from the United States District Court for the District of
Colorado (D.C. No. 1:17-CR-00324-RM-1)
Lee, Assistant Federal Public Defender (Virginia L. Grady,
Federal Public Defender, with him on the briefs), Denver,
Colorado, for Defendant-Appellant.
Michael C. Johnson, Assistant United States Attorney (Robert
C. Troyer, United States Attorney, with him on the brief),
Denver, Colorado, for Plaintiff-Appellee.
HOLMES, McKAY, and KELLY, Circuit Judges.
Aragon was sentenced to 48 months' imprisonment after
pleading guilty to one count of possession with intent to
distribute controlled substances in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(C). He now appeals that sentence.
On appeal, Mr. Aragon argues the district court erred in
finding that two packages found in his car contained 28.5
grams of methamphetamine and 11 grams of heroin,
respectively. He also contends "the judge abused his
discretion by sua sponte presenting his own evidence
in support of a higher sentence." (Appellant's Br.
at 1.) Finally, Mr. Aragon requests that his case be assigned
to a different judge for resentencing on
March and April 2017, the Federal Bureau of Investigation
made two controlled buys of heroin from Mr. Aragon. On the
first occasion, the FBI purchased two packages of heroin that
weighed approximately 25 grams apiece when field-tested. The
heroin purchased on the second occasion weighed 24.8 grams
when field-tested. Laboratory testing confirmed that the
three packages in fact contained heroin with net weights of
23.67, 24.07, and 24.16 grams, respectively. In September
2017, Mr. Aragon was indicted on two counts of distributing
heroin. Three months later, he agreed to plead guilty to one
count of possession with intent to distribute.
district court held a change of plea hearing in December
2017. The judge began the hearing by asking the parties why,
pursuant to the plea agreement, they had both agreed to ask
for a sentence at the high end of the advisory guideline
range. Defense counsel responded that the parties had
"limited the relevant conduct in terms of [their]
stipulation of facts" and "the base-offense level
would have been higher" had they included
"everything that could be included from the
discovery." (Appellant's App. Vol. III at 10.) When
the judge asked why relevant conduct was excluded, defense
counsel stated that the prosecutor understood Mr. Aragon to
be "closer to the bottom" of his drug-distribution
organization and thus the parties considered it
"fair" to disregard "some uncharged conduct
that could have been either charged or used as relevant
conduct." (Id. at 10-11.) Upon further
prompting by the judge, defense counsel identified the
uncharged conduct as "a number of items of contraband
[found] in [Mr. Aragon's] car" when he was arrested.
(Id. at 11.)
in the hearing, the judge raised the issue of whether Mr.
Aragon could subsequently be charged with the other conduct.
The parties both acknowledged that the plea agreement did not
contain any terms relating to the uncharged conduct but also
stated that they understood the government had no intention
of so charging him. Because of this, the judge reset the
change of plea hearing, instructing the parties to
"write a Plea Agreement that doesn't hide things
from me; that tells me what is going on[, ] what is agreed to
and what is not agreed to." (Id. at 19.) The
judge also stated, "[T]he odds on a presentence
investigation just went up dramatically." (Id.)
parties returned that afternoon, and the judge started the
hearing over from the beginning. The revised plea agreement
provided that the government would "not pursue
additional charges or a sentencing increase based on items
found in a vehicle at the time of the defendant's
arrest." (Appellant's App. Vol. I at 18.) In
reviewing the portion of the plea agreement regarding the
parties both again asking for a sentence at the high end of
the guidelines range-37 months based on a total offense level
of 17-the judge noted "the mystery question of what this
other stuff found in the car was, and whether or not it's
relevant conduct." (Appellant's App. Vol. III at
34-35.) At the hearing's conclusion, the judge requested,
"[c]ontrary to [his] ordinary practice," "that
the probation department conduct an independent factual
investigation of the offense conduct in this matter."
(Id. at 48.)
March 2018, the district court issued a minute order stating
that the court was "concerned about the facts and
relevant conduct in this case" and directing the
government to "have the case agent present at
sentencing" and to furnish the court with "copies
of all documents and reports relating to Mr. Aragon's
arrest and the discovery of drugs in his car (in the
possession of law enforcement and/or the U.S. Attorney's
Office)." (Appellant's App. Vol. I at 25.) When the
government sent the court a binder containing these documents
but excluding portions of a police report relating to jail
phone calls, the court issued a minute order directing the
government to provide the missing pages of the police report.
In response to this second order, the government also gave
the court a report regarding the contents of Mr. Aragon's
additional documents reveal that law enforcement obtained and
executed a search warrant for Mr. Aragon's car in
September 2017. The search was conducted by Task Force
Officer Jeremy Mathews. Officer Mathews' inventory of the
property found in the car includes a cell phone, pills,
bullets, almost $3, 000 in cash, a digital scale, and a
number of packages containing suspected heroin,
methamphetamine, and cocaine. The record contains numerous
photographs of Mr. Aragon's car and its contents.
presentence investigation report indicates that "[t]he
case agent, Andrew Cohen, reported the drugs recovered from
the defendant's vehicle yielded the following packaged
weights[:] heroin (11.5 grams), cocaine (6.7 grams),
methamphetamine (29 grams), and 3 pills of oxycodone."
(Appellant's App. Vol. II at 13.) Agent Cohen also
reported that none of these drugs had been sent to the
laboratory for testing. The PSR calculated the marijuana
equivalency of the drugs from the controlled buys and from
Mr. Aragon's car, totaling 145.44 kilograms of marijuana
and resulting in a base offense level of 24. The PSR also
found that Mr. Aragon was entitled to a 3-level reduction for
acceptance of responsibility, yielding a total offense level
of 21. With Mr. Aragon's criminal history category of
III, the PSR identified the guideline sentencing range as 46
to 57 months and recommended a sentence of 46 months'
Aragon filed objections to the PSR, primarily contesting its
consideration of the substances found in his car.
Specifically, Mr. Aragon stated that he "disputes that
he possessed any controlled substances at [the time of his
arrest], let alone these specific controlled substances and
quantities." (Id. at 7.) He also pointed out
that the substances found in his car were not
government's sentencing position asked the district court
to sentence Mr. Aragon to 37 months' imprisonment,
"the high end of the advisory guideline range as
calculated by the parties in the Plea Agreement."
(Id. at 34.) The government observed that the
substances found in Mr. Aragon's car, unlike the heroin
from the controlled buys, "w[ere] not field tested and
w[ere] not sent to the laboratory for formal testing."
(Id.) Moreover, the government explained that the
substances found in the car were not laboratory tested
because Mr. Aragon had quickly indicated his intent to
resolve the case, which prompted the government to cease its
district court began the March 2018 sentencing hearing by
reviewing the history of the case as to how the court learned
about the additional drugs and how Mr. Aragon's case fit
in with others from the same investigation. Upon prompting by
the court, defense counsel clarified that Mr. Aragon's
objection to the PSR was "a legal objection based upon
the . . . sufficiency of the evidence." (Appellant's
App. Vol. III at 69.)
district court overruled the objection, citing the PSR's
conclusion that there was heroin and methamphetamine in the
car; the case agent's statement to the probation
department that there were additional drugs in the car; the
photographs of the suspected drugs, cash, and digital scale;
Mr. Aragon's criminal history involving heroin; and the
records of Mr. Aragon's jail phone calls in which he
stated, "I had some perks, a little bit of soft ready,
B, and like a zip of clear and hard." (Id. at
74.) The judge then went on to address the quantities of the
drugs, acknowledging that the weights given were gross
weights and deducting half a gram for the packaging of the
heroin and the methamphetamine.
the district court concluded that Mr. Aragon was responsible
for 24.8 and 49.8 grams of heroin from the two controlled
buys, plus 11 grams of heroin and 28.5 grams of
methamphetamine found in the car. The judge calculated this
as having a marijuana equivalency of 142.6 grams, making Mr.
Aragon's offense level 24. The judge also stated,
"[E]ven if these drugs were in a hefty bag, you would
still be in the same guideline range, because we're
basically 40 kilograms of marijuana above the floor."
(Id. at 76.) Defense counsel objected to "the
process" the court used here, ...