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United States v. Aragon

United States Court of Appeals, Tenth Circuit

April 29, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
LEONARD ARAGON, Defendant-Appellant.

          Appeal from the United States District Court for the District of Colorado (D.C. No. 1:17-CR-00324-RM-1)

          Josh 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.

          Before HOLMES, McKAY, and KELLY, Circuit Judges.


         Leonard 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 remand.[1]


         In 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.

         The 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.)

         Later 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.)

         The 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.)

         In 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 cell phone.

         These 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.

         The 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' imprisonment.

         Mr. 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 laboratory-tested.

         The 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 investigation.

         The 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.)

         The 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.[2]

         Accordingly, 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, ...

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