In United States v. Aragon, 922 F.3d 1102 (10th Cir. 2019), the Tenth Circuit issued an interesting but fact-specific holding that the district court clearly erred in determining the applicable drug quantity. At the same time, the opinions in Aragon raised without resolving fundamental questions about the role of the court and counsel in sentencing proceedings. Read on about the opinion, and be sure to check out the takeaways at the bottom of the post.
I. The Drug Quantity Issue
Leonard Aragon pleaded guilty to possessing with intent to distribute controlled substances. The charges were based on two controlled buys in which Mr. Aragon sold a total of 71.9 grams of heroin to a confidential informant. The drug quantity issue arose from additional suspected drugs recovered from Mr. Aragon’s car at the time of his later arrest. The district court found that the suspected drugs amounted to 11 additional grams of heroin and 28.5 grams of methamphetamine. The district court’s findings increased Mr. Aragon’s offense level by 4 and produced a higher guidelines range.
On appeal, Mr. Aragon maintained that the district court clearly erred by determining that the suspected heroin weighed 11 grams and that the suspected methamphetamine weighed 28.5 grams. The record revealed only the “packaged weights” of the suspected drugs, not the “net weights” of the drugs themselves. The district court had attempted to derive the net weights by “deducting half a gram for the packaging” of each package. Slip op. at 7. It was this move that Mr. Aragon attacked as clearly erroneous. Mr. Aragon pointed out there was no evidence about the weight of the packaging and posited that the available photographs made it “impossible to tell” how much of the packaged weight was attributable to the packaging itself. Id. at 14.
The Tenth Circuit agreed. The Court characterized “the district court’s half-a-gram figure” as “guesswork” and ruled that drug quantity findings cannot be sustained on such a basis. Id. The Tenth Circuit went on to reject a harmless-error defense interposed by the Government. The Government argued that Mr. Aragon’s offense level would have remained the same “even if the packaging of the heroin and methamphetamine found in his car weighed 11 grams each.” Id. at 15. The Tenth Circuit, however, took note of cases in which the weight attributed to drug packaging “was dramatic,” including a prior Tenth Circuit case in which the packaged weight of heroin was 28.2 grams but the net weight was only 3.8 grams. Id. Given that the photographs in the case were ambiguous, the Tenth Circuit found itself unable to conclude that the district court’s error did not affect Mr. Aragon’s offense level. Id. at 16.
The Tenth Circuit vacated Mr. Aragon’s sentence and remanded for resentencing. Id. at 19.
II. The Roles of District Courts and Counsel at Sentencing
Although the Tenth Circuit vacated Mr. Aragon’s sentence on narrow grounds, both the Court’s opinion and a concurrence by Judge Holmes broached broader issues.
A. What are the limits on a district court’s authority to act sua sponte at sentencing?
Before ruling in favor of Mr. Aragon on the drug quantity issue, the Tenth Circuit addressed and rejected Mr. Aragon’s argument that the district court had abused its discretion by acting sua sponte at sentencing.
This issue arose because it was the sentencing judge, not the Government, who elicited the evidence regarding what was found in Mr. Aragon’s car. The parties had signed a plea agreement stating that the appropriate guidelines range was one that did not add levels based on what was found in Mr. Aragon’s car. Id. at 2-4. The Government had agreed with that calculation because, unlike the heroin from the controlled buys, the suspected drugs found in Mr. Aragon’s car were neither field tested nor sent to a laboratory for formal testing. Id. at 6. No such testing was pursued “because Mr. Aragon had quickly indicated his intent to resolve the case, which prompted the government to cease its investigation.” Id. The sentencing judge, however, decided to collect and present its own evidence regarding what was found in Mr. Aragon’s car. The judge directed the Government to provide the court with “all documents and reports relating to Mr. Aragon’s arrest and the discovery of [suspected] drugs in his car,” a police report relating to phone calls that Mr. Aragon had made from jail, and a report regarding the contents of Mr. Aragon’s cell phone. Id. at 4. In addition, the judge directed the Government to “have the case agent present at sentencing.” Id. Over Mr. Aragon’s objection, the district court relied on the evidence that it had gathered to increase Mr. Aragon’s guidelines range.
Mr. Aragon maintained the district court’s sua sponte actions were improper, but the Tenth Circuit disagreed. The Court reaffirmed prior precedent that a district court’s power to gather and elicit its own evidence is incident to its obligation to determine the facts relevant facts at sentencing. Id. at 8. Still, the Court recognized that this power is not absolute. While ultimately rejecting Mr. Aragon’s argument, the Court did agree with Mr. Aragon on two preliminary points: (1) that a sentencing judge who gathers and elicits his own evidence “must take care not to create the appearance that he or she is less than totally impartial” and (2) that a district court’s power to gather and elicit its own evidence is “subject to abuse-of-discretion review.” Id. at 8, 10. The Court simply held that Mr. Aragon had not established an abuse of discretion on the particular facts of his case. Id. at 8-12.
The Aragon opinion ultimately sheds little broader light on when a district court’s sua sponte conduct at sentencing may go too far. The decision says that sua sponte actions may be overturned for an abuse of discretion. The opinion does not explain which factors are material to assessing whether a district court has abused its discretion, though it did deem significant that the judge had “made multiple statements to Mr. Aragon reassuring him that the manner in which the additional evidence was uncovered would not impact his sentence.” Id. at 11.
B. Must counsel disclose to the district court all information that “reasonably could be deemed” to affect the guidelines range?
A concurring opinion by Judge Holmes took aim at an ethical question that had been raised by the sentencing judge. In explaining his decision to gather and elicit evidence sua sponte, the district judge expressed the view that counsel for the parties had intentionally concealed the fact that contraband had been found in Mr. Aragon’s car and thereby acted improperly. Id. at 20 (Holmes, J., concurring). The principal opinion, however, described how defense counsel had disclosed at the change-of-plea hearing that contraband that might have increased Mr. Aragon’s offense level had been found in his car when he was arrested, and the Court assumed without deciding that the district court clearly erred in finding that the parties had acted deceptively. Id. at 2-3, 8-9 (principal opinion). Judge Holmes deemed himself “content with that assumption” and “d[id] not opine on the propriety of counsel’s actions in this case.” Id. at 20, 26 (Holmes, J., concurring). Nevertheless, speaking “hypothetically,” Judge Holmes wrote separately to offer his view that it would violate counsel’s duty of candor to the tribunal to “agree to intentionally withhold from the court’s consideration evidence that reasonably could be deemed to qualify as relevant conduct.” Id. at 24. Neither of the other two judges on the panel joined Judge Holmes’s concurrence.
- Packaged Weights, Gross Weights, and Net Weights (Oh My?)
Be on guard for drug quantities that are reported as “packaged weights” or (equivalently) as “gross weights” — that is, the combined weight of drugs and their packaging. Likewise, be skeptical if quantities reported do not explicitly specify that they are “net weights” — that is, the weight of the drugs themselves, not including any packaging. Under U.S.S.G. § 2D1.1 n.1, the applicable drug quantity does not include packaging or other material “that must be separated from the controlled substance before the controlled substance can be used.” And the Aragon opinion highlights cases in which the difference between gross weight and net weight was large.
- No Guessing Allowed.
Aragon is also useful because it reemphasizes the more broadly applicable principle that a drug quantity calculation must be grounded in something more than guesswork. Consider an objection on these grounds any time the Government’s or Probation’s drug quantity calculation is based on ambiguous or contradictory information.
- The Judge’s Authority to Investigate
Aragon confirms that, as a general matter, a judge may gather and elicit evidence in connection with sentencing. Defense counsel should anticipate and, in appropriate cases prepare for, this possibility.