FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 09-50253 Plaintiff-Appellee,

D.C. No.

v.  5:08-cr-00257-RT-1

TRAMELL D. DENTON,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the Central District of California

Robert J. Timlin, District Judge, Presiding

Submitted November 3, 2009*

Pasadena, California

Filed March 24, 2010

Before: Ronald M. Gould and Carlos T. Bea, Circuit Judges,

and Donald W. Molloy,** District Judge.

Opinion by Judge Bea

*The panel unanimously finds this case suitable for decision without

oral argument. See Fed. R. App. P. 34(a)(2). 

**The Honorable Donald W. Molloy, United States District Judge for

the District of Montana, sitting by designation. 

4733
COUNSEL

Michael Tanaka, Deputy Federal Public Defender, FPDCA —

Federal Public Defender’s Office, Los Angeles, California,

for the appellant.

Jayne Kim, Assistant U.S. Attorney, and Michael J. Raphael,

Assistant U.S. Attorney, Office of the U.S Attorney, Los

Angeles, California, for the appellee.

OPINION

BEA, Circuit Judge:

Tramell Denton appeals a federal district court order revoking his supervised release and sentencing him to nine months

in prison. The district court found Denton physically abused

his girlfriend while he was on supervised release from a prior

4736 UNITED STATES v. DENTON
conviction. Although the state authorities did not charge1

Denton with domestic abuse, the district court found that Denton’s conduct could have been charged under California Penal

Code section 273.5. A violation of that section is punishable

as either a felony or a misdemeanor; it is known as a “wobbler,” or “alternative felony/misdemeanor,” under California

law. The district court held Denton’s conduct was a Grade A

violation under the Sentencing Guidelines because wobbler

offenses are presumptively considered felonies, punishable by

more than one year in prison.2

In this case, we must decide whether a defendant’s

uncharged conduct, which would be chargeable as a wobbler

offense—an offense that may be charged as either a misdemeanor or a felony—is presumptively a felony, punishable by

more than one year in prison, for the purposes of calculating

whether the defendant committed a Grade A, B, or C violation

of his supervised release. We hold that the presumption that

1

“Charge,” as used here, means to commence criminal proceedings in

court, by Complaint or Information, following the return of an Indictment

or a Preliminary Hearing holding order. 

2United States Sentencing Guidelines section 7B1.1 states: 

(a) There are three grades of probation and supervised release

violations: 

(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. 

UNITED STATES v. DENTON 4737
a charged offense under a wobbler statute is a felony does not

apply to uncharged conduct. We reverse and remand to the

district court to exercise its discretion in deciding whether the

defendant’s conduct was felonious. 

Factual Background

In 1994, the United States District Court for the Southern

District of Mississippi convicted Denton of possession of

cocaine base with intent to distribute, in violation of 21

U.S.C. §§ 841(a)(1). The district court sentenced Denton to

160 months’ imprisonment and imposed a five-year term of

supervised release. The conditions of Denton’s supervised

release required Denton to refrain from drug use and to refrain

from committing another federal, state, or local crime while

on supervised release. Denton began serving his supervised

release in June 2005.

In November 2008, the Rialto Police Department filed a

police report which related that Denton had physically abused

his live-in girlfriend. According to the police report, Denton

slapped his girlfriend across the face, choked her, and dragged

her by her hair. California state police arrested Denton two

days later, but the State of California, for whatever reasons,

ultimately declined to charge him with domestic violence

under California Penal Code section 273.5.3

The next month, the United States Probation Office for the

Central District of California (“USPO”) filed a Petition on

Probation and Supervised Release (the “Petition”) in district

3California Penal Code section 273.5 states, in relevant part: “Any person who willfully inflicts upon a person who is his or her spouse, former

spouse, cohabitant, former cohabitant, or the mother or father of his or her

child, corporal injury resulting in a traumatic condition, is guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the

state prison for two, three, or four years, or in a county jail for not more

than one year, or by a fine of up to six thousand dollars ($6,000) or by

both that fine and imprisonment.” 

4738 UNITED STATES v. DENTON
court. The Petition alleged Denton violated the terms of his

supervised release because Denton had (1) tested positive five

times for marijuana use; (2) “inflicted corporal injury on a

cohabitant,” in violation of California Penal Code section

273.5; and (3) failed to notify the USPO that the California

state police had arrested him for physically abusing his live-in

girlfriend in November 2008. 

The district court held a hearing, where Denton admitted he

had tested positive three times for marijuana use, and admitted he had failed to notify the USPO of his November 2008

arrest. However, Denton denied he had physically abused his

live-in girlfriend, and denied the other two allegations of marijuana use.

The court held a further hearing, and the government

moved to dismiss the marijuana allegations that Denton disputed, but declined to dismiss the domestic violence allegation. The government introduced into evidence a police report

that related Denton’s assault on his girlfriend in November

2008. Denton declined to object to the police report or to contest the facts stated in the report.4

The district court found Denton violated the terms of his

supervised release. Specifically, the court found by a preponderance of the evidence that Denton inflicted corporal injury

on a cohabitant, in violation of California Penal Code section

273.5.5

4At the hearing, Denton’s counsel stated Denton would not admit to the

domestic violence offense, but would not contest the facts of the incident

as related in the police report. The defense attorney explained that if Denton admitted he had physically abused his girlfriend, state prosecutors

could still formally charge Denton with domestic violence because the

statute of limitations on that charge had not yet run. Nonetheless, according to his counsel, Denton’s “intention [was] not to contest” the domestic

violence allegation. 

5The court also found Denton used marijuana three times during his

supervised release and Denton failed to notify the USPO of his arrest. 

UNITED STATES v. DENTON 4739
The district court found that, because a domestic abuse

offense is punishable by up to four years’ imprisonment, the

domestic abuse offense is a Grade A violation of Denton’s

supervised release.6 The court then calculated Denton’s sentencing range under the Guidelines as 24-30 months’ imprisonment for violating his supervised release, based in part on

the court’s finding that Denton committed a Grade A violation.7

After reviewing the 28 U.S.C. § 3553(a) sentencing factors,

the court departed downward and sentenced Denton to nine

months’ imprisonment.8 Denton timely appealed.

Standard of Review

This court reviews de novo claims of error in a district

court’s order interpreting the Sentencing Guidelines and

reviews for abuse of discretion the district court’s application

of the Guidelines to the facts of a case. United States v. Marler, 527 F.3d 874, 876-77 (9th Cir. 2008).

Analysis

Denton does not appeal the district court’s holding that he

violated the terms of his supervised release by physically

abusing his live-in girlfriend. He appeals only the district

court’s characterization of his offense as a Grade A violation

of his supervised release. 

6The district court also found Denton’s marijuana use and failure to

notify the USPO of his arrest were Grade C violations. 

7The parties agree that if the district court had found the domestic violence offense was a Grade C violation of Denton’s supervised release, the

correct Guidelines sentencing range would have been three-to-nine

months’ imprisonment. 

8

In departing downward, the district court cited in support: Denton’s

age, his prior employment, his financial support for his daughter, his support and care for his mother, his willingness to engage in anger management, and his willingness to work with the USPO to overcome his drug

problems. 

4740 UNITED STATES v. DENTON
[1] Courts may revoke a term of supervised release and

require the defendant to serve in prison all or part of the term

of supervised release “if the court . . . finds by a preponderance of the evidence that the defendant violated a condition

of supervised release.” 18 U.S.C. § 3583(e)(3). In determining

whether a defendant violated the conditions of his supervised

release, a court may consider the defendant’s commission of

a crime even if the government ultimately did not prosecute

the defendant for that crime. U.S.S.G. § 7B1.1, cmt. 1; United

States v. Jolibois, 294 F.3d 1110, 1114 (9th Cir. 2002) (“A

[supervised release] violation . . . may be found whether [the

defendant] was ever indicted or convicted of [the] particular

offense.”).

When sentencing a defendant for violating the conditions of

his supervised release, a court must determine the applicable

advisory sentencing range under the Guidelines. See United

States v. Carty, 520 F.3d 984, 991 (9th Cir. 2008) (en banc)

(“All sentencing proceedings are to begin by determining the

applicable Guidelines range.”). A failure to calculate the correct advisory range constitutes procedural error. Id. at 993.

We reverse sentence determinations when a district court has

committed a significant procedural error. Id.

[2] To calculate the correct Guidelines sentencing range

for a violation of a defendant’s supervised release, the sentencing court must determine whether the violation is a Grade

A, Grade B, or Grade C violation.9 U.S.S.G. § 7B1.1. The relevant portion of the Sentencing Guidelines defines a Grade A

violation as conduct constituting “a federal, state, or local

offense punishable by a term of imprisonment exceeding one

year that . . . is a crime of violence.” U.S.S.G. § 7B1.1(a)(1).

The relevant portion of the Sentencing Guidelines defines a

Grade C violation as conduct constituting “a federal, state, or

9Neither party contends the domestic violence offense at issue is a

Grade B violation. Thus, we will discuss Grade A and Grade C violations

only. 

UNITED STATES v. DENTON 4741
local offense punishable by a term of imprisonment of one

year or less.” U.S.S.G. § 7B1.1(a)(3).

[3] 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. See Jolibois,

294 F.3d at 1112. Under California law, a person who commits a domestic violence offense “is guilty of a felony, and

upon conviction thereof shall be punished by imprisonment in

the state prison for two, three or four years, or in a county jail

for not more than one year.” Cal. Penal Code § 273.5.

Although the California Penal Code refers to domestic abuse

as a felony, under the Guidelines, it may be either a Grade A

violation or a Grade C violation depending on the length of

the defendant’s sentence. See, e.g., United States v. Bridgeforth, 441 F.3d 864, 871-72 (9th Cir. 2006). As the Supreme

Court has held in another context, the California domestic

abuse statute is a “wobbler,” in which an offense under the

statute can be punished either as a felony or as a misdemeanor. See Ewing v. California, 538 U.S. 11, 16 (2003) (interpreting California law).

[4] Under California law, a “wobbler” statute “is presumptively a felony and ‘remains a felony except when the discretion is actually exercised’ to make the crime a misdemeanor.”

Id. at 16 (quoting People v. Williams, 27 Cal. 2d 220, 229

(1945)). This Circuit has not decided whether this “wobbler

presumption” applies to uncharged conduct. We observe that

California courts have stated the wobbler presumption applies

to charged conduct. See, e.g., People v. Mincey, 2 Cal. 4th

408, 453 (1998) (holding the felony statute of limitations

applies to a wobbler offense initially charged as felony, without regard to the ultimate reduction to a misdemeanor); People v. McElroy, 126 Cal. App. 4th 874, 880 (2005) (“A

wobbler offense charged as a felony is regarded as a felony

for all purposes until imposition of sentence or judgment.”).

We have not found any authority, state or federal, holding the

wobbler presumption applies to uncharged conduct. 

4742 UNITED STATES v. DENTON
[5] We hold that when a district court finds that a defendant has committed a wobbler offense, but the offense is

uncharged, no presumption applies as to whether the offense

is punishable as a felony (more than one year’s imprisonment)

or a misdemeanor (less than one year’s imprisonment).10

Because no presumption applies, the district court must exercise its discretion to decide whether the offense was punishable by more than one year’s imprisonment. 

[6] To decide whether an offense was punishable by more

than one year’s imprisonment, the court should determine first

whether, assuming the offense had been charged, a California

prosecutor would have charged the offense as a misdemeanor

or a felony. If the district court finds a prosecutor would have

charged the offense as a felony, the district court must determine, second, whether a trial court would have “impose[d] a

punishment other than imprisonment in a state prison,” under

the process set forth in California Penal Code section 17(b).

For the purpose of this inquiry, the district court should follow the factors identified in People v. Superior Court (Alvarez), 14 Cal. 4th 968, 978 (1997): “[T]he nature and

circumstances of the offense, the defendant’s appreciation of

and attitude toward the offense, or his traits of character as

evidenced by his behavior and demeanor at the trial . . . [and]

the general objectives of sentencing.”

11

10As a note of caution, we do not hold that uncharged offenses are presumptively misdemeanors. When an offense is uncharged, no presumption

applies. 

11In Alvarez, the police discovered methamphetamine and drug paraphernalia during a consensual search of Alvarez’s bag. 14 Cal. 4th at 973.

The prosecution charged Alvarez with a felony violation of California

Health and Safety Code section 11377, subdivision (a). Id. The complaint

charged Alvarez with four prior serious felony convictions. Id. During the

trial, he moved to have the instant charge declared a misdemeanor, which

the trial court took on submission and granted after the jury returned a

guilty verdict. Id. at 973-74. On a petition for a writ, the Court of Appeal

held the trial court abused its discretion by failing sufficiently to take into

account Alvarez’s criminal past and for substituting its views for the Legislature’s three-strikes policy. Id. The California Supreme Court reversed

the Court of Appeal’s decision, holding that California’s three strikes law

did not modify trial courts’ discretion to reduce a wobbler offense from

a felony to a misdemeanor. 

UNITED STATES v. DENTON 4743
[7] To aid the district court, the parties should submit evidence, such as affidavits from prosecutors and defense attorneys in the relevant jurisdiction, as to whether the defendant’s

offense was more similar to offenses charged and sentenced

as felonies, or, whether the defendant’s offense was more

similar to offenses charged or sentenced as misdemeanors, as

well as any other conduct, characteristics, or circumstances

that might have affected a prosecutor’s decision about how to

charge Denton or a court’s decision about how to exercise its

discretion under California Penal Code section 17(b).12 The

district court should evaluate the parties’s evidence and

decide the appropriate Grade of the sentencing violation based

on a preponderance of the evidence.

Our holding is consistent with the commentary to the Sentencing Guidelines, which urges courts to determine the grade

of a defendant’s violation based on the defendant’s actual

conduct. U.S.S.G. § 7B1.1, cmt. 1 (“The grade of violation

does not depend upon the conduct that is the subject of criminal charges or of which the defendant is convicted in a criminal proceeding. Rather, the grade of the violation is to be

12Here, there were aspects of Denton’s conduct on both sides of the

issue whether a prosecutor would have charged him with a felony or misdemeanor, and how severely a court would have sentenced him. On the

one hand, the district court had before it evidence of the assault against the

victim. The described abuse was violent: “Denton straddled the victim and

began to choke her by squeezing her neck with both hands . . . Denton

then slapped the victim across her face. Denton then began to choke her

again . . . Denton pulled the victim into the living room by her hair.” Denton then released his live-in girlfriend and “walked outside and began to

beat and kick his dog.” Although Denton’s live-in girlfriend did not seek

medical attention, the abuse resulted in a “traumatic condition,” a bruise

on her leg. On the other hand, there were considerations in Denton’s favor:

He cared for his aged mother, paid child support for his daughter, held

down a job for much of the time, had made progress on his drug usage

problem, and in general garnered more support than fear from his live-in

girlfriend who was the victim of his prior abuse. These circumstances in

total might have invited a decision in either direction and deserve the district court’s exercise of a sound discretion. 

4744 UNITED STATES v. DENTON
based on the defendant’s actual conduct.”). A district court

should evaluate the seriousness of the defendant’s uncharged

conduct to decide whether that conduct would be punishable

by more than one year’s imprisonment.

[8] Furthermore, a defendant charged under a wobbler statute has several opportunities to challenge the characterization

of his offense as a felony. See Cal. Penal Code § 17(b). The

defendant may convince the prosecutor to charge the offense

as a misdemeanor, or the defendant may convince the court

to either impose a punishment other than imprisonment in a

state prison, such as “diversion,” or grant probation to the

defendant without imposing a sentence and declare the

offense a misdemeanor. Id. Under California law, trial courts

have longstanding authority to reduce an offense from a felony to a misdemeanor for a wobbler, without having to overcome a presumption that an offense is a felony. See People v.

Perez, 38 Cal. App. 4th 347, 363 (1995). When a defendant’s

conduct is not charged, however, the defendant’s first opportunity to convince a court that his offense is merely a misdemeanor is at his revocation hearing. The defendant should not

be subject to a higher standard for proving his offense was a

misdemeanor than the defendant would have to meet before

a state trial court if his conduct was actually prosecuted.

Finally, the Government’s reliance on United States v.

Bridgeforth, 441 F.3d 864 (9th Cir. 2006), and United States

v. Robinson, 967 F.2d 287 (9th Cir. 1992), is misplaced

because neither case involved uncharged conduct. In Robinson, the state sentencing court suspended imposition of the

defendant’s sentence and placed the defendant on probation

with nine months in county jail. 967 F.2d at 292. In Bridgeforth, the defendant was convicted and sentenced to 365 days

in county jail. 441 F.3d at 867. The Government has not

raised any authority regarding uncharged conduct. 

[9] Accordingly, the district court committed a significant

procedural error. United States v. Hammons, 558 F.3d 1100,

UNITED STATES v. DENTON 4745
1106 (9th Cir. 2009) (holding that a court that calculates

incorrectly the Guidelines range commits reversible error

even if the actual sentence is within the correct Guidelines

range). The district court did not exercise its discretion to

determine whether Denton’s uncharged offense was punishable by more or less than one year. The district court instead

applied a presumption that the uncharged offense was a felony and therefore a Grade A violation. 

[10] Although we use the term “significant procedural

error,” we hasten to add that the district court did nothing

unreasonable. To the contrary, the district court seems prescient of our opinion and departed downward from the Guidelines’ range to issue a sentence within the range that would

apply if the district court determined that Denton’s offense

was a Grade C violation. We remand only because the record

suggests the district court felt compelled to consider Denton’s

offense a Grade A violation. Instead, on remand, the district

court should exercise its discretion to decide whether Denton’s conduct constituted an offense punishable by more than

one year, in which case the offense is a Grade A violation, or

one year or less, in which case the offense is a Grade C violation. 

REVERSED AND REMANDED.

4746 UNITED STATES v. DENTON