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 th e district court’s revocation of his supervised release, arguing that he was improperly sentenced under the Uni ted States Sentencing Commission Guidelines. Exercisi ng jurisdiction pursuant to 28 U .S.C. § 1291, we affirm.

* After examining the briefs and appellate record, this panel ha s determined unanimously that oral argument would not materially assist in t he determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is th erefore ordered submitted without oral ar gument. This order and judgmen t is not binding precedent, except under the doctr ines of law of the case, res j udicata, and collateral estoppel. It may be cited, however , for its persuasive value co nsistent with Federal Rule of Appellate Proce dure 32.1 and Tenth Circuit Rule 32.1. FILED United States Court of Appeals Tenth Circuit 

### April 10, 2019
Elisabeth A. Shumaker Clerk of Court2 I. BACKGROUND In 2007, Mr. Draper was convict ed of one count of unlawfully po ssessing a firearm after being convicted o f a felony, a violation of 18 U. S.C. § 922(g)(1). He was sentenced to 30 months’ impr isonment followed by a three-ye ar term of supervised release. One condition of his supervised release pro vided, “You must not commit another federal, state, o r local crime,” and other condi tions required drug testing and forbade him from unl awfully possessing or using a c ontrolled substance.
ROA at 121–22. Mr. Draper was released from pr ison 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 a lcohol. On September 15, 2017, Mr. Draper tested positive for cocaine. He failed to submit to a scheduled drug t est on October 2 and absconded from supervised release for approximately five months . On March 12, 2018, when the U.S. Marshals F ugitive Task Force arrested Mr. D raper, he volunteered that he would probabl y test positive for methamphet amine. After submitting to an onsite drug test , Mr. Draper test ed positive f or methamphetamine, cocaine, and marijuana. Mr. Dra per’s probation officer recommen ded that Mr. Draper’s supervised release be revoked because he had viola ted several of the conditions of supervised release by using cocaine and methamphe tamine. The probation officer issued a report classifying both violations a s Grade B violations, noting that Mr. Draper’s possessi on of these substances would h ave been “a felony3 punishable by a term of impris onment exceeding one year under K ansas state law.”
Id. at 19, 22. After a hearing on August 20, 20 18, the district court found th at Mr. Draper had committed multiple supervised -release violations, based on Mr. Draper’s stipulation admitting cocaine u se and his earlier admission of methamphetamine use to his probation officer. The G overnment argued that each viola tion was a Grade B violation under U.S.S.G. § 7B1.1 (a)(2), because possession of c ocaine 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 be cause under federal law, a first -time conviction for possession of a controlled substa nce is a misdemeanor punishabl e 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 releas e. Mr. Draper timely appealed.

1 The Sentencing Guidelines creat e three grades o f supervised-re lease violations. U.S.S.G. § 7B1.1(a) . A Grade B violation encompasse s “conduct constituting any . . . federal, sta te or local offense punishab le by a term of imprisonment exceeding one year,” while a Grade C violation inc ludes “conduct constituting . . . a federal, state , or local offense punishabl e by a term of imprisonment of one year or less.” Id.4 II. DISCUSSION On appeal, Mr. Draper appeals hi s sentence on two grounds: firs t, he challenges the procedural reasona bleness of his sentence, argui ng the district court erred by applying Kansas state l aw, rather than federal law, to determine whether Mr. Draper’s cocaine and methampheta mine violations were Grade B or Grade C violations under the Guidelines . Second, Mr. Draper argues the district court violated the Supremacy Clause of the Un ited States Constitution and the doctrine of federal preemption by applying Kansas sta te law in computing the senten ce. We reject both arguments and affirm t he district court.
A. Reasonableness of District Court’s Sentence “When reviewing a sentencing cha llenge, we evaluate sentences i mposed by the district court for reasonableness.” United States v. Conlan , 500 F.3d 1167, 1169 (10th Cir. 2007). Our analysis “h as both substanti[ve] and proc edural components.”
Id. (quotation marks omitted). “Substantive reasonablene ss involves whether the length of the sentence is reasonable given all the circumstance s 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 ma nner in which the sentence was calculated.” United States v. Masek , 588 F.3d 1283, 1290 (10th Cir . 2009). Although he does not us e these terms, we understand Mr. Dra per to be challenging solely the procedural reasonableness of his sentence since his argument questions whe ther his sentence was properly calculated. See Opening Br. at 7 (“[I]t was unr easonable . . . to apply Kansas state law rather than federal law in deciding that the Appellan t’s use of controlled5 substances . . . were Grade B rath er than Grade C violations un der the Sentencing Guidelines.”). Therefore, we fo cus our review on the procedural reasonableness of Mr. Draper’s sentence. 2
1. Standard of Review “[W]e generally review the proce dural reasonableness of th[e] d efendant’s sentence using the familiar abuse- of-discretion standard of rev iew, under which we review de novo the district cour t’s legal conclusions regarding the Guidelines and review its factual findi ngs for clear error.” United States v. Sanchez-Leon , 764 F.3d 1248, 1262 (10th Cir. 2014) (in ternal citations, quotation mark s, and alteration omitted). “An error of law is pe r se an abuse of discretion.” Id. (quotation marks omitted).
2. Analysis Mr. Draper argues the district c ourt abused its discretion by a pplying 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 pl ain reading of U.S.S.G. § 7B1.1(a)(2) of the Guidelines does not require a court to con sider only federal law when the conduct in que stion violates both federal and state la w.

2 To be sure, we have suggested e lsewhere that “the line between procedural and substantive reasona bleness is blurred.” United States v. Barnes , 890 F.3d 910, 917 (10th Cir. 2018). T hus, in some cases, it might not be prop er to consider one issue completely indepe ndently of the other. But here, where Mr . Draper challenges only the process by which the di strict court determined his bel ow-guidelines sentence, we need not separately analyze whether that sentence was substantively reasonable.6 We interpret the Sentencing Guid elines “according to accepted r ules of statutory construction.” United States v. Nacchio , 573 F.3d 1062, 1066 (10th Cir. 2009). It is the “cardinal princi ple of statutory construction that [i]f the language is clear and unambiguous, the plain meaning of the statute control s.” United States v. Husted , 545 F.3d 1240, 1243 (10th Cir . 2008) (quotation marks omitted ). The Guidelines create three grad es of supervised-release violat ions. See U.S.S.G. § 7B1.1(a)(1)–(3). Relev ant here, U.S.S.G. § 7B1.1(a)( 2) states that a Grade B violation encompasse s “conduct constituting any . . . f ederal, state, or local offense punishable by a term of imprisonment exceeding one year .” By contrast, Grade C violations include “c onduct constituting . . . a federa l, state, or local offense punishable by a term of imprisonm ent of one year or less.” U.S. S.G. § 7B1.1(a)(3). Thus, the Guidelines plainly aut horize a district court to cons ider not only federal law, but also state and local law s, in classifying a supervised -release violation. Furthermore, nothing in the plain text of the Guidelines requir es 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 superv ised-release conditions “constitutes more than one offense , the grade of violation is d etermined by the violation having the mo st serious grade.” U .S.S.G. § 7B1.1(b). Apparently contemplating situations where , as here, a violation constitute s an offense of both federal and state law , this provision expre ssly authorizes a co urt 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 y ear if the defendant has no prio r 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 C ir. 2012) (unpublished)). But Robles does nothing to inform the issue at hand. In Robles , the defendant was prosecuted under 21 U.S.C. § 844 f or cocaine possessio n, punishable by a t erm of imprisonment of less than one year if the de fendant has no prior conviction, or more than one year if the defendant has pri or relevant convictions. Robles , 447 F. App’x at 895. The issue there was not whether state or federal law should apply f or sentencing under the Guidelines, but rather, whether U.S.S.G. § 7B1.1 distinguishes between “prior convictions” and “instant convic tions” for purposes of triggeri ng § 844’s recidivist penalties. Id. at 896. Because the defendant in Robles was guilty of only a federal law violation, the sentencing court necessarily refer enced only fed eral 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) au thorizes a sentencing court to consider state law offenses. Thus, Mr. D raper’s reliance on Robles is misplaced. In sum, the district court did not abuse its discretion by cons idering Kansas law in determining Mr. Draper’s violations constituted a Grade B violation. Based on the plain language of the Guide lines, the district court’s dete rmination was reasonable and not an a buse of discretion.8 B. Supremacy Clause For the first time on appeal, M r. Draper argues the Supremacy C lause forbids the use of state law in determin ing sentencing under U.S.S.G. § 7B1.1(a)(2). We reject this argument.
1. Standard of Review “As a general rule, when a defe ndant fails to preserve an objec tion to the procedural reasonableness of his sentence, we review only for p lain error.” 3 United States v. Martinez-Barragan , 545 F.3d 894, 899 (10th Cir. 2008). “We find plain error only when there is (1) erro r, (2) that is plain, (3) whic h affects substantial rights, and (4) which seriously a ffects 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 o f these elemen ts. Id.
2. Analysis The Supremacy Clause provides that the laws of the United State s “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. Purs uant 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 pres erved below and should be reviewed for abuse of discretion rather than plain er ror. Notwithstanding the fact that he never mentione d preemption or the Supremacy Cl ause, he points to his statement that “[i]f there wa s a conflict of law, this cour t would apply federal law in a situation like this.” ROA at 82; Reply Br. at 4. This pass ing 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 repeat edly declined t o 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 presente d to the district court.”).9 express preemption, field preem ption, and conflict preemption. See Cerveny v. Aventis, Inc. , 855 F.3d 1091, 1097–98 (10th Cir. 2017). The traditional preemption analys is looks to whether federal la w expressly or implicitly preempts state law. Absent express pree mptive language in the statute, Congress may implicitly preempt state law “where the scheme of federal re gulation is so pe rvasive as to m ake reasonable [the] inference that C ongress left no room for the S tates to supplement it” (“field preemption” ), or “where compliance with both federal and state regulations is a physical impossibility, or w here state law stands as an obstacle to t he accomplishment and execution o f the full purposes and objectives of Co ngress” (“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 supp orts Mr. Draper’s argument. 4 Express preemption applies only where “Congress explicitly ind icates 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 indica tes an intent to supplant state law. Indeed, the provision does just the opposit e, authorizing the sentencing court to consid er a “federal, state, or local offense.” U.S.S.G. § 7B1.1(a)(2) (emphasis added) . As the language of the Guidelin es contains no expressly preemptive language sta ting that federal law should c ontrol, express preemption does not apply here.

4 Although Mr. Draper references c onflict preemption in his repl y brief, his opening brief refers generally to “preemption” and “the Suprema cy Clause.” For purposes of our analysis, we consider all three theories.10 Field preemption applies where a federal scheme is “so pervasi ve as to make reasonable [the] inference that C ongress left no room for the S tates to supplant it.” Pueblo of Pojoaque , 863 F.3d at 1235 (quoting Gade , 505 U.S. at 98). Although the Guidelines likely create a schem e so pervasive as to supplant s tate law with respect to federal sentencing procedures g enerally, Mr. Draper has not sho wn that the Guidelines prevent a district c ourt judge from considering stat e law provisions when classifying a defendant’s superv ised release violation where ex pressly permitted by a specific Guideline. Implied preemption requires a show ing that compliance with both federal and state law is a “physical impossi bility,” or that state law is a n obstacle to accomplishment and execution of Congressional objectives. See id. Mr. Draper makes no such showing here. Mr. D raper argues in his reply brie f that conflict preemption applies because complia nce with both federal law, 21 U.S.C. § 844, and state law, K.S.A. §§ 65-4107, 21- 5701, & 21-5706, would be a “p hysical impossibility” given that federal law would result in a Grade C violation whereas state law would result in a Grad e B violation. But the plain la nguage of the Guidelines, granting the senten cing court discretion to conside r “federal, state or local offense[s],” U. S.S.G. § 7B1.1(a)(2) (emphasis added), doe s not require simultaneous compliance with conf licting federal and state law, so no “physical impossibility” exists. Moreover , as we have already observed, t he Guidelines resolve any potential conflict between sta te or federal offenses by pro viding that when a violation of supervis ed-release conditions “constitutes more th an one offense, the11 grade of violation is determine d by the violation having the mo st serious grade.” U.S.S.G. § 7B1.1(b). Therefore, consideration of state law does not pose an obstacle to the accomplishment and exec ution 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 t hat the district court plainly erred in applying Kansas state law, rather than federal law, in finding that Mr. Draper’s cocaine and methampheta mine violations were Grade B vi olations. We therefore deny relief on this claim.
III. CONCLUSION We AFFIRM the sentence impos ed by the district court. Entered for the Court
Carolyn B. McHugh Circuit Judge