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United States v. Rodriguez

United States Court of Appeals, Tenth Circuit

December 23, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
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 "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 ...


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