 542 U.S. 296, 299 (2004);
Lopez v. People, 113 P.3d 713, 715–16 (Colo. 2005). Both decisions held that a
sentencing court may not depart from a statutory sentencing range based on a judicial
determination that a statutory aggravating factor applies, because doing so violates
the defendant’s Sixth Amendment right to a jury trial. See also Apprendi v. New
Jersey, 530 U.S. 466, 490 (2000) (“Other than the fact of a prior conviction, any fact
that increases the penalty for a crime beyond the prescribed statutory maximum must
be submitted to a jury, and proved beyond a reasonable doubt.”). The right to a jury
trial does not apply in a supervised release revocation hearing where the maximum
sentence “could not exceed the remaining balance of the term of imprisonment
already authorized by the [original conviction].” United States v. Haymond, 139 S.
Ct. 2369, 2377 (2019); see id. at 2379–81 (discussing the interaction between the
Sixth Amendment right to a jury trial and the procedure for revocation of supervised
release).
                                             6
a district court decision on any grounds for which there is a record sufficient to permit

conclusions of law, even grounds not relied upon by the district court.” United States v.

Sandoval, 29 F.3d 537, 542 n.6 (10th Cir. 1994) (quotation marks omitted). “In

exercising that discretion,” we consider “whether the ground was fully briefed and argued

here and below, whether the parties have had a fair opportunity to develop the factual

record, and whether, in light of factual findings to which we defer or uncontested facts,

[our] decision would involve only questions of law.” Feinberg v. Comm’r, 916 F.3d

1330, 1334 (10th Cir. 2019) (quotation marks omitted). These factors support reaching

the alternative ground the Government urges here: the parties briefed and argued the

issue both here and below; the factual record is fully developed on the issue; and our

analysis turns on the purely legal question of whether Mr. Rodriguez’s conduct—the

operative details of which are uncontested—would be punishable by more than one year

under federal law.

       Federal law leaves no room for doubt that the knowing use of a controlled

substance supports a charge for possession. See United States v. Rockwell, 984 F.2d 1112,

1114 (10th Cir. 1993) (“There can be no more intimate form of possession than use. We

hold that a controlled substance in a person’s body is in the possession of that person for

purposes of 18 U.S.C. § 3583(g), assuming the required mens rea. ‘Use’ in this context is

synonymous with possession.”), overruled on other grounds by Johnson v. United States,

529 U.S. 694, 698 n.2 (2000); see also United States v. Hammonds, 370 F.3d 1032, 1036

(10th Cir. 2004) (collecting cases) (“We continue to believe that, assuming the requisite



                                             7
culpable state of mind, the connection drawn in Rockwell between use and possession is

simply a matter of common sense.”).

       Given that the district court could have analyzed Mr. Rodriguez’s conduct as

possession under federal law, we turn to the question of whether his possession of

cocaine is punishable by more than one year’s imprisonment under federal law. This

turns on whether the district court could have considered recidivist enhancements under

federal law based on Mr. Rodriguez’s prior criminal history. Absent any recidivist

enhancements, Mr. Rodriguez’s conduct, as simple possession, would be punishable by a

maximum of one year’s imprisonment. See 21 U.S.C. § 844(a). On the other hand, if the

district court could have taken into account recidivist enhancements, it could have

considered Mr. Rodriguez’s three prior drug convictions and concluded that his simple

possession as a prior drug offender was punishable by more than one year. See id.

(authorizing up to three years’ imprisonment where an offender has “two or more prior

convictions for any drug, narcotic, or chemical offense chargeable under the law of any

State”).

       We have repeatedly held, though until now only in unpublished cases, that a

district court may consider a supervisee’s past drug convictions in determining the grade

of a violation based on simple possession. See United States v. Robles, 447 F. App’x 892,

895 (10th Cir. 2012) (unpublished) (noting that although “simple possession of cocaine is

[normally] a federal crime, punishable by a term of imprisonment of less than one year if

the defendant has no prior relevant drug convictions, it is punishable by imprisonment of

a year or more if the defendant has one or more prior relevant drug convictions”); United

                                            8
States v. Gonzalez-Perez, 343 F. App’x 300, 302 (10th Cir. 2009) (unpublished) (“The

Sentencing Commission certainly intended the use of the [defendant’s] prior

conviction . . . as the prior conviction was relevant to . . . his supervised release violation

under § 7B1.3(a)(1), (b).”). Other circuits have similarly held that district courts may

consider prior conduct in determining how a supervisee’s violation is punishable under

federal law, reasoning:

       [T]he very purpose of a supervised release revocation hearing is to
       determine the gravity of the breach of trust committed by the defendant in
       the context of the “conditional liberty” he was granted following his
       conviction of the underlying offenses. . . . [This]
       determination . . . necessarily requires consideration of the defendant’s
       criminal history unencumbered by a notice requirement applicable to an
       original criminal prosecution.

United States v. Wynn, 786 F.3d 339, 343 (4th Cir. 2015); see also United States v.

Montgomery, 893 F.3d 935, 940 (6th Cir. 2018); United States v. Seiber, 516 F. App’x

208, 215 (3d Cir. 2013) (unpublished); United States v. Denton, 611 F.3d 646, 651–52

(9th Cir. 2010); cf. Schrader v. Holder, 704 F.3d 980, 986 (D.C. Cir. 2013) (noting that

“the commonsense meaning of the term ‘punishable’” in a federal firearms ban “refers to

any punishment capable of being imposed, not necessarily a punishment specified by

statute”). Because we find this reasoning persuasive, we now hold that a district court

may consider recidivist enhancements based on prior criminal offenses when determining

the grade of a supervised release violation.

       Mr. Rodriguez argues this approach is incorrect because it bypasses statutory

procedures for imposing recidivist enhancements in criminal prosecutions. He points to

21 U.S.C. § 851, which provides:

                                               9
       No person who stands convicted of an offense under this part shall be
       sentenced to increased punishment by reason of one or more prior
       convictions, unless before trial, or before entry of a plea of guilty, the
       United States attorney files an information with the court . . . stating in
       writing the previous convictions to be relied upon. . . .

       If the United States attorney files an information under this section, the
       court shall after conviction but before pronouncement of sentence inquire
       of the [defendant] whether he affirms or denies that he has been previously
       convicted as alleged . . . .

21 U.S.C. § 851(a)(1), (b). The statute further provides that a defendant may challenge

the information and, if the defendant challenges it, requires the sentencing court to hold a

hearing to determine the truth of the allegations. Id. § 851(c). Mr. Rodriguez argues “the

district court was . . . not permitted to find that [he] committed a federal felony” without

following these “very unique procedures” for prosecuting simple possession as a felony

based on prior drug offenses. Reply Br. at 10. But the procedures outlined in 21 U.S.C.

§ 851 apply only to criminal prosecutions in the first instance. They have no bearing on

revocation proceedings where a court must determine the severity of a supervised release

violation by inquiring into the maximum punishment that conduct could have merited

were it independently charged and prosecuted. See United States v. Saavedra-Villasenor,

554 F. App’x 767, 771 (10th Cir. 2014) (unpublished) (“[T]he actual sentence imposed

on a defendant for committing the underlying offense is not the proper measure for

classifying that offense . . . . Rather, the relevant consideration is how the actual conduct

giving rise to the violation is punishable under applicable law.”); cf. United States v.

Hernandez-Garduno, 460 F.3d 1287, 1293 (10th Cir. 2006) (describing the inquiry under

a similarly-worded Guidelines provision as whether an offense is “punishable by more


                                              10
than one year of imprisonment, irrespective of the actual sentence imposed”). Under the

process for grading supervised release violations, a district court may consider recidivist

enhancements based on prior criminal offenses in determining the grade of a supervised

release violation.

       Mr. Rodriguez also argues that taking his prior offenses into account entails a

“hypothetical approach” that the Supreme Court condemned in Carachuri-Rosendo v.

Holder, 560 U.S. 563, 576 (2010). In Carachuri-Rosendo, a permanent United States

resident faced deportation after committing two state misdemeanor drug offenses in

Texas. Id. at 566. For the first offense (possession of marijuana), he received twenty days

in jail. Id. For the second (possession without prescription of an antianxiety medication),

he received ten days in jail. Id. Although, in prosecuting the second offense, Texas could

have sought a sentencing enhancement based on the defendant’s prior conviction, it did

not. Id. at 570–71. In his subsequent removal proceedings, the defendant sought

cancellation of removal, but the immigration judge denied his application, concluding the

defendant’s second possession conviction was a disqualifying “aggravated felony.” Id. at

571. The BIA and the Fifth Circuit both affirmed, with the Fifth Circuit reasoning that the

second conviction could have carried a recidivist enhancement and was therefore

punishable by a two-year sentence under federal law, making it an aggravated felony for

purposes of the Immigration and Nationality Act (INA). Id. at 572–73.

       The Supreme Court rejected this “hypothetical approach,” reasoning that it was at

odds with the text of the INA, “which limits the Attorney General’s cancellation power

only when, inter alia, a non-citizen ‘has . . . been convicted of a[n] aggravated felony.’”

                                             11
Id. at 576 (quoting 8 U.S.C. § 1229b(a)(3)). Because the core inquiry under the INA was

whether the applicant had been convicted of an aggravated felony, and that fact turned on

prior prosecutors’ “discretion when electing whether to pursue a recidivist enhancement,”

the Supreme Court held it was improper for the immigration judge to assume the

recidivist enhancement would actually have been applied under federal law—particularly

given the applicant served only ten days for his offense. Id.

       Here, by contrast, the question is not how to categorize Mr. Rodriguez’s prior

convictions, but how to grade his present supervised release violation. As the Guidelines

envision, the grade of the violation turns on the maximum punishment that could have

been imposed for Mr. Rodriguez’s conduct. Thus, it is entirely proper for a district court

to consider possible sentences because the inquiry in supervised release revocation

proceedings is inherently hypothetical.6

       Mr. Rodriguez’s conduct was punishable under federal law by more than one

year’s imprisonment. As a result, the district court correctly graded Mr. Rodriguez’s

supervised release violation as a Grade B violation.

                                  III.     CONCLUSION

       We AFFIRM the district court.




       6
       Two other circuits have considered this issue and found, as we do today, that
Carachuri-Rosendo is inapplicable in the context of supervised release revocation
proceedings. See United States v. Montgomery, 893 F.3d 935, 940–41 (6th Cir.
2018); United States v. Wynn, 786 F.3d 339, 342–43 (4th Cir. 2015).
                                             12
