UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

__________________ _______________ UNITED STATES OF AMERICA, Pl aintiff - Appellee,

v. GERALD LAMONT OLDEN, De fendant - Appellant. No. 17-5008 (D.C. No. 4:04- CR-00071-TCK-1) (N.D. Okla.)

__________________ _______________ ORDER AND JUDGMENT *

__________________ _______________ Before LUCERO , HOLMES , and BACHARACH , Circuit Judges.

__________________ _______________ This appeal involves a disagreem ent over whethe r the defendant admitted that he had co mmitted a crime. The government a lleges that the defendant admitted a crim e; the defendant denies doing so, clai ming that he admitted only certain allegations that did not cons titute crimes. The district court agreed wi th the government, and we affirm under the plainerror standard.

* We conclude that oral argument would not material ly help us to decide this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). Thus, we are decidi ng the appeal based on the briefs. This order and judgment does not constitute bind ing precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But our order and judgment may be ci ted for its persuasive value under Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A). FILED United States Court of Appeals Tenth Circuit 

### July 27, 2017 Elisabeth A. Shumaker Clerk of Court2 The district court found the comm ission of a crim e based on the defendant’s admission. The district court revoked supervised release based on the defendant’s violation of his conditions. The cour t then imposed a new sentence based on a guideline range of 21 to 27 months. This guideline range would have applied only if the defendant had violated the condition prohibiting the commission of another crime; here, the government claimed that the defendant had committed a crime consisting of a false statement to a federa l officer. 18 U.S.C. § 1001(a). 1 The defendant acknowledges that he admitted violating some of the conditions, but insists that he did not admit the co mmission of a cr ime involving a false statement. And in the absence of su ch an admission, the defendant contends that the district court co mmitted plain error by finding that he had violated the conditi on prohibiting the commi ssion of a crime. Any alleged error would not have be en obvious. The defendant acknowledges that he failed to object in district c ourt and that this failure triggers the plain-error standard. Under this standard, relief would be available only if the district cour t had committed an obvious error. United States v. Pablo , 696 F.3d 1280, 1290 (10th Ci r. 2012). Applying this

1 The district court f ound nine othe r violations. But those violations would not have triggered a guide line range of 21 to 27 months.3 standard, we conclude that if the dist rict court had erred, the error would not have been obvious. 2 To determine whether the defendan t’s statements constituted an admission, we consid er the totality of circumstances. United States v. Fay , 547 F.3d 1231, 1235 (10th Ci r. 2008). The to tality of circumstances could reasonably have indicated an admissi on that the defend ant had violated § 1001(a). In seeking revocation of supervised release, the government alleged false statements to the probation office regarding th e defendant’s address, vehicles, and telephone numb er. At the hearing, th e district court asked defense counsel whether the allegations were admitted or in dispute. Defense counsel responded: “They’re not in dispute, sir. We had intended to waive the right to have the h earing today and stipulate to the allegations.” R., vol. II at 34. With this statement, th e court asked the defendant if he understood what his attorney had just said. The defendant answered that he did. Id. To this point, the admissi on appeared airtight. But the defend ant relies on what happened next. The court recounted the allegations and asked the de fendant if they were true. Id. at 35. He answered: “Some of it is, Your Honor.” Id. He explained that the issue with his telephone was a mi sunderstanding, but admitt ed that he had driven

2 We need not decide whet her an error took place.4 his cousin’s vehicle and had not told his probation officer that he was in the process of movi ng, which he acknowle dged “was wrong.” Id

. The defendant points to his comment at the re vocation hearing that only “[s]ome of” the a llegations were true. See id . But the defe ndant then admitted that he had driven his cousin’s vehicle and had not told his probation officer that he was moving, which were two of the things he was accused of lying about. Although the defend ant minimized th e severity of his false statements, he did not deny making them with the knowledg e that they were false. In light of this exchange, the dist rict court did not commit an obvious error in concluding that these false statements had co nstituted a crime under § 1001. Thus, the district court did not commit plain error by finding the violation of a supervised-release condition involving the commission of a crime. Affirmed.

Entered for the Court

Robert E. Bacharach Circuit Judge