UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JOHN CHARLES BODDY, Defendant - Appellant. No. 19-6113 (D.C. No. 5:15-CR -00148-PRW-1) (W.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before LUCERO , BACHARACH , and MORITZ , Circuit Judges.

________________ _________________ John Boddy appeals the district court’s order revoking his term of supervised release. For the reasons e xplained below, we affirm. Background
In 2015, Boddy pleaded guilty to failure to register as a sex offender in violation of 18 U.S.C. § 2250( a). The district court senten ced Boddy to 19 months in prison followed by five years of supervis ed release. After B oddy served his prison

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Ci r. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### April 23, 2020 Christopher M. Wolpert Clerk of Court2 sentence, the district court revoked his s upervised release for the first time in September 2018, imposing a nine-month pris on sentence. The district court also imposed several new special conditions of s upervised release. As relevant here, the district court required: (1) that Boddy “shall not view, pur chase, possess, or distribute any form of pornography depicting sexually explicit conduct as de fined in 18 U.S.C. [§] 2256(2),” and (2) that “[i]f homeless upon release, [Boddy] shall reside at a residential re-entry center (RRC) for up to 180 days . . . [and, w]hile at such RRC, [he] shall follow all rules and conditi ons of the facility.” Supp. R. 42. In 2019, shortly after Bod dy began his second term of supervised release at the Oklahoma Halfway House (OHH), the government alleged that he violated these two conditions. Specifically, the government al leged that he “ possess[ed] . . . pornography depicting se xually explicit conduct” on a sm artphone. R. vol. 1, 10. It further alleged that Boddy di d not “follow all rules and conditions of the facility” because he possessed a smart phone and a cigarette; was pr esent in a restricted area; and was observed on multiple occasions in an “altered or in toxicated state.” Id. at 9– 10. Although Boddy admitted th at videos on the phone met the definition of sexually explicit content, he denied that he knew such images were on the phone. He further denied that he violated OHH’s rules. At the revocation hearing, the district court considered video evidence as well as written reports and testimony from Boddy’s probation officer and OHH staff members. Boddy’s probation of ficer testified that at one point, OHH staff searched Boddy and found a smartphone—which OHH rules prohibit—that Boddy was3 “attempting to hide . . . in his clothing.” R. vol. 3, 19. The officer then performed a forensic examination of th e phone and found sexually explicit content on it. In another incident, a staff memb er testified that he obser ved Boddy beha ving oddly and in a manner suggesting that he was int oxicated. A third incident, captured on a security camera and on a staff membe r’s cell phone, showed Boddy entering a restricted area of OHH. The probation o fficer, who reviewed the staff members’ reports and the videos, testified that Bodd y appeared “to be under the influence of a[n] intoxicant, inhalant, [or] some subs tance” during some of these incidents; the officer “presum[ed]” the substa nce to be K2, a type of synt hetic cannabis that he said does not always appear on drug tests. Id. at 22. (Subsequent ur inalysis tests were negative.) The district court concluded that Bod dy violated the two conditions as the government alleged and thus revoked his term of supervised release. See 18 U.S.C. § 3583(e)(3). It calculated—and Bod dy and the government agreed—that the maximum sentence under the Sentencing Guidelines was 24 months with a recommended range of seven to 13 months. It sentenced Boddy to 12 months in prison followed by four years of s upervised release. Boddy appeals. Analysis Boddy argues that the district court erred in finding that he violated the conditions of his supervised release. 1 “We review the district court’s decision to

1 Boddy purports to also challenge th e substantive reasonableness of his 12- month sentence. But as the government point s out, “[n]owhere in [his] brief does he4 revoke supervised release for abuse of discretion.” United States v. Jones , 818 F.3d 1091, 1097 (10th Ci r. 2016) (quoting United States v. LeCompte , 800 F.3d 1209, 1215 (10th Cir. 2015)). “A district court a buses its discretion wh en it relies on an incorrect conclusion of law or a cl early erroneous finding of fact.” United States v. Battle , 706 F.3d 1313, 1317 (10th Cir. 2013). “A finding of fact is clearly erroneous if it is without factual support in the record or if, after reviewing all of the evidence, we are left with the definite and firm conviction that a mistake has been made.” United States v. Hernandez , 847 F.3d 1257, 1263 (10t h Cir. 2017) (quoting In re Vaughn , 765 F.3d 1174, 1180 (10th Cir. 2014)). Further, at the revocation hearing, the government bore the burden of proving, by a preponderance of the evidence, that Boddy violated a condition of his supervised release—that is, that Boddy more likely than not violated that condition. See § 3583(e)(3); United States v. Craig , 808 F.3d 1249, 1257 n.7 (10th Cir. 2015); United States v. Disney , 253 F.3d 1211, 1213 (10th Cir. 2001). Thus, we may reverse the district court’s decision only if it clearly erred in finding that Boddy more likely than not violated a condition of his supervised release. On appeal, Boddy first challenges the district court’s conclusion that he violated the condition prohibiting him from po ssessing pornography. In particular, he

argue that his 12-month sentence is too long, nor does he cite the [18 U.S.C.] § 3553(a) factors or any ot her authority addressing the substantive unreasonableness of his sentence.” Aplee. Br. 1 n.1. Acco rdingly, we find that Boddy waived any substantive-unreasonableness argument. See United States v. Walker , 918 F.3d 1134, 1151 (10th Cir. 2019) (declining to addr ess inadequately briefed substantivereasonableness argument).5 argues that not enough evidence supported the district court’s finding that the content on the smartphone included “the type of depictions that w ould cause a violation” or that he knowingly possessed them. Aplt. Br . 11. This argument appears to be based on Boddy’s erroneous assertion that the condition prohibited only possession of child pornography. But the condition in fact applie d to “any form of pornography,” not just child pornography. R. vol. 1, 19. And Boddy admitted to the district court that the content met the relevant stat utory definition of sexually e xplicit conduct. The videos were therefore “the type of depictions th at would cause a violation.” Aplt. Br. 11. Boddy also contends that that “there is no testimony to show that Boddy did download” this sexually explicit content. Id. at 12. Thus, according to Boddy, there was no evidence that he po ssessed the sexually explic it content on the phone. Possession may be shown by actual or constructive knowledge, which includes “exercis[ing] dominion or control over an object” and “know[ing] the charged images exist.” United States v. Haymond , 672 F.3d 948, 955 (10t h Cir. 2012). And such knowledge may be “inferred fr om circumstantial evidence.” Id. at 957 (quoting United States v. Borg , 501 F.2d 1341, 1343 (10th Cir. 1974)). Here, the district court considered evidence that Boddy attempted to hide the phone, that Boddy told OHH staff and the probation officer that he used the phone to set up a Facebook account, that the videos were downloaded onto th e phone before staff found the phone on Boddy, and that Boddy told the officer that he had viewed other sexual images on the phone (images that the officer believed were not sexually explicit under the statutory definition). Under these circumstances, the di strict court did not clearly err when it6 found, by a preponderance of the eviden ce, that Boddy knowingly possessed the phone and the sexually explicit content on it, in violation of the condition of his supervised release prohibiting hi s possession of pornography. We may affirm the district court’ s decision revoking Bo ddy’s supervised release based solely on this conclusion. See § 3583(e)(3) (explaining that district court may revoke supervised release if it “finds . . . that th e defendant violated a condition of supervised rele ase” (emphasis added)); United States v. Jereb , 882 F.3d 1325, 1345 n.13 (10th Cir. 2018) (noting that “we are free to affirm on any ground adequately supported by the record”); United States v. Deloatch , 649 F. App’x 857, 859 (11th Cir. 2016) ( unpublished) (noting that “distr ict court’s decision to revoke a defendant’s supervised releas e is adequately supported by one alleged violation” and “any possible error in the consideration of other allegations is harmless”). But we nevertheless exercise our disc retion to briefly address Bo ddy’s remaining argument. Boddy next argues that the district court erred in fi nding that he violated the condition of supervised re lease that required him to follow OHH’s rules. In particular, he asserts that even though his behavior ma y have been “bizarre or inappropriate or difficult, [it] did not rise to the level of revocat ion,” and “[m]any of the allegations were behavioral issues but not actual violations of conditions of supervised release.” Aplt. Br. 5, 13. Th e district court found that Boddy did not follow OHH’s rules after the government presented evidence that Boddy, among other things, (1) was intoxicated, (2) en tered a restricted area, and (3) had a7 smartphone. 2 But although Boddy appears to the challenge the finding that he was intoxicated, he does not challenge the gove rnment’s evidence that he entered a restricted area. And further, as explaine d above, the government presented sufficient evidence that Boddy possess ed a smartphone, which violated OHH rules (even without the sexually explicit c ontent). Accordingly, even if we were to assume that Boddy was not intoxicated during the incide nts in question, we would nevertheless affirm the district court’s finding that he violated OHH ru les by being in a restricted area and possessing a smartphone. Thus, the district did not clearly err in finding, by a preponderance of the evidence, that Boddy violated this condition of his supervised release. Conclusion The district court did not abuse its di scretion by finding that Boddy violated the conditions of his supervis ed release. We affirm.

Entered for the Court
Nancy L. Moritz Circuit Judge

2 Boddy argues that OHH’s prohibition on smartphones effectively “prohibited [him] from having access to the [i]nternet.” Aplt. Br. 10; see also United States v. Blair , 933 F.3d 1271, 1272 (10th Cir. 2019) (finding condition that “allow[ed] the probation office to completely ban the defe ndant’s use of the [i ]nternet” was overly broad). Boddy argues that the condition re quiring him to follow OHH’s rules, which prohibited the possession of smartphones, ope rated as a “backdoor” internet-access prohibition. Aplt. Br. 11. But he did not raise this challenge to the facility’s rules at the revocation hearing, thus forfeiting it. We can review forfeited arguments for plain error, but we decline to do so here beca use Boddy does not argue for plain-error review. See United States v. Kearn , 863 F.3d 1299, 1313 (10th Cir. 2017).