United States v. Rodriguez

• Decision Date: 23 December 2019
• Docket Number: No. 18-1449,18-1449
• Citation: 945 F.3d 1245
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Daniel Adolph RODRIGUEZ, Defendant - Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

945 F.3d 1245

UNITED STATES of America, Plaintiff - Appellee,

v.Daniel Adolph RODRIGUEZ, Defendant - Appellant.

No. 18-1449

United States Court of Appeals, Tenth Circuit.

FILED December 23, 2019

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 "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 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 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 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, 124 S.Ct. 2531, 159 L.Ed.2d 403 (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 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, 120 S.Ct. 1795, 146 L.Ed.2d 727 (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 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...