USA v. Mills

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
UNITED STATES OF AMERICA,
Plaintiff,
vs. 	No. CR 14-2025 JB
JEAN CLAUD MILLS,
Defendant.
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on the Amended Petition for Revocation of
Supervised Release, filed December 9, 2025 (Doc. 93)(“Petition”). The Court holds an evidentiary
hearing on February 9, 2026. See Clerk’s Minutes at 1, filed February 9, 2026 (Doc. 104)(“Clerk’s
Minutes”); 	Draft 	Hearing 	Transcript 	of 	Proceedings 	at 	1 	(taken 	February 	9,
2026)(Court)(“2026 Tr.”).1 The primary issue is whether Defendant Jean Claud Mills commits,
as a matter of law, a Grade C violation, where a mandatory condition of his supervised release
states he must not commit another federal, state, or local crime and he pleads guilty to violating
the City of Rio Rancho’s Municipal Ordinance 12-6-18, which results in Mills only paying a fine
without serving any term of imprisonment. The Court concludes that Mills commits, as a matter
of law, a Grade C violation, where a mandatory condition of his supervised release states he must
not commit another federal, state, or local crime and he pleads guilty to violating Rio Rancho’s
Municipal Ordinance 12-6-18, which result in Mills only paying a fine, without serving any term
of imprisonment, because the maximum penalty Mills could face is not more than ninety days of
imprisonment even if Mills chooses to only pay a fine.
1 The Court’s citations to the transcript of the hearing refer to the court reporter’s original,
unedited version. Any final transcript may contain slightly different page and/or line numbers.
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FACTUAL BACKGROUND
Mills admits to the Petition’s facts. 	See 2026 Tr. 5:11-12 (Hoswell)(responding to the
Court’s question about whether Mills is making a legal argument: “Yes”); id. at 5:6-8
(Hoswell)(“Your Honor, I think the simplest way to it is he would deny that the conduct constitutes
a violation.”). Accordingly, the Court briefly discusses its findings of fact below before addressing
his legal arguments.
1. 	On August 7, 2025, Rio Rancho (New Mexico) Police issues Mills a citation for
“Prohibited Use of Electronic Device While Driving.” Petition at 1.
2. 	Using 	an 	electronic 	device 	while 	driving 	violates 	“Rio 	Rancho 	Municipal
Ordinance 12-6-18.” Petition at 1.
3. 	On September 2, 2025, Mills “plead guilty and paid a fine of $100 and court costs
of $93.” Petition at 1.
4. 	A mandatory condition of Mills’ supervised release is that he “must not commit
another federal, state, or local crime.” Petition at 1.
LAW REGARDING SUPERVISED RELEASE
A district court’s decision-making with regard to violations of supervised release
conditions comes in two phases. First, at sentencing, the court must decide whether to impose a
term of supervised release and, if so, how long a term to impose and what conditions to associate
with it. 	Second, while the defendant is on supervised release, if the United States accuses the
defendant of violating a condition of supervised release, the court must determine whether the
defendant has violated the conditions, whether to revoke supervised release, and, if the court
revokes supervised release, what disposition to impose for the violation.
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1. 	Imposition of Supervised Release.
A court, “in imposing a sentence to a term of imprisonment for a felony or a misdemeanor,
may [and sometimes must] include as a part of the sentence a requirement that the defendant be
placed on a term of supervised release after imprisonment.” 18 U.S.C. § 3583(a) (brackets added).
As part of a defendant’s supervised release, the law binds the defendant to abide by certain
conditions of his release. See 18 U.S.C. § 3583(d). Section 3583 of Title 18 of the United States
Code sets forth some of the standard and discretionary conditions that courts shall and may impose
as part of supervised release:
Conditions of supervised release. -- The court shall order, as an explicit condition
of supervised release, that the defendant not commit another Federal, State, or local
crime during the term of supervision and that the defendant not unlawfully possess
a controlled substance. The court shall order as an explicit condition of supervised
release for a defendant convicted for the first time of a domestic violence crime as
defined in section 3561(b) that the defendant attend a public, private, or private
nonprofit offender rehabilitation program that has been approved by the court, in
consultation with a State Coalition Against Domestic Violence or other appropriate
experts, if an approved program is readily available within a 50-mile radius of the
legal residence of the defendant. The court shall order, as an explicit condition of
supervised release for a person required to register under the Sex Offender
Registration and Notification Act, that the person comply with the requirements of
that Act. The court shall order, as an explicit condition of supervised release, that
the defendant cooperate in the collection of a DNA sample from the defendant, if
the collection of such a sample is authorized pursuant to section 3 of the DNA
Analysis Backlog Elimination Act of 2000. The court shall also order, as an explicit
condition of supervised release, that the defendant refrain from any unlawful use of
a controlled substance and submit to a drug test within 15 days of release on
supervised release and at least 2 periodic drug tests thereafter (as determined by the
court) for use of a controlled substance. 	The condition stated in the preceding
sentence may be ameliorated or suspended by the court as provided in section
3563(a)(4). 	The results of a drug test administered in accordance with the
preceding subsection shall be subject to confirmation only if the results are positive,
the defendant is subject to possible imprisonment for such failure, and either the
defendant denies the accuracy of such test or there is some other reason to question
the results of the test. A drug test confirmation shall be a urine drug test confirmed
using gas chromatography/mass spectrometry techniques or such test as the
Director of the Administrative Office of the United States Courts after consultation
with the Secretary of Health and Human Services may determine to be of equivalent
accuracy. The court shall consider whether the availability of appropriate substance
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abuse treatment programs, or an individual’s current or past participation in such
programs, warrants an exception in accordance with United States Sentencing
Commission guidelines from the rule of section 3583(g) when considering any
action against a defendant who fails a drug test. The court may order, as a further
condition of supervised release, to the extent that such condition --
(1) 	is reasonably related to the factors set forth in section
3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D);
(2) 	involves no greater deprivation of liberty than is reasonably
necessary for the purposes set forth in section 3553(a)(2)(B),
(a)(2)(C), and (a)(2)(D); and
(3) 	is consistent with any pertinent policy statements issued by
the Sentencing Commission pursuant to 28 U.S.C. 994(a);
any condition set forth as a discretionary condition of probation in section 3563(b)
and any other condition it considers to be appropriate, provided, however that a
condition set forth in subsection 3563(b)(10) shall be imposed only for a violation
of a condition of supervised release in accordance with section 3583(e)(2) and only
when facilities are available. 	If an alien defendant is subject to deportation, the
court may provide, as a condition of supervised release, that he be deported and
remain outside the United States, and may order that he be delivered to a duly
authorized immigration official for such deportation. The court may order, as an
explicit condition of supervised release for a person who is a felon and required to
register under the Sex Offender Registration and Notification Act, that the person
submit his person, and any property, house, residence, vehicle, papers, computer,
other electronic communications or data storage devices or media, and effects to
search at any time, with or without a warrant, by any law enforcement or probation
officer with reasonable suspicion concerning a violation of a condition of
supervised release or unlawful conduct by the person, and by any probation officer
in the lawful discharge of the officer’s supervision functions.
18 U.S.C. § 3583(d).
Thus, § 3583 specifies standard and discretionary conditions of supervised release, while,
elsewhere, Congress provides for other conduct which, if a defendant commits on supervised
release, can result in a revocation of supervised release. Among others, § 3583 provides that the
defendant must not commit another federal, State, or local crime during the term of supervision,
that the defendant not possess any controlled substances, and that the defendant cooperate in the
collection of a DNA sample. See 18 U.S.C. § 3583(d). Further, § 3583 permits a court to craft
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special conditions of supervised release that it deems appropriate. 	See 18 U.S.C. § 3583(d).
Among those conditions that § 3583 does not list is that the court may revoke supervised release
if the defendant fails to pay a fine or restitution that the court imposes. See 18 U.S.C. § 3613A
(“Upon a finding that the defendant is in default on a payment of a fine or restitution, the court
may, pursuant to section 3565, revoke probation or a term of supervised release . . . .”). 	In
“determining whether to include a term of supervised release, and if a term of supervised release
is to be included, in determining the length of the term and the conditions of supervised release,”
the court “shall consider the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D),
(a)(4), (a)(5), (a)(6), and (a)(7).” 18 U.S.C. § 3583(c).2
2. 	Revocation of Supervised Release.
Subsection (e)(3) of § 3583 sets forth the process for revoking supervised release:
(e) 	Modification of conditions or revocation. -- The court may, after
considering the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C),
(a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7) --
. . . .
(3) 	revoke 	a 	term 	of 	supervised 	release, 	and 	require 	the
defendant to serve in prison all or part of the term of
supervised release authorized by statute for the offense that
resulted in such term of supervised release without credit for
time previously served on postrelease supervision, if the
court, pursuant to the Federal Rules of Criminal Procedure
2 The Court discusses these eight specific § 3553(a) factors in the next two sections, which
focus on a district court’s re-imprisonment of a defendant following revocation of a term of
supervised release under § 3583(e). A district court must consider these same eight factors in both
contexts. Section 3583(c) omits § 3553(a)(2)(A), which requires a district court to consider “the
need for the sentence imposed . . . to reflect the seriousness of the offense, to promote respect for
the law, and to provide just punishment for the offense.” 	Judge Posner of the Seventh Circuit
observes regarding this omission: “From the omission of subsection 3553(a)(2)(A), the court in
United States v. Murray, 692 F.3d 273, 280 (3d Cir. 2012), inferred ‘that the primary purpose of
supervised release is to facilitate the reentry of offenders into their communities, rather than to
inflict punishment.’” 	United States v. Thompson, 2015 WL 151609, at * 2 (7th Cir. Jan. 13,
2015)(Posner, J.). The Court agrees with that general observation and goal.
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applicable to revocation of probation or supervised release,
finds by a preponderance of the evidence that the defendant
violated a condition of supervised release, except that a
defendant whose term is revoked under this paragraph may
not be required to serve on any such revocation more than 5
years in prison if the offense that resulted in the term of
supervised release is a class A felony, more than three years
in prison if such offense is a class B felony, more than 2
years in prison if such offense is a class C or D felony, or
more than one year in any other case . . . .
18 U.S.C. § 3583(e). Further, under § 3583(h), “[w]hen a term of supervised release is revoked
and the defendant is required to serve a term of imprisonment, the court may include a requirement
that the defendant be placed on a term of supervised release after imprisonment.” 	18 U.S.C.
§ 3583(h). See Johnson v. United States, 529 U.S. 694, 712-13 (2000)(holding that, even before
the addition of Subsection (h) to the statute in 1994, a plain reading of Subsection (e)(3) authorizes
district courts to order terms of supervised release following reimprisonment). 	The court must
find all violations of supervised release by a preponderance of the evidence, regardless of whether
the violative conduct itself constitutes criminal conduct. See 18 U.S.C. § 3583(e). This standard
is different from the ones that apply to a defendant’s violation of pretrial release conditions -- mere
probable cause for criminal violations and the heightened clear-and-convincing standard for
noncriminal violations. See 18 U.S.C. § 3148(b)(1).
A defendant violates a supervised release condition when the defendant violates the
supervised release condition’s express terms. For example, in United States v. Roy, 438 F.3d 140
(1st Cir. 2006), the defendant has two express supervised release conditions: (i) that he respond to
the probation officer truthfully; and (ii) that he participate in a mental health treatment program.
See 438 F.3d at 143. The United States Court of Appeals for the First Circuit concludes that the
defendant violates both express conditions, because he lies to his probation officer about having a
relationship with a woman, and because a treatment program terminates the defendant for having
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unapproved contact with children and being dishonest. See 438 F.3d at 143. At least one Court
of Appeals concludes that, when a defendant does not participate in activities which the supervised
release condition requires, the defendant violates supervised release conditions and faces
revocation. 	In United States v. Musso, 643 F.3d 566, 570 (7th Cir. 2011), the defendant’s sex
offender treatment contract requires the defendant, who has a conviction for possessing child
pornography, to “participate in group discussions, treatment activities, and written assignments,”
and states that “simply showing up for sessions is not enough to be considered cooperative with
treatment.” 643 F.3d at 570. The United States Court of Appeals for the Seventh Circuit affirms
the district judge’s conclusion that, because the defendant talks about superficial personal topics
instead of the core issues that bring him to treatment, frequently denies, minimizes, or uses a victim
stance to avoid accountability for his actions, and does not submit his homework assignments, the
defendant does not “participate meaningfully” in sex offender treatment. 	643 F.3d at 570.
Furthermore, the defendant violates additional contract terms, including possessing prohibited
sexual materials and engaging in prohibited contact with a minor. 	See 643 F.3d at 570-71.
According to the Seventh Circuit, the district court, therefore, correctly revokes the defendant’s
supervised release and imposes new special conditions of supervised release. See 643 F.3d at 570.
As long as the defendant follows the supervised release conditions’ express terms, the court does
not revoke supervised release, even if the defendant harbors negative feelings towards the
conditions or does not make progress. See United States v. Hronich, No. CR 11-1789 JB, 2025
WL 1330467, at *1 (D.N.M. May 7, 2025)(Browning, J.)(denying petition to revoke supervised
release, because the defendant attends and participates in sex offender treatment to the extent that
supervised release special condition’s language requires).
3. 	Sentencing Following the Revocation of Supervised Release.
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Consistent with § 3583(e)(2), the United States Court of Appeals for the Tenth Circuit
explains: “When a convicted defendant violates a condition of supervised release, the sentencing
judge may revoke the term of supervised release and impose prison time.” United States v. Patton,
506 F. App’x 729, 731 (10th Cir. 2012)(Brorby, J.)3 (quoting United States v. Vigil, 696 F.3d 997,
1002 (10th Cir. 2012)(O’Brien, J.)(citing 18 U.S.C. § 3584(e))).4 Considering the sentence, “[t]he
judge must consider [certain] factors in 18 U.S.C. § 3553(a) and the policy statements in Chapter
7 of the Sentencing Guidelines.” 	United States v. Patton, 506 F. App’x at 731 (brackets in
original). See 18 U.S.C. § 3583(e). 18 U.S.C. § 3583(e)’s relevant portion concerning revocation
of supervised release provides that “[t]he court may, after considering the factors set forth in
section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7) . . . , revoke a
3 United States v. Patton is an unpublished opinion, but the Court can rely on an
unpublished Tenth Circuit opinion to the extent its reasoned analysis is persuasive in the case
before it. See 10th Cir. R. 32.1(A) (“Unpublished decisions are not precedential, but may be cited
for their persuasive value.”). The Tenth Circuit states:
In this circuit, unpublished orders are not binding precedent . . . and we have
generally 	determined 	that 	citation 	to 	unpublished 	opinions 	is 	not 	favored.
However, if an unpublished opinion or order and judgment has persuasive value
with respect to a material issue in a case and would assist the court in its disposition,
we allow a citation to that decision.
United States v. Austin, 426 F.3d 1266, 1274 (10th Cir. 2005). The Court concludes that United
States v. Patton, United States v. Miller, 608 F. App’x 707 (10th Cir. 2015), United States v.
Chatburn, 505 F. App’x 713 (10th Cir. 2012), and United States v. Saavedra-Villasenor, 554
F. App’x 767 (10th Cir. 2014), have persuasive value with respect to a material issue, and will
assist the Court in its disposition of this Memorandum Opinion and Order.
4 As the Court describes in the preceding section, under § 3583(h), “[w]hen a term of
supervised release is revoked and the defendant is required to serve a term of imprisonment, the
court may include a requirement that the defendant be placed on a term of supervised release after
imprisonment.” 	18 U.S.C. § 3583(h). 	See Johnson v. United States, 529 U.S. 694, 712-13
(2000)(holding that, even before Congress adds Subsection (h) to the statute in 1994, a plain
reading of Subsection (e)(3) authorizes district courts to order terms of supervised release
following reimprisonment). When a defendant violates conditions of supervised release, therefore,
the Court can sentence the defendant to imprisonment and further supervised release.
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term of supervised release, and require the defendant to serve in prison all or part of the term of
supervised release.” 18 U.S.C. § 3583(e). The relevant § 3553(a) factors are as follows:
(1) 	the 	nature 	and 	circumstances 	of 	the 	offense 	and 	the 	history 	and
characteristics of the defendant;
(2) 	the need for the sentence imposed --
. . .
(B) 	to afford adequate deterrence to criminal conduct;
(C) 	to protect the public from further crimes of the defendant; and
(D) 	to provide the defendant with needed educational or vocational
training, medical care, or other correctional treatment in the most effective manner;
. . .
(4) 	the kinds of sentence and the sentencing range established for --
. . . .
(B) 	in the case of a violation of probation or supervised release, the
applicable guidelines or policy statements issued by the Sentencing Commission
pursuant to section 994(a)(3) of title 28, United States Code, taking into account
any amendments made to such guidelines or policy statements by act of Congress
(regardless of whether such amendments have yet to be incorporated by the
Sentencing Commission into amendments issued under section 994(p) of title 28);
(5) 	any pertinent policy statement --
(A) 	issued by the Sentencing Commission pursuant to section 994(a)(2)
of title 28, United States Code, subject to any amendments made to such policy
statement by act of Congress (regardless of whether such amendments have yet to
be incorporated by the Sentencing Commission into amendments issued under
section 994(p) of title 28); and
(B) 	that, except as provided in section 3742(g), is in effect on the date
the defendant is sentenced; or
. . .
(6) the need to avoid unwarranted sentence disparities among defendants with
similar records who have been found guilty of similar conduct; and
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(7) the need to provide restitution to any victims of the offense.
18 U.S.C. § 3553(a). 	See United States v. Patton, 506 F. App’x at 731 n.2 (explaining that 18
U.S.C. § 3583(e) lists the § 3553(a) factors that the Court must consider).5 The Tenth Circuit holds
5 “Section 3583(e) does not list Section 3553(a)(2)(A) among the factors district courts
should consider in modifying or revoking supervised release.” 	United States v. Penn, 601 F.3d
1007, 1012 (10th Cir. 2010)(Baldock, J.). The omitted section, § 3553(a)(2)(A), provides that, in
determining the sentence to be imposed, the district court “shall consider . . . the need for the
sentence imposed . . . to reflect the seriousness of the offense, to promote respect for the law, and
to provide just punishment for the offense.” 18 U.S.C. § 3553(a)(2)(A).
The Supreme Court has not addressed whether a district court’s consideration of a
§ 3553(a)(2)(A) factor during revocation sentencing is error. 	See United States v. Miller, 608
F. App’x 707, 709 (10th Cir. 2015)(Baldock, J.). The Courts of Appeals are split on the question.
See United States v. Chatburn, 505 F. App’x 713, 717 (10th Cir. 2012)(Matheson, Jr., J.). 	The
United States Courts of Appeals for the First, Second, Third, Sixth, and Seventh Circuits conclude
that it is not error to consider § 3553(a)(2)(A) factors during revocation sentencing. 	See e.g.,
United States v. Clay, 752 F.3d 1106, 1108-09 (7th Cir. 2014)(Flaum, J.); United States v. Vargas-
Davila, 649 F.3d 129, 131-32 (1st Cir. 2011)(Selya, J.); United States v. Young, 634 F.3d 233, 239
(3d Cir. 2011)(Vanaskie, J.); United States v. Lewis, 498 F.3d 393, 399-400 (6th Cir.
2007)(McKeague, J.); United States v. Williams, 443 F.3d 35, 47-48 (2d Cir. 2006)(Kearse, J.).
The United States Court of Appeals for the Fifth, Ninth, and Tenth Circuits, by contrast, conclude
that it is error to consider § 3553(a)(2)(A). See United States v. Miller, 634 F.3d 841, 844 (5th
Cir. 2011)(Garza, J.); United States v. Miqbel, 444 F.3d 1173, 1182 (9th Cir. 2006)(Reinhardt, J.);
United States v. Booker, 63 F.4th 1254, 1259-60 (10th Cir. 2023). The United States Courts of
Appeals for the Fourth Circuit initially joins the Fifth and Ninth Circuits, holding that, “[a]ccording
to § 3553(a)(2)(A), in devising a revocation sentence the district court is not authorized to consider
whether the revocation sentence ‘reflect[s] the seriousness of the offense, . . . . promote[s] respect
for the law, and . . . provide[s] just punishment for the offense.’” United States v. Crudup, 461
F.3d 433, 439 (4th Cir. 2006)(Shedd, J.). Seven years later, the Fourth Circuit limits United States
v. Crudup’s holding in United States v. Webb, 738 F.3d 638 (4th Cir. 2013)(Floyd, J.):
A district court’s meaningful consideration of the enumerated § 3553(a)
factors when imposing a revocation sentence typically will include analysis that
furthers 	the 	purposes 	of 	post-revocation 	incarceration. 	Given 	that 	the
§ 3553(a)(2)(A) factors are closely related to the factors district courts are
instructed to consider under § 3583(e), we fail to see how a district court’s reference
to 	the 	§ 3553(a)(2)(A) 	sentencing 	considerations, 	without 	more, 	would
automatically render a sentence unreasonable. 	Accordingly, although a district
court may not impose a revocation sentence based predominantly on the seriousness
of the releasee’s violation or the need for the sentence to promote respect for the
law and provide just punishment, we conclude that mere reference to such
considerations does not render a revocation sentence procedurally unreasonable
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when those factors are relevant to, and considered in conjunction with, the
enumerated § 3553(a) factors.
United States v. Webb, 738 F.3d at 641-42. The Ninth Circuit, likewise, later rules that its holding
in United States v. Miqbel, 444 F.3d at 1182, does not make reliance upon a § 3553(a)(2)(A) factor
improper per se, explaining:
[W]e did not set forth a blanket proposition that a court in no circumstances may
consider the seriousness of the criminal offense underlying the revocation. 	The
seriousness of the offense underlying the revocation, though not a focal point of the
inquiry, may be considered to a lesser degree as part of the criminal history of the
violator.
. . . .
To ignore the new violation underlying the revocation entirely would be to
ignore a key predictor of a violator’s potential for reintroduction into society
without relapse. 	See, e.g., United States v. Tadeo, 222 F.3d 623, 626 (9th Cir.
2000)(finding no abuse of discretion where the court found that the use of narcotics
in violation of supervised release created a risk that the defendant would commit
serious crimes because some of his past criminal activity occurred while under the
influence). 	The history of the violator, when combined with the violator’s most
recent criminal offenses, and particularly when similar to the past transgressions, is
indicative of the violator’s propensity for recidivism and inability to integrate
peacefully into a community. 	See id.; U.S.S.G.M. Ch.7, Pt. A(4) (2006)
(determining “that the purpose of . . . supervised release should focus on the
integration of the violator into the community, while providing the supervision
designed 	to 	limit 	further 	criminal 	conduct”); 	see 	also 	18 	U.S.C.
§§ 3553(a)(2)(B)(2003)(affording 	deterrence 	as 	one 	consideration) 	and
3553(a)(2)(C)(2003)(protecting the public from further crimes as another); 18
U.S.C. § 3583(e) (permitting the preceding factors for consideration in revocation
sentences). A history of, for example, drug-related offenses, combined with a drug-
related offense underlying revocation, as is the case here, creates a greater
likelihood that the violator will relapse into the same or similar criminal activity.
A violator who, after committing an offense and being placed on supervised release
for that offense, again commits a similar offense is not only more likely to continue
on that path, but also has demonstrated to the court that the violator has little respect
for its command. Because the district court’s trust in the violator’s ability to coexist
in society peacefully has been broken to a greater degree than if the violator had
committed a minor offense of a dissimilar nature, greater sanctions may be required
to deter future criminal activity. Consequently, if the nature and the severity of the
underlying offense were removed from the equation altogether, the court’s ability
to predict the violator’s potential for recidivism and to punish the violator for the
violator’s full breach of trust (and, ultimately, to deter the violator and to protect
the public) would be impaired significantly.
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that, at revocation sentencing, consideration of any other factors beyond § 3553(a), as well as any
§ 3553(a) factors that §3583(e) does not enumerate explicitly -- such as the need for retribution --
is improper. 	See United States v. Booker, 63 F.4th 1254, 1259-60 (10th Cir. 2023). 	In United
States v. Booker, the Tenth Circuit applies to revocation sentencings its prior holding from United
States v. Smart, 518 F.3d 800, 803-04 (10th Cir. 2008)(“Smart”), that any consideration of
sentencing factors that § 3553(a) does not enumerate is procedural error. United States v. Booker,
63 F.4th at 1259. The Tenth Circuit explains that its holding in Smart also applies to revocation
sentencings, “because § 3583(e) also requires courts to consider certain § 3553(a) factors when
sentencing after a supervised release violation.” United States v. Booker, 63 F.4th at 1259 (citing
United States v. McBride, 633 F.3d 1229, 1231 (10th Cir. 2011)). 	Then, the Tenth Circuit
United States v. Simtob, 485 F.3d 1058, 1062-63 (9th Cir. 2007)(Ezra, J.).
Before the Tenth Circuit’s decision in United States v. Booker, the Court thought that, like
the Fifth and Ninth Circuits, it is not error to consider the § 3553(a)(2)(A) factors during revocation
sentencing, and still thinks that it is not error and is probably the better rule. The Court must apply,
however, Tenth Circuit precedent. 	Now, where there is a revocation, given United States v.
Booker, the Court strives not to consider respect for the law, just punishment, and the seriousness
of the offense. The Court believes the solution and best practice is to keep always in mind what
Judge Posner and the Third Circuit emphasize -- “that the primary purpose of supervised release
is to facilitate the reentry of offenders into their communities, rather than to inflict punishment.”
United States v. Thompson, 2015 WL 151609, at *2 (quoting United States v. Murray, 692 F.3d
273, 280 (3d Cir. 2012)(Fuentes, J.)). 	The Court is mindful that all it does should help the
defendant ease back into society after a sometimes lengthy prison sentence, and the Court tries not
to punish the defendant, although sometimes incarceration is necessary, and Congress expressly
authorizes incarceration to get the defendant to do what the Court and the USPO tell him or her to
do.
The Court makes one other observation. 	When Congress and the Court say the word
“offense” at a violation hearing, the question is whether it is referring to the underlying offense or
to the violation. The Court can consider both, but again, in meeting supervised release’s goals, the
emphasis should be on the violation and not on the underlying offense. 	For example, when it
considers the “nature and circumstances of the offense,” it may consider how the defendant arrived
before the Court, but its focus and emphasis in coming up with a disposition should be on the new
violation’s nature and circumstances. 	If the Court considers the offense’s seriousness, the
underlying offense’s seriousness is largely irrelevant, unless the violation is the same thing as the
underlying offense. 	In any case, the Court should focus and emphasize, if the Court considers
seriousness at all, the new violation’s seriousness.
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explains: “Because we read § 3583(e) to set forth those sentencing factors that courts must
consider, the subsection ‘implicitly forbids consideration’ of any other § 3553(a) factors when
modifying or revoking a term of supervised release.” United States v. Booker, 63 F.4th at 1260
(quoting Smart, 518 F.3d at 803-04). 	The Tenth Circuit concludes that “the omission of
§ 3553(a)(2)(A) from the sentencing factors enumerated in § 3583(e) precludes a court from
considering the need for retribution when modifying or revoking a term of supervised release.”
United States v. Booker, 63 F.4th at 1260. 	The district court, in United States v. Booker, thus,
errs, because it “directly quoted” from § 3553(a)(2)(A) when explaining the reasons for Booker’s
sentence, and § 3553(a)(2)(A) is a factor the district court cannot consider when modifying or
revoking Booker’s term of supervised release. 63 F.4th at 1262.6
In particular, a district court must consider the policy statements in Chapter 7 of the
Guidelines before imposing a sentence for violations of supervised release’s conditions. 	See
United States v. Vigil, 696 F.3d at 1002; United States v. Kelley, 359 F.3d 1302, 1304-05 (10th
Cir. 2004)(Ebel, J.). The Guidelines’ commentary is an authoritative interpretation of the rules.
See Stinson v. United States, 508 U.S. 36, 38 (1993). “[T]he Chapter 7 provisions dealing with
violations of supervised release are not mandatory sentencing guidelines; rather, they merely
6 The Court notes that, in United States v. Booker, the Tenth Circuit concludes that the
district court’s error in considering § 3553(a)(2)(A) does not affect the defendant’s substantial
rights. See United States v. Booker, 63 F.4th at 1262. The Tenth Circuit explains:
We concluded that a single reference to punishment did not affect the defendant’s
substantial rights. [United States v. Penn, 601 F.3d 1007, 1012 (10th Cir. 2010)].
The court did not rely on the need for punishment in setting forth his initial reasons
for the new sentence based upon violation of the terms of supervised release, and
only raised it after defense counsel objected to his client receiving a high-end
sentence.
United States v. Booker, 63 F.4th at 1263.
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constitute advisory ‘policy’ statements.” 	United States v. Contreras-Martinez, 409 F.3d 1236,
1240 (10th Cir. 2005)(quoting United States v. Tsosie, 376 F.3d 1210, 1218 (10th Cir. 2004)). See
United States v. Lee, 957 F.2d 770, 773-74 (10th Cir. 1992)(stating that “the policy statements
regarding revocation of supervised release contained in Chapter 7 of the U.S.S.G. are advisory
rather than mandatory in nature,” and that “they must be considered by the trial court in its
deliberations concerning punishment for violation of conditions of supervised release”).
“All discussions of applicable sentences before a district court following the revocation of
supervised release ‘should be grounded in the common understanding that the district court may
impose any sentence within the statutory maximum.’” United States v. Burdex, 100 F.3d 882, 885
(10th Cir. 1996)(Henry, J.)(quoting United States v. Hofierka, 83 F.3d 357, 362 (11th Cir. 1996)).
While district courts must consider Chapter 7’s policy statements in imposing sentences after
revocation of supervised release, “‘[m]agic words, however, are not required to demonstrate
fulfillment of this requirement.’” 	United States v. Vigil, 696 F.3d 997, 1002 (10th Cir.
2012)(quoting United States v. Tedford, 405 F.3d 1159, 1161 (10th Cir. 2005)). 	“Rather, it is
enough if the district court considers § 3553(a) en masse and states its reasons for imposing a given
sentence.” United States v. Penn, 601 F.3d at 1011.
LAW REGARDING SUPERVISED RELEASE REVOCATION AND REVOCATION
HEARINGS
Subsection (e)(3) of § 3583 permits courts to revoke supervised release on the conclusion,
by a preponderance of the evidence, that the defendant violates a condition of probation. See 18
U.S.C. § 3583(e). Section 3583(e)(3) sets forth the process for revoking supervised release:
(e) 	Modification of conditions or revocation. -- The court may, after
considering the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C),
(a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7) --
. . . .
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(3) 	revoke 	a 	term 	of 	supervised 	release, 	and 	require 	the
defendant to serve in prison all or part of the term of
supervised release authorized by statute for the offense that
resulted in such term of supervised release without credit for
time previously served on postrelease supervision, if the
court, pursuant to the Federal Rules of Criminal Procedure
applicable to revocation of probation or supervised release,
finds by a preponderance of the evidence that the defendant
violated a condition of supervised release, except that a
defendant whose term is revoked under this paragraph may
not be required to serve on any such revocation more than 5
years in prison if the offense that resulted in the term of
supervised release is a class A felony, more than three years
in prison if such offense is a class B felony, more than 2
years in prison if such offense is a class C or D felony, or
more than one year in any other case . . . .
18 U.S.C. § 3583(e). “Preponderance of the evidence” is “evidence sufficient to persuade you that
a fact is more likely present than not present.” Criminal Pattern Jury Instruction Committee of the
United States Court of Appeals for the Tenth Circuit, Criminal Pattern Jury Instructions § 1.05.1,
at 10 (2025 ed.). Preponderance of the evidence is:
The greater weight of the evidence, not necessarily established by the
greater number of witnesses testifying to a fact but by evidence that has the most
convincing force; superior evidentiary weight that, though not sufficient to free the
mind wholly from all reasonable doubt, is still sufficient to incline a fair and
impartial mind to one side of the issue rather than the other.
“Preponderance of the Evidence,” Black’s Law Dictionary 18(c) (12th ed. 2024).
Where, as here, the parties contest revocation of supervised release, courts must hold a
revocation hearing. See Fed. R. Crim. P. 32.1(b)(2). Rule 32.1 of the Federal Rules of Criminal
Procedure governs revocation hearings. See Fed. R. Crim. P. 32.1. Rule 32.1 provides in relevant
part:
(2) 	Revocation Hearing. Unless waived by the person, the court must hold the
revocation 	hearing 	within 	a 	reasonable 	time 	in 	the 	district 	having
jurisdiction. The person is entitled to:
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(A) 	written notice of the alleged violation;
(B) 	disclosure of the evidence against the person;
(C) 	an opportunity to appear, present evidence, and question any
adverse witness unless the court determines that the interest of
justice does not require the witness to appear;
(D) 	notice of the person’s right to retain counsel or to request that
counsel be appointed if the person cannot obtain counsel; and
(E) 	an opportunity to make a statement and present any information in
mitigation . . . .
Fed. R. Crim. P. 32.1(b).
Although rule 32.1(b)(2) provides for a revocation hearing, the hearing is “not a formal
trial.” 	Comment to Rule 32.1(a)(2). 	Instead, revocation hearings are to be more flexible and
inclusive than criminal trials. See Morrissey v. Brewer, 408 U.S. 471, 489 (1972).7 The parties
may call witnesses and present evidence, but the process “should be flexible enough to consider
evidence including letters, affidavits, and other material that would not be admissible in an
adversary criminal trial.” Morrissey v. Brewer, 408 U.S. at 489. To that end, the Federal Rules
of Evidence do not apply in revocation hearings. 	See Fed. R. Evid. 1101(d)(3) (“These
rules -- except for those on privilege -- do not apply to . . . miscellaneous proceedings such
as . . . granting or revoking probation or supervised release . . . .”); United States v. Diaz, 986 F.3d
202, 209 (2d Cir. 2021).
7 Rule 32.1 was adopted in 1979. See Advisory Committee Notes on Fed. R. Crim. P. 32.1.
It replaces the former “revocation of parole” system with a new “revocation of supervised release”
system. 	Advisory Committee Notes on Fed. R. Crim. P. 32.1. 	The Supreme Court decides
Morrissey v. Brewer in 1972, before rule 32.1’s adoption. 	Accordingly, the Supreme Court’s
analysis concerns revocation of parole and not of revocation of supervised release. Nevertheless,
the Tenth Circuit interprets Morrissey v. Brewer to apply to revocation of supervised release. See
Jones, 818 F.3d at 1098-99 (discussing Morrissey v. Brewer as part of rule 32.1’s history and
development).
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Also in service of flexibility and inclusivity, defendants have a lesser right to confrontation
in revocation hearings. See Jones, 818 F.3d at 1098. “The Sixth Amendment [to the Constitution
of the United States of America] is a trial right” and does not apply to revocation hearings. United
States v. Hernandez, 778 F. Supp. 2d 1211, 1225 (D.N.M. 2011)(Browning, J.). Rule 32.1 of the
Federal Rules of Criminal Procedure gives, however, the defendant at the revocation hearing “an
opportunity to appear, present evidence, and question any adverse witness unless the court
determines that the interest of justice does not require the witness to appear.” 	Fed. R. Crim. P.
32.1(b)(2)(c). Instead of running through a standard confrontation analysis like the one that the
Supreme Court mandates in Crawford v. Washington, 541 U.S. 36 (2004)(“Crawford”), courts
presiding over revocation hearings engage in a balancing test, Jones, 818 F.3d at 1099-100. When
the United States relies on a non-testifying declarant’s out-of-court statement in a revocation
hearing, the court “must determine whether the ‘interest of justice does not require the witness to
appear’ by balancing (1) ‘the person’s interest in the constitutionally guaranteed right to
confrontation’ against (2) ‘the government’s good cause for denying it.’” Jones, 818 F.3d at 1099-
100 (quoting Advisory Committee Notes to the 2002 Amendment to Fed. R. Crim. P. 32.1). See
Rule 32.1 Advisory Committee’s Note to the 2012 Amendment (instructing courts to apply a
balancing test that weighs “the person’s interest in the constitutionally guaranteed right to
confrontation against the government’s good cause for denying it”); United States v. Hernandez,
428 F. Supp. 3d at 788 (“When applying the balancing test, the Court must weigh the defendant’s
interest in cross-examining and confronting [a] witness with the government’s good cause for not
presenting the witness.” (citing Jones, 818 F.3d at 1098)). The testimony’s “reliability is a very
important factor in determining the strength of a releasee’s confrontation right.’” Jones, 818 F.3d
at 1100 (quoting Curtis v. Chester, 626 F.3d 540, 546 (10th Cir. 2010)(emphasis omitted in Jones,
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but in Curtis v. Chester)). 	The Tenth Circuit uses this balancing test “when determining a
releasee’s confrontation rights at a revocation hearing.” Jones, 818 F.3d at 1099. See, e.g., United
States v. Hykes, 653 F. Supp. 3d 913, 917 (D.N.M. 2022)(Browning, J.)(making findings of fact
in a revocation of supervised release memorandum opinion and order based on evidence that
survives the balancing test that the Tenth Circuit adopts in Jones, 818 F.3d at 1098); United States
v. Calvert-Cata, No. CR 16-4566 JB, 2022 U.S. Dist. LEXIS 194756, at *30-31 (D.N.M. October
26, 2022)(Browning, J.)(determining, in the alternative that, even if it must apply the Jones, 818
F.3d at 1098, balancing test to the victim’s out-of-court statements, the statements are admissible,
because the United States has good cause not to call the witness to testify at the revocation hearing).
Although rule 32.1 and the Jones balancing test aim to decrease procedural protections for
defendants in revocation hearings and increase the universe of evidence courts can consider in
those hearings, in practice, rule 32.1 and Jones may limit evidence unnecessarily and unwisely. In
some instances, rule 32.1 compels courts presiding over revocation hearings to disregard out-of-
court statements even though those same out-of-court statements are admissible under the Federal
Rules of Evidence and Crawford if offered at trial, regardless whether the declarant is available to
testify at the trial.8 Those instances are troubling for two reasons. First, defendants in those cases
8 The Court confronts a similar issue in United States v. Hernandez, 428 F. Supp. 3d 775.
There, an officer responds to a domestic disturbance in Rio Rancho, New Mexico. 	See 428 F.
Supp. 3d at 782. When the officer arrives at the scene, the victim “appeared distressed,” and tells
the officer that the defendant assaulted her and attempted to set fire to a kitchen, among other
things. 428 F. Supp. 3d at 782. The defendant is on supervised release at the time, and the USPO’s
probation officer subsequently petitions to revoke his supervised release. See 428 F. Supp. 3d at
780. At the hearing, the United States does not call the victim, but relies on her statements to the
officer on the scene. See 428 F. Supp. 3d at 781. The Court applies the Jones balancing test and
determines that it cannot consider the victim’s out-of-court statements to the officer. See 428 F.
Supp. 3d at 788. Those out-of-court statements, however, are admissible hearsay in a trial setting
as either a present sense impression or excited utterance. See Fed. R. Evid. 803(1), (2). Given the
Court’s recent decisions in United States v. Chavez, No. CR 15-3557 JB, 2023 WL 5672594
(D.N.M. Sept. 1, 2023)(Browning, J.), and United States v. Green, No. CR 06-2605 JB, 2022 WL
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receive a greater right to confrontation in the revocation context than they do in the trial context.
It is difficult -- if not impossible -- to square that outcome with the Tenth Circuit’s guidance that
defendants are supposed to have a more limited right to confrontation in the revocation setting than
they do in the trial setting. See Jones, 818 F.3d at 1098. Second, courts in revocations must rely
on smaller universes of evidence than they do in the trial setting. 	Again, it is difficult -- if not
impossible -- to reconcile that result with the Supreme Court’s guidance in Morrissey v. Brewer
that courts presiding over revocation hearings should be able to consider “material that would not
be admissible in an adversary criminal trial.” 408 U.S. at 489.
The Honorable Andrew S. Oldham, United States Circuit Judge for the United States Court
of Appeals for the Fifth Circuit, documents this paradox in his concurring opinion in United States
v. Alvear, 959 F.3d 185, 191 (5th Cir. 2020)(Oldham, J., concurring). In his concurrence, Judge
Oldham discusses “three oddities” in rule 32.1 caselaw. United States v. Alvear, 959 F.3d at 193
(Oldham, J., concurring).9 First, he notes that “it’s unclear what if anything the Due Process Clause
adds to the protections of Rule 32.1(b)(2)(C).” 	United States v. Alvear, 959 F.3d at 193
(Oldham, J., concurring). Second, he observes that, “instead of applying Rule 32.1(b)(2)(C), many
of our decisions in this area contain nary a citation to it.” United States v. Alvear, 959 F.3d at 193
1184650 (D.N.M. April 21, 2022)(Browning, J.), aff’d, No. 22-2062, 2023 WL 4195884 (10th Cir.
June 27, 2023), the Court would admit these out-of-court statements today.
9 The Fifth Circuit does not use the Jones test. It uses, however, a balancing test analogous
to Jones test, as does every other Court of Appeals that has handled a rule 32.1 issue. See United
States v. Taveras, 380 F.3d 532, 536 (1st Cir. 2004); United States v. Chin, 224 F.3d 121, 124 (2d
Cir. 2000); United States v. Lloyd, 566 F.3d 341, 344 (3d Cir. 2009); United States v. Doswell,
670 F.3d 526, 530 (4th Cir. 2012); Barnes v. Johnson, 184 F.3d 451, 454 (5th Cir. 1999); United
States v. Jackson, 422 F. App’x 408, 410-11 (6th Cir. 2011)(unpublished); United States v. Jordan,
742 F.3d 276, 279 (7th Cir. 2014); United States v. Bell, 785 F.2d 640, 642 (8th Cir. 1986); United
States v. Comito, 177 F.3d 1166, 1170 (9th Cir. 1999); United States v. Frazier, 26 F.3d 110, 114
(11th Cir. 1994); United States v. Stanfield, 360 F.3d 1346, 1360 (D.C. Cir. 2004).
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(Oldham, J., concurring). Finally, he describes, “oddest of all, sometimes confrontation rights in
a revocation hearing can be broader than the confrontation right at trial.” United States v. Alvear,
959 F.3d at 193 (Oldham, J., concurring)(emphasis in original).
The Supreme Court has told us that protections in a revocation hearing are
(at most) the same as those at trial. See United States v. Haymond, -- U.S. --, 139
S.Ct. 2369, 2378-79 . . . (2019)(plurality opinion); id. at 2385-86 (Breyer, J.,
concurring in the judgment). 	That result creates its own difficulties. 	See id. at
2390-91 (Alito, J., dissenting). But it’s an altogether different problem to make the
constitutional protections in the revocation hearing broader than at trial. After all,
one premise of our system is that post-conviction rights are generally narrower
because “[o]nce a defendant has been afforded a fair trial and convicted of the
offense for which he was charged, the presumption of innocence disappears.”
Herrera v. Collins, 506 U.S. 390, 399 . . . (1993). 	But when we ask different
questions under the Confrontation Clause at trial (is the statement “testimonial”?)
and under the Due Process Clause at revocation (is there “good cause” to admit the
statement?), we can get incongruous answers.
Consider an example. A boyfriend violently attacks his girlfriend who then
immediately calls 911. 	The Government wants to use her statements to the 911
operator against the boyfriend. At trial, the defendant has no right to prevent the
introduction of these statements under the Confrontation Clause because they’re
not “testimonial.” 	[Ohio v. ]Clark, [576 U.S. 237 (2015)] (citing Davis v.
Washington, 547 U.S. 813, 820 . . . (2006)). 	But this same 911 call is almost
certainly hearsay. 	So at the boyfriend’s revocation hearing, he can object to the
introduction of the statements under the Due Process Clause, unless there is “good
cause” to admit them. 	See, e.g., [United States v. ]Jimison, 825 F.3d [260,] 263
[(2016)].
The oddities don’t end there. The Federal Rules of Evidence apply at trial.
And they provide for the admission of all sorts of hearsay: an excited utterance, a
statement made for medical treatment, a present sense impression, a business
record, a statement against interest. See Fed. R. Evid. 803, 804. But the hearsay
rules in the Federal Rules of Evidence do not apply in revocation hearings. Fed. R.
Evid. 1101(d)(3) . . . . So if the Government wants to use these same (otherwise-
admissible) hearsay statements at a revocation hearing, the court has to apply the
“good cause” analysis demanded by the Due Process Clause. That’s an additional
hurdle that applies post-conviction that does not apply pre-conviction. How odd.
United States v. Alvear, 959 F.3d at 194 (Oldham, J., concurring).
Although 18 U.S.C. § 3583(e) establishes the maximum terms of imprisonment upon the
revocation of a defendant’s supervised release, the U.S.S.G establishes revocation imprisonment
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ranges based on the defendant’s criminal history category and the violation grade. 	U.S.S.G.
§ 7B1.4(a). The Guidelines establish three violation categories:
(1) 	GRADE A VIOLATIONS -- conduct constituting (A) a federal, state, or
local offense punishable by a term of imprisonment exceeding one year that
(i) is 	a 	crime 	of 	violence, 	(ii) is a 	controlled 	substance 	offense, 	or
(iii) involves possession of a firearm or destructive device of a type
described in 26 U.S.C. § 5845(a); or (B) any other federal, state, or local
offense punishable by a term of imprisonment exceeding twenty years;
(2) 	GRADE B VIOLATIONS -- conduct constituting any other federal, state,
or local offense punishable by a term of imprisonment exceeding one year;
(3) 	GRADE C VIOLATIONS -- 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.
U.S.S.G. § 7B1.2(a) (capitalization in original). 	In determining the applicable revocation
imprisonment range, the Guidelines instruct that courts apply the criminal history category
applicable at the time of the defendant’s underlying sentencing. See U.S.S.G. § 7B1.4 cmt. n.1.
ANALYSIS
The primary issue before the Court is whether Mills commits, as a matter of law, a Grade
C violation of supervised release, where a mandatory condition prohibits the commission of any
federal, state, or local crime, and Mills pleads guilty to violating the City of Rio Rancho’s
Municipal Ordinance 12-6-18, resulting only in the imposition of a fine. See 2026 Tr. at 6:13-7:19
(Hoswell). See City Code of Rio Rancho, N.M., Municipal Code § 12-6-18. Mills does not dispute
the Petition’s factual allegations, see 2026 Tr. at 5:11-12, but instead raises a legal challenge,
arguing that the violation does not qualify as a Grade C violation, because the violation does not
expose him to imprisonment. See 2026 Tr. at 7:6-9 (Hoswell)(“But at this point and what he was
cited for its not. He couldn’t have faced, from my understanding he couldn’t have faced any term
of incarceration . . . .”). The Court concludes that Mills commits a Grade C violation as a matter
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of law, because the Guidelines require courts to consider “how the actual conduct giving rise to
the violation is punishable under applicable law,” United States v. Saavedra-Villasenor, 554
F. App’x 767, 771 (10th Cir. 2014)(unpublished)(“Saavedra-Villasenor”)(italics in the original).
Here, the dispute turns on the interpretation of “punishable” under U.S.S.G. § 7B1.1, and not on
the penalty actually imposed. Saavedra-Villasenor, 554 F. App’x at 771.
I. 	THE GUIDELINES’ FOCUS ON POTENTIAL PUNISHMENT, COUNSELS THAT
MILLS’ COMMITS A GRADE C VIOLATION.
The Guidelines define a Grade C violation as conduct constituting “a federal, state, or local
offense punishable by a term of imprisonment of one year or less,” or a violation of any other
condition of supervision. 	U.S.S.G. § 7C1.1(a)(3). Mills concedes that § 12-6-18 constitutes a
“local offense,” but argues that it falls outside this definition because the only penalty he faces is
a fine. 2026 Tr. at 7:3-6 (“So if he had been cited under one of the codes that uses the maximum
penalty of up to 90 days, I think certainly that would fall under a Grade C violation.”). The relevant
inquiry is not the penalty imposed in a particular case, see Saavedra-Villasenor, 554 F. App’x at
771 (“[T]he actual sentence imposed . . . is not the proper measure for classifying that offense as
either a Grade B or Grade C violation.”), but whether the government can punish the offense with
a term of imprisonment.
The Tenth Circuit adopts this definition of “punishable” in United States v. Hernandez–
Garduno, 460 F.3d 1287 (10th Cir. 2006) and later applies the definition to supervised release
violation categories in Saavedra-Villasenor. See Saavedra-Villasenor, 554 F. App’x at 771 (“We
have previously held that the word ‘punishable’ encompasses the full scope of punishment possible
for an offense, ‘irrespective of the actual sentence imposed.’” (quoting United States v.
Hernandez–Garduno, 460 F.3d at 1293)). 	In Saavedra-Villasenor, the Tenth Circuit rejects the
argument that the grade of a violation depends on the sentence the court imposes, explaining that
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the analysis turns on the “full scope of punishment possible for an offense.” 554 F. App’x at 771.
The Tenth Circuit joins the United States Court of Appeals for the District of Columbia, see
Schrader v. Holder, 704 F.3d 980, 986 (D.C. Cir. 2013)(emphasizing “the commonsense meaning
of the term ‘punishable,’ which refers to any punishment capable of being imposed”), and for the
United States Court of Appeals for the Ninth Circuit, United States v. Denton, 611 F.3d 646, 651
(9th Cir. 2010)(“Whether a defendant has committed a Grade A or Grade C violation of his
supervised 	release 	depends 	on 	the 	potential 	punishment 	for 	the 	underlying 	offense.”).
Accordingly, the Court must determine whether the government may punish a § 12-6-18 violation
with a term of imprisonment, regardless of whether the State imposes imprisonment.
II. 	THE RIO RANCHO MUNICIPAL CODE AUTHORIZES UP TO NINETY DAYS
OF IMPRISONMENT, MAKING THIS A GRADE C VIOLATION.
Rio Rancho Municipal Code Article VI governs traffic regulations, including the provision
that Mills violates, which prohibits the use of electronic devices while driving. See Petition at 1-
2; City Code § 12-6-18. 	The ordinance does not specify, however, a penalty for violating the
ordinance. 	See City Code § 12-6-18. 	The Court therefore turns to Article XII, which governs
penalties for violations of Article VI. 	See City Code § 12-12 (“Penalties and Procedures on
Arrest”). Section 12-12-1.1 provides:
Unless another penalty is expressly provided in this ordinance or as
otherwise provided by state law, every person convicted of a violation of any
provision of this ordinance shall be punished by a fine of not more than $500 or by
imprisonment for not more than 90 days or by both such fine and imprisonment.
City Code § 12-12-1.1. Mills offers no authority demonstrating that § 12-6-18 is exempt from this
general penalty provision. 	Instead, Mills directs the Court to § 12-12-1.2, which establishes a
Penalty Assessment Program, arguing Appendix A’s fine is the maximum penalty that he faces for
the violation. 	See 2026 Tr. at 22:10-12 (Hoswell)(“Here, the maximum penalties expressly
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provided [] [is] a hundred dollar[s] . . . .”). 	Appendix A assigns a $100.00 penalty to violations of
§ 12-6-18. See City Code § 12-12-1.2 (Appendix A: 12-6-18). From this assignment , Mills argues
that imprisonment is not an available punishment in the absence of a notation in the Appendix.
This argument conflates an “elect[ive]” administrative resolution with the maximum
penalty that the law authorizes. 	City Code § 12-12-1.2(C). 	The Penalty Assessment Program
provides a mechanism by which a defendant may resolve certain violations by paying a fine,
thereby avoiding further proceedings. See City Code § 12-12-1.2. Section 12-12-1.2(G) states:
Whenever a person is arrested for violation of a penalty assessment
misdemeanor and elects to pay the penalty assessment, the arresting officer, using
the uniform traffic citation, shall complete the information section and prepare the
penalty assessment notice indicating the amount of the penalty assessment, have
the arrested person sign the agreement to pay the amount prescribed, give a copy
of the citation to the arrested person and release him from custody. No officer shall
accept custody or payment of any penalty assessment. If the arrested person
declines to accept a penalty assessment notice, the officer shall issue a notice to
appear.
City Code § 12-12-1.2(G). The Penalty Assessment Program does not alter the statutory maximum
penalty. 	The situation is similar to a rule 11(c)(1)(C) plea agreement in the Federal Rules of
Criminal Procedure. See Fed. R. Crim. P. 11(c)(1)(C). Through the plea agreement, the defendant
elects to lower the maximum penalty in exchange for something else, such as avoiding trial, but
the parties’ agreement does not alter the imprisonment that is otherwise available.
Indeed, § 12-12-1.2(C) confirms that imprisonment remains available if the Defendant
elects to proceed to court:
When an alleged violator of a penalty assessment misdemeanor elects to
accept a notice to appear in lieu of a notice of penalty assessment, no fine imposed
upon later conviction shall exceed the penalty assessment established for the
particular penalty assessment misdemeanor and no probation imposed upon a
suspended or deferred sentence shall exceed ninety days.
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City Code § 12-12-1.2(C). 	This provision demonstrates that, if Miles declines the penalty
assessment and proceeds to adjudication, he may face penalties that include imprisonment, subject
to a ninety-day limitation. Accordingly, although Mills elects to pay a fine, the offense remains
punishable by imprisonment and therefore falls within the definition of a Grade C violation.
III. 	THE ABSENCE OF A CRIMINAL CONVICTION DOES NOT PRECLUDE A
GRADE C VIOLATION.
Mills further argues that his violation does not qualify as a Grade C violation, because it is
not “criminal,” relying on New Mexico’s statute § 31-19A-1. 	See 2026 Tr. at 7:11-15
(Hoswell)(stating that “there is case law . . . [which indicates that] NMSA 31-19A-1 [] says that a
payment of a fine,” pursuant to the Penalty Assessment Program, “should not be considered a
criminal conviction”). See State v. Parrish, No. A-1-CA-39449, 2022 WL 1211107 at *2 (N.M.
Ct. App. Apr. 25, 2022)(“Our Legislature was clear that a penalty assessment is not a crime in New
Mexico.” (citing N.M. Stat. Ann. § 31-19A-1)). Section 31-19A-1 provides that payment of a fine
pursuant to a penalty assessment “shall not be considered a criminal conviction.” N.M. Stat. Ann.
§ 31-19A-1. 	This argument is unpersuasive for two reasons. 	First, the statute distinguishes
between a “criminal conviction” and the underlying conduct. 	See N.M. Stat. Ann. § 31-19A-1.
The statute does not render the conduct non-criminal; it limits the legal consequences of resolving
the violation through a penalty assessment. Second, the Guidelines indicate that a court may find
a supervised release violation “whether or not the defendant has been the subject of a separate
federal, state, or local prosecution.” U.S.S.G. § 7B1.1 cmt. 1. The Tenth Circuit likewise explains
that the grade of a violation “‘does not depend upon the conduct that is the subject of criminal
charges or of which the defendant is convicted.’” 	Saavedra-Villasenor, 554 F. App’x at 772
(quoting U.S.S.G. § 7B1.1 cmt. 1). Thus, even if Mills’ payment of the fine does not constitute a
criminal conviction, his conduct -- violating a municipal ordinance that the government can punish
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by imprisonment -- remains sufficient to constitute a Grade C violation. 	The Guidelines direct
courts to assess the “punishability” of the conduct, and not the case’s procedural disposition.
Because, under § 12-6-18, the government can punish Mills by up to ninety days
imprisonment, Mills’ violation qualifies as a Grade C violation under U.S.S.G. § 7B1.1. That Mills
elects to resolve the violation by paying a fine does not alter this conclusion. Accordingly, the
Court concludes that Mills violates a mandatory condition of supervised release by committing a
local crime and therefore has committed a Grade C violation.
IT IS ORDERED that the: (i) Defendant Jean Claud Mills has violated his mandatory
condition of supervised release that he “must not commit another federal, state, or local crime”;
(ii) Mills commits a Grade C violation pursuant to the United States Sentencing Guidelines §
7B1.1; (iii) Mills’ criminal history category is VI; and (iv) Mills’ Grade C violation and criminal
history category of VI, under the United States Sentencing Guidelines § 7B1.1, establishes a
revocation imprisonment range of 8 to 14 months.
________________________________
UNITED STATES DISTRICT JUDGE
Counsel:
Todd Blanche
Acting United States Attorney General
Ryan Ellison
First Assistant United States Attorney
Mia Rubin
Assistant United States Attorney
United States Attorney’s Office
Albuquerque, New Mexico
Attorneys for the Plaintiff
Jacqueline Hoswell
The Law Office of Ryan J. Villa, LLC
Albuquerque, New Mexico
Attorneys for the Defendant
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