United States v. Rodriguez, 2019 WL 7207303 (10th Cir. December 23, 2019) (CO): At his supervised revocation hearing, Rodriguez admitted to possession and use of a controlled substance. He argued his misconduct constituted a Grade C violation, not a Grade B, because according to Colorado law he could not be given a term of imprisonment exceeding one year. The panel disagreed: Rodriguez’s misconduct qualified as a Grade B violation since federal law allowed an imprisonment term greater than one year. Although simple possession is punishable by a maximum imprisonment term of one year, the district court could have taken into account 21 U.S.C. § 844's recidivist enhancements. Using those enhancements a federal court could have imposed a term greater than one year, because Rodriguez had 3 prior drug convictions. The panel stressed that "a district court may consider recidivist enhancements based on prior criminal offenses when determining the grade of a supervised release violation."

Please note: You may think that this decision conflicts with the Supreme Court’s decision in Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010). The panel says that you would be wrong. There the Court rejected a "hypothetical approach" because the statute at issue required the court to review the offense of which the accused was convicted. By contrast, in a revocation sentencing context, the question is not how to categorize an accused’s prior convictions, but how to grade his present misconduct. The panel says the grade of violation turns on the maximum punishment that could have been imposed for the misconduct. "Thus, it is entirely proper for a district court to consider possible sentences because the inquiry in supervised release revocation proceedings is inherently hypothetical."