Denton

ORDER

The opinion filed on March 24, 2010, is hereby withdrawn and replaced with an opinion filed concurrently with this order.

With the filing of the new opinion, the Plaintiff-Appellee’s petition for panel rehearing is DENIED.

OPINION

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 conviction. Although the state authorities did not charge Denton with domestic abuse, the district court found that Den-ton’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.

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…