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 ...
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