                                                                                 FILED
                                                                     United States Court of Appeals
                                      PUBLISH                                Tenth Circuit

                      UNITED STATES COURT OF APPEALS                         April 29, 2019

                                                                         Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                            Clerk of Court
                        _________________________________

 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                          No. 18-1121

 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.
                  _________________________________

McKAY, Circuit Judge.
                        _________________________________

      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

                                            I.

      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



      1
        Although Mr. Aragon’s opening brief on appeal also challenged his sentence
under Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure, Mr. Aragon
expressly withdrew that argument in his reply brief. Therefore, we do not address it.
See United States v. Camick, 796 F.3d 1206, 1213 n.4 (10th Cir. 2015) (declining to
address claims withdrawn before oral argument).
                                            2
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

                                           3
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,

                                            4
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

                                            5
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




                                             6
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, including relying on the photographs to determine the identity of the

substances and how much they and their packaging weighed. (Id. at 77.)

      Ultimately, the district court sentenced Mr. Aragon to 48 months’

imprisonment after finding that his total offense level was 21. Mr. Aragon appealed.

                                          II.

      “[I]n considering the district court’s application of the Guidelines, we review

factual findings for clear error and legal determinations de novo.” United States v.

Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006). “A sentence cannot . . . be considered

reasonable if the manner in which it was determined was unreasonable, i.e., if it was



      2
        The district court disregarded the pills and cocaine as being “more
consistent . . . with personal-use quantities than with distribution quantities.”
(Appellant’s App. Vol. III at 76.) The court also appears to have disregarded a much
smaller package of suspected methamphetamine listed in Officer Mathews’
inventory.
                                          7
based on an improper determination of the applicable Guidelines range.” Id. at 1055.

“The government has the burden of proof and production during the sentencing

hearing to establish the amounts and types of controlled substances related to the

offense . . . by a preponderance of the evidence.” United States v. Deninno, 29 F.3d

572, 580 (10th Cir. 1994).

       We begin by addressing Mr. Aragon’s contention that the district court

improperly presented evidence at sentencing. Mr. Aragon acknowledges that a

sentencing judge may call witnesses and elicit testimony “as part of [his] obligation

to gather information relevant to the sentencing determination,” United States v.

Scott, 529 F.3d 1290, 1298 (10th Cir. 2008). As we have previously recognized,

“[t]he [sentencing] judge remains ultimately responsible for determining the facts and

must establish the relevant facts even if all the parties argue to the contrary.” United

States v. Garcia, 78 F.3d 1457, 1462 n.6 (10th Cir. 1996). The district court’s

exercise of its power to elicit and establish the relevant facts at sentencing is

nevertheless subject to abuse-of-discretion review. Scott, 529 F.3d at 1299.

       Mr. Aragon makes three arguments in support of his assertion that the district

court abused its discretion here. First, he claims that “the judge’s actions in this case

rested upon an arbitrary or clearly erroneous understanding of the conduct of counsel

for the parties,” specifically the judge’s belief that the parties had intentionally

concealed the additional drugs in order to predetermine the guideline range.

(Appellant’s Br. at 50.) Even were we to agree that the judge clearly erred in his

understanding of the parties’ actions, Mr. Aragon has identified no authority

                                             8
indicating that a judge abuses his discretion to gather additional evidence when the

judge believes such evidence is necessary for the wrong reason. The sentencing

judge “must establish the relevant facts,” Garcia, 78 F.3d at 1462 n.6, and we see no

reason to second-guess the district court’s determination that additional evidence was

needed to do so in this case.

      Second, Mr. Aragon argues that “taking action sua sponte is only appropriate

when the right result is ‘certain’ rather than ‘debatable.’” (Appellant’s Br. at 50

(quoting United States v. Holly, 488 F.3d 1298, 1308 (10th Cir. 2007)).) The

“certain” versus “debatable” language from Holly was used in the dissimilar context

of the appellate court’s analysis of whether to engage in harmless error review sua

sponte on appeal. See 488 F.3d at 1308. The only other case Mr. Aragon has cited as

considering this distinction is Fogle v. Pierson, 435 F.3d 1252, 1258 (10th Cir.

2006), which addressed the district court’s ability to dismiss a complaint sua sponte

based on an affirmative defense such as the statute of limitations. He has identified

no authority for extending any certain-versus-debatable principle to a judge’s ability

to elicit his own evidence at sentencing. Nor would such a rule make sense.

Mr. Aragon conflates the issue of eliciting evidence with that of accepting its

sufficiency. A judge who sua sponte gathers and elicits additional evidence may

very well not know what that evidence will show until it has been produced.

      Third, Mr. Aragon contends that “the particular actions of the judge in this

particular case posed an unacceptable risk that Mr. Aragon would perceive him as an

advocate, rather than as an impartial arbiter.” (Appellant’s Br. at 51.) We agree with

                                           9
Mr. Aragon that a judge who elicits his own evidence “‘must take care not to create

the appearance that he or she is less than totally impartial,’” Scott, 529 F.3d at 1299

(quoting United States v. Albers, 93 F.3d 1469, 1485 (10th Cir. 1996)). In analyzing

this issue, however, we again believe it is necessary to distinguish the issue of how

the judge elicits the evidence from that of whether the judge correctly concluded the

evidence presented was sufficient. A judge’s acceptance of evidence as sufficient

proof may constitute error, but it does not of necessity demonstrate partiality.

      On the issue of partiality, Mr. Aragon states that “the judge made comments at

sentencing that an objective observer might view as suggesting a special solicitude

toward law enforcement,” (Appellant’s Br. at 51), pointing to the judge’s quotation

of a statement made by “an individual, whom [he’d] known for years, whom [he]

respect[ed] tremendously, and whom [he] trust[ed] implicitly,” about “hell . . .

coming to breakfast” for people who “bring poison and violence into the

community,” (Appellant’s App. Vol. III at 58–59). Mr. Aragon also claims that “the

judge evinced not just objective disagreement with, but personal hostility to, defense

counsel’s position,” citing several statements by the judge expressing his

disagreement and frustration. (Appellant’s Br. at 52.) Finally, Mr. Aragon asserts

that “the sentencing transcript reveals that the judge’s sua sponte conduct was so

extensive that the majority of the hearing consisted of the judge berating counsel,

presenting and explaining evidence that he had presented, and making his own

arguments against the disposition to which the parties agreed.” (Id. at 53.)



                                           10
      These contentions are largely tangential to the judge’s authority and decision

to elicit his own evidence at sentencing. The government points out that the quoted

“individual” whom the judge said he “trust[ed] implicitly” was not identified as

anyone connected with the case. Moreover, it is clear from the context that the judge

quoted this individual only to make a rhetorical point, not for any evidentiary

purpose. Furthermore, the judge did not abuse his discretion to elicit his own

evidence by expressing his frustration with what he perceived to be the parties’

attempt at “artificially causing the guidelines to come out to a particular place where

they th[ought] the sentence should be and withholding . . . information that suggests a

different guideline outcome,” (Appellant’s App. Vol. III at 55). Nor did the judge

abuse his discretion by explaining why he was giving a sentence within the guideline

range he concluded the evidence supported as opposed to the 37 months the parties

requested.

      We additionally note that the judge made multiple statements to Mr. Aragon

reassuring him that the manner in which the additional evidence was uncovered

would not impact his sentence. Specifically, when the judge reset the change of plea

hearing because the initial agreement had not indicated whether the government

could later charge Mr. Aragon for the contraband found in his car, the judge told

Mr. Aragon, “I have no animosity towards you and nothing going on here is being

viewed as something negative as to you. I just think that there’s more going on than

I’m being told, and I insist on being told what’s going on.” (Id. at 19.) Also, before

issuing the sentence, the judge stated, “[T]he discussion that we’ve had previously,

                                          11
about how the matter ultimately c[a]me to be presented to me, has no impact,

whatsoever, on anything that I’m going to do by way of a sentence.” (Id. at 96.) In

the end, the sentencing judge is “responsible for determining the facts and must

establish the relevant facts even if all the parties argue to the contrary.” Garcia, 78

F.3d at 1462 n.6. We cannot conclude in this case that the judge abused his

discretion to elicit his own evidence at sentencing.

      We turn now to whether the district court’s conclusions as to the identity and

weight of the substances found in Mr. Aragon’s car were supported by sufficient

evidence, beginning with the court’s quantity findings. We review the court’s

“determination of the quantity of drugs for which the defendant is held accountable

under the Guidelines for clear error.” United States v. Todd, 515 F.3d 1128, 1135

(10th Cir. 2008). “Drug quantities employed by the district court to calculate the

applicable Guidelines range may be said to be clearly erroneous only when ‘the

district court’s finding was without factual support in the record or we are left with

the definite and firm conviction that a mistake has been made.’” Id. (quoting United

States v. Dalton, 409 F.3d 1247, 1251 (10th Cir. 2005)). Although estimates are not

forbidden, “the ‘need to estimate drug quantities at times is not a license to calculate

drug quantities by guesswork.’” Dalton, 409 F.3d at 1251 (quoting United States v.

Richards, 27 F.3d 465, 469 (10th Cir. 1994)). Moreover, “‘when choosing between a

number of plausible estimates of drug quantity, none of which is more likely than not

the correct quantity, a court must err on the side of caution.’” Richards, 27 F.3d at



                                           12
469 (quoting United States v. Ortiz, 993 F.2d 204, 208 (10th Cir. 1993)) (alteration

omitted).

      Here, the district court had two pieces of evidence speaking to the weight of

the substances found in Mr. Aragon’s car: (1) Officer Mathews’ inventory of the

car’s contents listing the packaged weights of the suspected drugs, and (2) the

photographs of the suspected drugs in their packaging, which the judge initialed to

assist us in our review. The record contains additional photographs of these drugs,

two of which appear to show that one was originally found in additional packaging

not present in the photograph the judge initialed.3 Nothing in the record indicates

whether any packaging was removed prior to the substance being weighed.

      Mr. Aragon first questions the reliability of the packaged weights reported by

Officer Mathews in his inventory of the car’s contents, questioning whether a scale

was used at all and, if one was used, whether it was properly calibrated and whether

it measured the weight in grams or some other unit necessitating conversion. Here,

Mr. Aragon cites to United States v. Higgins, 282 F.3d 1261, 1279–81 (10th Cir.

2002), in which we found unreliable a chemist’s conclusion about how much

methamphetamine could have been produced when “[a]n unidentified officer on the

scene had estimated that one coffee filter contained about 100 grams and the other


      3
         The substance in this package was white, as were other substances found in
Mr. Aragon’s car. We note that, although the white substance in the photograph the
judge initialed appears to be in crystalline form, nothing in the photograph clearly
identifies it as the large package of methamphetamine as opposed to the smaller
package of methamphetamine the judge disregarded or one of the packages of
cocaine.
                                          13
about 150 grams” of pseudoephedrine. We, however, find Higgins distinguishable.

As the government points out, the precise weights listed in Officer Mathews’

inventory indicate that he in fact weighed the substances using a scale. Additionally,

although Mr. Aragon’s concerns about calibration and units could perhaps create

reasonable doubt at trial, the sentencing judge was only required to find the weights

by a preponderance of the evidence. See Deninno, 29 F.3d at 580. Their packaged

weights were so proven.

      Mr. Aragon next argues the district court’s conclusion that the packaging

weighed half a gram was clearly erroneous. He points out that there was no

testimony as to the weight of plastic baggies, citing to State v. Wallace, 910 P.2d

695, 730 (Haw. 1996), in which an officer testified that in his experience ziplock

baggies weighed between 3 and 5 grams. Mr. Aragon also notes that the record does

not show whether the substances were weighed in their full packaging or in the

lighter packaging shown in the photographs the judge initialed. Finally, Mr. Aragon

contends that the photographs show “plastic wrapping . . . so thick that it is

impossible to tell how much of what was weighed represents the suspected drugs and

how much represents the packaging material.” (Appellant’s Br. at 36.)

      In Dalton, we observed that “the ‘need to estimate drug quantities at times is

not a license to calculate drug quantities by guesswork.’” 409 F.3d at 1251 (quoting

Richards, 27 F.3d at 469). Guesswork seems an apt description of the district court’s

half-a-gram figure here. Furthermore, we agree with Mr. Aragon that the

photographs in this case provide a poor basis for determining how much of the gross

                                           14
weights is attributable to the substances themselves and how much is attributable to

the packaging. As in Higgins, “there was no scientific basis for estimating quantity

from appearance.” 282 F.3d at 1281.

      On appeal, the government makes a harmless-error argument that Mr. Aragon

would still have had a base offense level of 24 even if the packaging of the heroin

and methamphetamine found in his car weighed 11 grams each. Mr. Aragon

responds by citing to several cases in which the difference between gross and net

weight was dramatic. See, e.g., United States v. Padilla, No. 92-2023, 1993 WL

12667, at *2 (10th Cir. Jan. 20, 1993) (“28.2 gross grams of heroin were involved in

the unindicted transaction and . . . analysis of the heroin reflected a net weight of 3.8

grams.”); United States v. Davis, Nos. H-01-867 & H-05-1147, 2006 WL 2670977, at

*4 (S.D. Tex. Sept. 15, 2006) (“The approximate gross weight was 27.3 grams. Lab

tests were conclusive for the presence of cocaine base with a net weight of 2.0

grams.”); United States v. One 1985 BMW 318i, VIN WBAAC8401F0685314, 696 F.

Supp. 336, 338 n.8 (N.D. Ill. 1988) (“[T]here was a great disparity between the gross

(23.45 grams) and net (.037 gram) weight of the drugs . . . .”). He also argues that

the white substance cannot be seen clearly through the packaging in the photographs

and “[t]here is no way to tell whether . . . the drugs were additionally wrapped in

aluminum foil, beneath the plastic—which is a common way that drugs are

packaged.” (Appellant’s Reply Br. at 16 n.7 (citing to United States v. Rzeslawski,

No. 91-50866, 1992 WL 379411, at *4 (9th Cir. Dec. 17, 1992)).)



                                           15
      We agree that the government has not shown harmless error. Although the

suspected heroin appears to be wrapped in light packaging, the same cannot be said

for the suspected methamphetamine. Even adding all 11.5 grams of heroin to the

amounts from the controlled buys would require more than 7 grams of

methamphetamine to make Mr. Aragon’s offense level 24 as the district court found.

See 21 U.S.C. § 841(b)(1)(A)(i), (vii), (viii); U.S.S.G. § 2D1.1(c)(8). In light of the

great disparities between gross and net weights in other cases, however, we cannot

conclude that the photographs here provided even “a minimum indicia of reliability,”

Deninno, 29 F.3d at 578, that the net weights would necessarily put Mr. Aragon

above the threshold for base offense level 24.

      We note that nothing in our opinion should be construed as creating a rule of

law that drugs must be weighed by a laboratory in order to be used at sentencing. For

example, testimony about the weight of commonly used packages, when combined

with testimony as to the types and quantities of packaging materials used in a specific

instance, would arguably constitute a sufficiently reliable means for estimating a

substance’s net weight from its packaged weight. Of course, the best evidence of net

weight is net weight itself, but we are not here suggesting that packaged weight can

never be used to estimate net weight. We only hold that the evidence in this case was

insufficient to support the district court’s sentencing decision.

      Mr. Aragon requests that we remand for resentencing based on the existing

record, citing United States v. Thomas, 749 F.3d 1302, 1315–16 (10th Cir. 2014).

“[A] remand for resentencing generally allows the district court to conduct de novo

                                           16
review,” but we have discretion to order resentencing on the existing record. United

States v. Forsythe, 437 F.3d 960, 963 (10th Cir. 2005). We decline to exercise that

discretion here. Under the particular circumstances of this case, we see no need to

foreclose evidentiary development on remand. Moreover, because remand is

warranted on the drug quantity issue, we need not address Mr. Aragon’s argument

that there was also insufficient evidence to establish that the substances found in his

car were in fact methamphetamine and heroin. Given that the record may be more

fully developed on remand, we decline to address whether the substances could be

identified merely by their appearance in conjunction with Mr. Aragon’s criminal

history and jail phone calls. See E.E.O.C. v. Beverage Distribs. Co., LLC, 780 F.3d

1018, 1022 (10th Cir. 2015) (declining to address sufficiency of mitigation evidence

when remanding because of erroneous jury instruction, observing, “The sufficiency

of the evidence entails a fact-intensive inquiry, and the mitigation evidence may be

different on remand.”).

      Lastly, Mr. Aragon requests that we direct reassignment to a different judge on

remand. “Respectful of the extraordinary nature of such a request, we will remand

with instructions for assignment of a different judge only when there is proof of

personal bias or under extreme circumstances.” Mitchell v. Maynard, 80 F.3d 1433,

1448 (10th Cir. 1996). “[I]n the absence of personal bias,” the necessity for

reassignment depends upon consideration of three factors:

             ‘(1) whether the original judge would reasonably be
             expected upon remand to have substantial difficulty in
             putting out of his or her mind previously-expressed views

                                           17
             or findings determined to be erroneous or based on evidence
             that must be rejected, (2) whether reassignment is advisable
             to preserve the appearance of justice, and (3) whether
             reassignment would entail waste and duplication out of
             proportion to any gain in preserving the appearance of
             fairness.’

Id. at 1450 (quoting United States v. Sears, Roebuck & Co., Inc., 785 F.2d 777, 780

(9th Cir. 1986)).

      Mr. Aragon does not contend that the sentencing judge had any personal bias

against him, but he does assert that “the circumstances suggest a reasonable

likelihood that the judge would have difficulty on remand putting out of his mind his

firm views that counsel had deceived him and that Mr. Aragon should be sentenced

based on the suspected drugs found in his car.” (Appellant’s Br. at 54.) We are not

so convinced. The judge gave defense counsel the opportunity to make a record of

Mr. Aragon’s objection to the court’s calculation of the base offense level and even

initialed the photographs on which he relied so that they would “be available for the

Circuit for [its] review.” (Appellant’s App. Vol. III at 81.) As noted earlier, the

judge also made a point of emphasizing that he would not let the way in which he

learned about the additional drugs affect his sentencing decision. Nothing in the

record suggests that the judge would be unable or unwilling to set aside the additional

drugs in accordance with our conclusion that their net weights were not proven by a

preponderance of the evidence. We therefore decline to reassign the case on remand.




                                           18
                                        III.

      For the foregoing reasons, we VACATE Mr. Aragon’s sentence and

REMAND his case to the district court for resentencing consistent with this opinion.




                                         19
No. 18-1121, United States v. Aragon.

HOLMES, J., concurring.

       I join in full the principal opinion but write separately to underscore the legal and

ethical impropriety of the form of plea bargaining that the district court perceived

(correctly or not) to be at work in this case.

       As I understand the principal opinion, it resolves the case in part by assuming that

the district court clearly erred in finding that the parties—in order to arrive at what they

viewed as a fair sentence—intentionally concealed from the court, as part of their plea

bargain, a quantity of drugs that reasonably could be deemed to qualify as relevant

conduct. See Slip Op. at 8–9 (“Even were we to agree that the judge clearly erred in his

understanding of the parties’ actions . . . .”). After granting Mr. Aragon that assumption,

the principal opinion concludes that his allegations that the district court abused its

discretion in gathering evidence are nevertheless without merit. Id.

       I am content with that assumption and will not opine here on whether the parties in

fact struck a plea bargain that involved intentionally concealing evidence. But I write to

emphatically underscore that any such agreement would be improper; such an agreement

would undercut the district court’s ability to perform its role in the sentencing framework

contemplated by the United States Sentencing Commission Guidelines (hereinafter

“Guidelines” or “U.S.S.G.”) and would also violate counsel’s ethical duty of candor to

the tribunal.

       More specifically, it is the district court’s role to properly calculate a Guidelines
range, with the ultimate goal of crafting a fair sentence. See, e.g., Gall v. United States,

552 U.S. 38, 49 (2007) (“[A] district court should begin all sentencing proceedings by

correctly calculating the applicable Guidelines range.”); United States v. DeWitt, 366 F.3d

667, 671 (8th Cir. 2004) (“[T]he sentencing guidelines require the district court

independently to evaluate the evidence when imposing a sentence.”). It is thus not for the

parties to determine what Guidelines range should govern a case and what sentence is

fair.

        To be sure, with respect to the category of plea agreement at issue here, parties

may enter into stipulations reflecting their understanding of certain factual matters or the

applicability (or lack thereof) of certain Guidelines criteria. See FED. R. CRIM. P.

11(c)(1)(B). Significantly, however, those stipulations are not binding on the sentencing

court. U.S.S.G. § 6B1.4(d), p.s. (2016)1 (“The court is not bound by [a] stipulation, but

may with the aid of the presentence report, determine the facts relevant to sentencing.”).2

        1
              The Probation Office used the 2016 edition of the Guidelines in
calculating Mr. Aragon’s sentence. Neither party questions this choice on appeal;
therefore, I also rely on the 2016 edition where the Guidelines are relevant to my
analysis herein.
        2
              Indeed, even when—unlike here—parties enter into the sort of plea
agreement that ordinarily binds the court to a specific sentence or sentencing
range, the court is bound only after it accepts the agreement. And, upon
presentation, the court has broad discretion to reject such a plea agreement if
(among other things) the court considers the agreement to be unfair. See F ED . R.
C RIM . P. 11(c)(1)(C), (c)(5); see also F ED . R. C RIM . P. 11(e) advisory committee’s
note to 1999 amendment (noting as to (in material respects) substantively
identical text of a precursor of Rule 11(c) that “the court retains absolute
                                                                            (continued...)

                                              2
       More broadly, parties may freely offer their views on a just and fair sentence and

advocate for that view. See, e.g., Gall, 552 U.S. at 49–50 (instructing that district courts

should “giv[e] both parties an opportunity to argue for whatever sentence they deem

appropriate”). In particular, as relevant here, the government, the defense, or both, may

argue in a given case that certain evidence that might reasonably appear to qualify as

relevant conduct does not so qualify upon closer analysis. See, e.g., United States v.

Franco-Lopez, 312 F.3d 984, 993 (9th Cir. 2002) (noting that the government “provid[ed]

information to the Probation Department regarding” a defendant’s arguably relevant

conduct “while recommending successfully to the district court that it not rely on that

information in sentencing”); see also U.S.S.G. § 6B1.4, p.s., cmt. (“[T]he parties should

fully disclose the actual facts and then explain to the court the reasons why the disposition

of the case should differ from that which such facts ordinarily would require under the

guidelines.”).

       But none of this alters the bottom line: it is the district court’s job (in the first

instance)—not the parties’—to determine the proper Guidelines range for a particular


       2
        (...continued)
discretion whether to accept a plea agreement”); United States v. White, 765 F.3d
1240, 1248 (10th Cir. 2014) (“Rule 11(c)(1)(C) permits the defendant and the
prosecutor to agree that a specific sentence is appropriate, but that agreement
does not discharge the district court’s independent obligation to exercise its
discretion.” (quoting Freeman v. United States, 564 U.S. 522, 529 (plurality
opinion))); United States v. Kling, 516 F.3d 702, 704 (8th Cir. 2008) (“Courts are
not obligated to accept [Rule 11(c)(1)(C)] plea agreements and have discretion to
reject those which are deemed involuntary or unfair.”).

                                                3
defendant and to relatedly determine what sentence is fair. See U.S.S.G. § 6B

introductory cmt. (“These policy statements [concerning plea agreements] make clear that

sentencing is a judicial function and that the appropriate sentence in a guilty plea case is

to be determined by the judge.”); see also 18 U.S.C. § 3661 (“No limitation shall be

placed on the information concerning the background, character, and conduct of a person

convicted of an offense which a court of the United States may receive and consider for

the purpose of imposing an appropriate sentence.”); Wasman v. United States, 468 U.S.

559, 563 (1984) (“The sentencing court . . . must be permitted to consider any and all

information that reasonably might bear on the proper sentence for the particular defendant

. . . .”).

             And relevant conduct is a critical, foundational component of the computation of a

proper Guidelines range—and, consequently, of a fair sentence. See, e.g.,

Molina-Martinez v. United States, 578 U.S. ----, 136 S. Ct. 1338, 1345 (2016) (“The

Court has made clear that the Guidelines are to be the sentencing court’s ‘starting point

and . . . initial benchmark.’” (omission in original) (quoting Gall, 552 U.S. at 49)); Witte

v. United States, 515 U.S. 389, 393 (1995) (“Under the Sentencing Guidelines, the

sentencing range for a particular offense is determined on the basis of all ‘relevant

conduct’ in which the defendant was engaged and not just with regard to the conduct

underlying the offense of conviction.” (quoting U.S.S.G. § 1B1.3)); see also United States

v. Gill, 348 F.3d 147, 149 (6th Cir. 2003) (“A key ingredient of the sentencing formula in


                                                  4
drug cases is the quantity of a controlled substance for which a convicted defendant will

be held accountable. A defendant is responsible for all drug quantities that are included

within the scope of his ‘relevant conduct,’ as that term is defined by the United States

Sentencing Guidelines Manual.”). Thus, it ineluctably follows that a sentencing court

cannot perform its job of computing a proper Guidelines range and determining a fair

sentence without an accurate picture of relevant conduct. See United States v. Siegelman,

786 F.3d 1322, 1332 (11th Cir. 2015) (Ebel, J., sitting by designation) (“[A] district

court’s sentencing range is not accurate unless its relevant-conduct findings are also

accurate.”).

       Parties therefore improperly undercut the sentencing court’s role under the

Guidelines when, in order to artificially produce a desired Guidelines range and reach a

sentence they perceive to be fair, they agree to intentionally withhold from the court’s

consideration evidence that reasonably could be deemed to qualify as relevant conduct.

See United States v. Johnson, 973 F.2d 857, 860 (10th Cir. 1992) (“[A]n agreement to

keep the judge ignorant of pertinent information cannot be enforceable, because a

sentencing court ‘must be permitted to consider any and all information that might

reasonably bear on the proper sentence for the particular defendant, given the crime

committed.’” (quoting United States v. Jimenez, 928 F.2d 356, 363 (10th Cir. 1991)));

U.S.S.G. § 6B1.4, p.s., cmt. (“[I]t is not appropriate for the parties to stipulate to

misleading or non-existent facts, even when both parties are willing to assume the


                                               5
existence of such ‘facts’ for purposes of the litigation.”); see also United States v.

Casillas, 853 F.3d 215, 218 (5th Cir.) (“[T]he Government does not have a right . . . to

withhold relevant factual information from the court.” (quoting United States v. Block,

660 F.2d 1086, 1092 (5th Cir. 1981))), cert. denied, 138 S. Ct. 205 (2017); United States

v. Ahn, 231 F.3d 26, 38 (D.C. Cir. 2000) (“At [the] sentencing hearing, the Government

had a duty to provide relevant information about whether [the defendant] obstructed

justice, even though it had agreed not to take a stand on whether he should receive a

sentence enhancement.”); cf. U.S. Dep’t of Justice, JUSTICE MANUAL § 9-27.710 (2019)

(“During the sentencing phase of a federal criminal case, the attorney for the government

should assist the sentencing court by . . . [a]ttempting to ensure that the relevant facts and

sentencing factors, as applied to the facts, are brought to the court’s attention fully and

accurately . . . .” (emphasis added)).

       And, in crafting such an artificial Guidelines outcome, the parties also would be

violating their ethical obligation of candor to the sentencing tribunal, which relies on the

accuracy of relevant conduct in fashioning a proper Guidelines sentence. See Jimenez,

928 F.2d at 363 (“It is clear that the fact that a plea agreement has been entered into

between the government and a defendant cannot alone prohibit the government from

bringing relevant information to the attention of the trial judge at the time of sentencing.

In fact, the prosecutor has an ethical duty to disclose such information . . . .” (emphasis

added) (citation omitted)); see also United States v. Almonte-Nunez, 771 F.3d 84, 86 (1st


                                              6
Cir. 2014) (“[A]ttorneys, as officers of the court, remain bound by their . . . duty to

provide full and accurate information about the offense and the offender to the sentencing

court.”); cf. MODEL RULES OF PROF’L CONDUCT r. 3.3(a)(1) (AM. BAR ASS’N 2015) (“A

lawyer shall not knowingly . . . make a false statement of fact or law to a tribunal or fail to

correct a false statement of material fact or law previously made to the tribunal by the

lawyer . . . .”); id. cmt. 3 (“There are circumstances where failure to make a disclosure is

the equivalent of an affirmative misrepresentation.” (emphasis added)).

       In conclusion, I reiterate that I do not opine on the propriety of counsel’s actions in

this case. Rather, I am content to accept the principal opinion’s assumption that the

district court was clearly erroneous in finding that the parties, in reaching their plea

bargain, intentionally concealed from the court a quantity of drugs that reasonably could

be viewed as relevant conduct in order to arrive at what the parties perceived to be a fair

sentence. I write simply to state without equivocation—but hypothetically—that if

counsel were to participate in such a plea bargain, they would be engaging in legally and

ethically improper conduct. On this basis, I respectfully concur.




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