UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

BRYCE D. DRAPER, 

 Defendant - Appellant. 

No. 18-3187 

(D.C. No. 2:15-CR-20035-CM-1) 

(D. Kansas) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before HARTZ, McHUGH, and CARSON, Circuit Judges. 

_________________________________ 

Bryce D. Draper appeals from the district court’s revocation of his supervised 

release, arguing that he was improperly sentenced under the United States Sentencing 

Commission Guidelines. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we 

affirm. 

 * After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist in the determination of 

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

April 10, 2019

Elisabeth A. Shumaker 

Clerk of Court
2 

I. BACKGROUND 

In 2007, Mr. Draper was convicted of one count of unlawfully possessing a 

firearm after being convicted of a felony, a violation of 18 U.S.C. § 922(g)(1). He 

was sentenced to 30 months’ imprisonment followed by a three-year term of 

supervised release. One condition of his supervised release provided, “You must not 

commit another federal, state, or local crime,” and other conditions required drug 

testing and forbade him from unlawfully possessing or using a controlled substance. 

ROA at 121–22. 

Mr. Draper was released from prison on May 23, 2017, and began his term of 

supervised release. On August 1, 2017, Mr. Draper was arrested and charged with 

driving under the influence of alcohol. On September 15, 2017, Mr. Draper tested 

positive for cocaine. He failed to submit to a scheduled drug test on October 2 and 

absconded from supervised release for approximately five months. On March 12, 

2018, when the U.S. Marshals Fugitive Task Force arrested Mr. Draper, he 

volunteered that he would probably test positive for methamphetamine. After 

submitting to an onsite drug test, Mr. Draper tested positive for methamphetamine, 

cocaine, and marijuana. Mr. Draper’s probation officer recommended that 

Mr. Draper’s supervised release be revoked because he had violated several of the 

conditions of supervised release by using cocaine and methamphetamine. The 

probation officer issued a report classifying both violations as Grade B violations, 

noting that Mr. Draper’s possession of these substances would have been “a felony 
3 

punishable by a term of imprisonment exceeding one year under Kansas state law.” 

Id. at 19, 22. 

After a hearing on August 20, 2018, the district court found that Mr. Draper 

had committed multiple supervised-release violations, based on Mr. Draper’s 

stipulation admitting cocaine use and his earlier admission of methamphetamine use 

to his probation officer. The Government argued that each violation was a Grade B 

violation under U.S.S.G. § 7B1.1(a)(2), because possession of cocaine and 

methamphetamine constituted “felon[ies] punishable by a term of imprisonment 

exceeding one year under Kansas state law.”1 Id. at 21. Mr. Draper countered that 

they were Grade C violations because under federal law, a first-time conviction for 

possession of a controlled substance is a misdemeanor punishable by a term of 

imprisonment of not more than one year. See 21 U.S.C. § 802(6); 21 U.S.C. § 844(a). 

The district court rejected Mr. Draper’s argument, classifying both violations 

as Grade B violations. Based on that classification, the court calculated the 

Guidelines sentencing range as 21 to 24 months and sentenced Mr. Draper to 18 

months’ imprisonment, followed by one year of supervised release. Mr. Draper 

timely appealed. 

 1

 The Sentencing Guidelines create three grades of supervised-release 

violations. U.S.S.G. § 7B1.1(a). A Grade B violation encompasses “conduct 

constituting any . . . federal, state or local offense punishable by a term of 

imprisonment exceeding one year,” while a Grade C violation includes “conduct 

constituting . . . a federal, state, or local offense punishable by a term of 

imprisonment of one year or less.” Id.
4 

II. DISCUSSION

On appeal, Mr. Draper appeals his sentence on two grounds: first, he 

challenges the procedural reasonableness of his sentence, arguing the district court 

erred by applying Kansas state law, rather than federal law, to determine whether Mr. 

Draper’s cocaine and methamphetamine violations were Grade B or Grade C 

violations under the Guidelines. Second, Mr. Draper argues the district court violated 

the Supremacy Clause of the United States Constitution and the doctrine of federal 

preemption by applying Kansas state law in computing the sentence. We reject both 

arguments and affirm the district court. 

A. Reasonableness of District Court’s Sentence 

“When reviewing a sentencing challenge, we evaluate sentences imposed by 

the district court for reasonableness.” United States v. Conlan, 500 F.3d 1167, 1169 

(10th Cir. 2007). Our analysis “has both substanti[ve] and procedural components.” 

Id. (quotation marks omitted). “Substantive reasonableness involves whether the 

length of the sentence is reasonable given all the circumstances of the case in light of 

the factors set forth in 18 U.S.C. § 3553(a).” Id. On the other hand, procedural 

reasonableness “focuses on the manner in which the sentence was calculated.” United 

States v. Masek, 588 F.3d 1283, 1290 (10th Cir. 2009). Although he does not use 

these terms, we understand Mr. Draper to be challenging solely the procedural 

reasonableness of his sentence since his argument questions whether his sentence was 

properly calculated. See Opening Br. at 7 (“[I]t was unreasonable . . . to apply Kansas 

state law rather than federal law in deciding that the Appellant’s use of controlled 
5 

substances . . . were Grade B rather than Grade C violations under the Sentencing 

Guidelines.”). Therefore, we focus our review on the procedural reasonableness of 

Mr. Draper’s sentence.2

1. Standard of Review 

“[W]e generally review the procedural reasonableness of th[e] defendant’s 

sentence using the familiar abuse-of-discretion standard of review, under which we 

review de novo the district court’s legal conclusions regarding the Guidelines and 

review its factual findings for clear error.” United States v. Sanchez-Leon, 764 F.3d 

1248, 1262 (10th Cir. 2014) (internal citations, quotation marks, and alteration 

omitted). “An error of law is per se an abuse of discretion.” Id. (quotation marks 

omitted). 

2. Analysis 

Mr. Draper argues the district court abused its discretion by applying Kansas 

state law, rather than federal law, in finding that his cocaine and methamphetamine 

use were Grade B violations. The district court found that a plain reading of U.S.S.G. 

§ 7B1.1(a)(2) of the Guidelines does not require a court to consider only federal law 

when the conduct in question violates both federal and state law. 

 2

 To be sure, we have suggested elsewhere that “the line between procedural 

and substantive reasonableness is blurred.” United States v. Barnes, 890 F.3d 910, 

917 (10th Cir. 2018). Thus, in some cases, it might not be proper to consider one 

issue completely independently of the other. But here, where Mr. Draper challenges 

only the process by which the district court determined his below-guidelines 

sentence, we need not separately analyze whether that sentence was substantively 

reasonable. 
6 

We interpret the Sentencing Guidelines “according to accepted rules of 

statutory construction.” United States v. Nacchio, 573 F.3d 1062, 1066 (10th Cir. 

2009). It is the “cardinal principle of statutory construction that [i]f the language is 

clear and unambiguous, the plain meaning of the statute controls.” United States v. 

Husted, 545 F.3d 1240, 1243 (10th Cir. 2008) (quotation marks omitted). 

The Guidelines create three grades of supervised-release violations. See 

U.S.S.G. § 7B1.1(a)(1)–(3). Relevant here, U.S.S.G. § 7B1.1(a)(2) states that a 

Grade B violation encompasses “conduct constituting any . . . federal, state, or local 

offense punishable by a term of imprisonment exceeding one year.” By contrast, 

Grade C violations include “conduct constituting . . . a federal, state, or local offense 

punishable by a term of imprisonment of one year or less.” U.S.S.G. § 7B1.1(a)(3). 

Thus, the Guidelines plainly authorize a district court to consider not only federal 

law, but also state and local laws, in classifying a supervised-release violation. 

Furthermore, nothing in the plain text of the Guidelines requires the sentencing 

court to choose federal law over state law when the offender’s conduct violates both. 

In fact, the Guidelines provide that when a violation of supervised-release conditions 

“constitutes more than one offense, the grade of violation is determined by the 

violation having the most serious grade.” U.S.S.G. § 7B1.1(b). Apparently 

contemplating situations where, as here, a violation constitutes an offense of both 

federal and state law, this provision expressly authorizes a court to classify the 

violation based on the most serious state offense. 
7 

Mr. Draper relies on United States v. Robles for the proposition that “[w]hile 

simple possession of cocaine is a federal crime, punishable by a term of 

imprisonment of less than one year if the defendant has no prior relevant drug 

convictions, it is punishable by imprisonment of a year or more if the defendant has 

one or more prior relevant drug convictions.” Opening Br. at 6–7 (quoting United 

States v. Robles, 447 F. App’x 892, 895 (10th Cir. 2012) (unpublished)). But Robles 

does nothing to inform the issue at hand. In Robles, the defendant was prosecuted 

under 21 U.S.C. § 844 for cocaine possession, punishable by a term of imprisonment 

of less than one year if the defendant has no prior conviction, or more than one year 

if the defendant has prior relevant convictions. Robles, 447 F. App’x at 895. The 

issue there was not whether state or federal law should apply for sentencing under the 

Guidelines, but rather, whether U.S.S.G. § 7B1.1 distinguishes between “prior 

convictions” and “instant convictions” for purposes of triggering § 844’s recidivist 

penalties. Id. at 896. Because the defendant in Robles was guilty of only a federal law 

violation, the sentencing court necessarily referenced only federal law to calculate 

the Guideline range under U.S.S.G. § 7B1.1(a)(2). Nothing in Robles speaks to 

whether U.S.S.G. § 7B1.1(a)(2) authorizes a sentencing court to consider state law 

offenses. Thus, Mr. Draper’s reliance on Robles is misplaced. 

In sum, the district court did not abuse its discretion by considering Kansas 

law in determining Mr. Draper’s violations constituted a Grade B violation. Based on 

the plain language of the Guidelines, the district court’s determination was 

reasonable and not an abuse of discretion. 
8 

B. Supremacy Clause 

For the first time on appeal, Mr. Draper argues the Supremacy Clause forbids 

the use of state law in determining sentencing under U.S.S.G. § 7B1.1(a)(2). We 

reject this argument. 

1. Standard of Review 

“As a general rule, when a defendant fails to preserve an objection to the 

procedural reasonableness of his sentence, we review only for plain error.”3

 United 

States v. Martinez-Barragan, 545 F.3d 894, 899 (10th Cir. 2008). “We find plain 

error only when there is (1) error, (2) that is plain, (3) which affects substantial 

rights, and (4) which seriously affects the fairness, integrity, or public reputation of 

judicial proceedings.” United States v. Romero, 491 F.3d 1173, 1178 (10th Cir. 

2007). Defendant bears the burden to prove each of these elements. Id. 

2. Analysis 

The Supremacy Clause provides that the laws of the United States “shall be the 

supreme Law of the Land . . ., any Thing in the Constitution or Laws of any State to 

the Contrary notwithstanding.” U.S. Const. art. VI, cl. 2. Pursuant to the Supremacy 

Clause, we have identified three ways in which federal law can “preempt” state law: 

 3

 Mr. Draper alleges in his reply brief that this issue was preserved below and 

should be reviewed for abuse of discretion rather than plain error. Notwithstanding 

the fact that he never mentioned preemption or the Supremacy Clause, he points to 

his statement that “[i]f there was a conflict of law, this court would apply federal law 

in a situation like this.” ROA at 82; Reply Br. at 4. This passing reference is 

insufficient to preserve his argument for appeal. See United States v. A.B., 529 F.3d 

1275, 1279 n.4 (10th Cir. 2008) (“We have repeatedly declined to allow parties to assert 

for the first time on appeal legal theories not raised before the district court, even when 

they fall under the same general rubric as an argument presented to the district court.”).
9 

express preemption, field preemption, and conflict preemption. See Cerveny v. 

Aventis, Inc., 855 F.3d 1091, 1097–98 (10th Cir. 2017). 

The traditional preemption analysis looks to whether federal law 

expressly or implicitly preempts state law. Absent express preemptive 

language in the statute, Congress may implicitly preempt state law 

“where the scheme of federal regulation is so pervasive as to make 

reasonable [the] inference that Congress left no room for the States to 

supplement it” (“field preemption”), or “where compliance with both 

federal and state regulations is a physical impossibility, or where state 

law stands as an obstacle to the accomplishment and execution of the 

full purposes and objectives of Congress” (“conflict preemption”). 

Pueblo of Pojoaque v. New Mexico, 863 F.3d 1226, 1235 (10th Cir. 2017) (citing 

Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 98 (1992)). None of these 

theories of preemption supports Mr. Draper’s argument.4

 Express preemption applies only where “Congress explicitly indicates its 

intent to supplant state law.” Cook v. Rockwell Int’l. Corp., 790 F.3d 1088, 1092 

(10th Cir. 2015). Nothing in U.S.S.G. § 7B1.1 explicitly indicates an intent to 

supplant state law. Indeed, the provision does just the opposite, authorizing the 

sentencing court to consider a “federal, state, or local offense.” U.S.S.G. 

§ 7B1.1(a)(2) (emphasis added). As the language of the Guidelines contains no 

expressly preemptive language stating that federal law should control, express 

preemption does not apply here. 

 4

 Although Mr. Draper references conflict preemption in his reply brief, his 

opening brief refers generally to “preemption” and “the Supremacy Clause.” For 

purposes of our analysis, we consider all three theories. 
10 

 Field preemption applies where a federal scheme is “so pervasive as to make 

reasonable [the] inference that Congress left no room for the States to supplant it.” 

Pueblo of Pojoaque, 863 F.3d at 1235 (quoting Gade, 505 U.S. at 98). Although the 

Guidelines likely create a scheme so pervasive as to supplant state law with respect to 

federal sentencing procedures generally, Mr. Draper has not shown that the 

Guidelines prevent a district court judge from considering state law provisions when 

classifying a defendant’s supervised release violation where expressly permitted by a 

specific Guideline. 

Implied preemption requires a showing that compliance with both federal and 

state law is a “physical impossibility,” or that state law is an obstacle to 

accomplishment and execution of Congressional objectives. See id. Mr. Draper 

makes no such showing here. Mr. Draper argues in his reply brief that conflict 

preemption applies because compliance with both federal law, 21 U.S.C. § 844, and 

state law, K.S.A. §§ 65-4107, 21-5701, & 21-5706, would be a “physical 

impossibility” given that federal law would result in a Grade C violation whereas 

state law would result in a Grade B violation. But the plain language of the 

Guidelines, granting the sentencing court discretion to consider “federal, state or

local offense[s],” U.S.S.G. § 7B1.1(a)(2) (emphasis added), does not require 

simultaneous compliance with conflicting federal and state law, so no “physical 

impossibility” exists. Moreover, as we have already observed, the Guidelines resolve 

any potential conflict between state or federal offenses by providing that when a 

violation of supervised-release conditions “constitutes more than one offense, the 
11 

grade of violation is determined by the violation having the most serious grade.” 

U.S.S.G. § 7B1.1(b). Therefore, consideration of state law does not pose an obstacle 

to the accomplishment and execution of Congressional objectives. See Pueblo of 

Pojoaque, 863 F.3d at 1235.

 Because Mr. Draper has shown no error, we need not address the remaining 

prongs of the plain-error test. Mr. Draper has failed to show that the district court 

plainly erred in applying Kansas state law, rather than federal law, in finding that Mr. 

Draper’s cocaine and methamphetamine violations were Grade B violations. We 

therefore deny relief on this claim. 

III. CONCLUSION 

We AFFIRM the sentence imposed by the district court. 

Entered for the Court 

Carolyn B. McHugh 

Circuit Judge