United States v. Robles, 447 F. App'x 892

Robles was convicted in 2008 for distribution of cocaine and sentenced to 51 months’ imprisonment and 3 years’ supervised release on each count, to run concurrently; conditions prohibited new crimes and drug use.
In 2011, during supervised release, probation filed a Violation Report alleging multiple positive cocaine tests and Robles’s admission of weekly cocaine use since May 31, 2011.
The Violation Report framed a Grade B violation under U.S.S.G. § 7B1.1 and recommended a 21–24 month term, based on a prior felony drug conviction and potential imprisonment over one year.
At revocation, Robles admitted to the facts but disputed that they violated federal, state, or local law; the district court found possession in 2011 violated federal law.
Robles was sentenced to the low end of the advisory range for two concurrent Grade B violations (21 months each) followed by concurrent 1-year supervised releases; he appeals arguing (a) the conduct was not a Grade B violation, and (b) treatment could have been an alternative to incarceration.
The panel affirms, holding no plain error in grade classification and no abuse of discretion in rejecting a § 3583(d) treatment exception.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court erred in treating the 2011 possession after a 2008 felony conviction as a Grade B violation.	Robles contends the 2008 conviction cannot be a “prior conviction” to elevate penalties.	Robles argues recidivist status cannot be used to raise the grade based on the 2008 conviction.	No plain error; district court could classify as Grade B based on post-2008 possession and prior felony status.
Whether the district court failed to consider a § 3583(d) treatment exception.	Robles asserts the court did not acknowledge its discretion to order treatment.	Robles contends the court was obligated to discuss § 3583(d) options.	No abuse of discretion; court recognized discretion and explained its lack of movement toward treatment.

United States v. Flower, 29 F.3d 530 (10th Cir. 1994) (conclusory objections insufficient to preserve error; plain error review applies when not preserved)
United States v. Lopez-Flores, 444 F.3d 1218 (10th Cir. 2006) (plain error review governs sentencing challenges with no objection below)
United States v. Marcus, 130 S. Ct. 2159 (2010) (recidivist considerations can affect supervision-violation penalties)
United States v. Trotter, 270 F.3d 1150 (7th Cir. 2001) (real-offense sentencing considers actual conduct and prior offenses for offense level)
United States v. Pierce, 132 F.3d 1207 (8th Cir. 1997) (record-based discretion in applying § 3583(d) exception considerations)
United States v. Lewis, 594 F.3d 1270 (10th Cir. 2010) (plain-error framework for challenged sentencing procedures)