During the investigation of another individual, police obtained a warrant for Traquevis Hardy’s Facebook profile and found messages about certain prices, quantities, and logistics of obtaining fentanyl. Officers later arrested Hardy with nine fentanyl pills. A grand jury indicted Hardy for conspiracy to distribute at least 40 grams of fentanyl under 21 U.S.C. §§ 846 and 841(b)(1)(B). A jury convicted him, and the district court imposed a 168-month sentence.
Hardy raised three issues on appeal: (1) that his due process rights were violated when the district court ruled based on co-conspirator statements at an in-chambers conference without him present, (2) that the court plainly erred by admitting Rule 404(b) evidence of his possession of nine fentanyl pills after the conspiracy period, and (3) that the district court clearly erred by relying on unreliable hearsay to attribute 1,210 grams of fentanyl (out of 1,773 grams total) to him during sentencing.
The panel rejected the first two claims. Hardy was present for the James hearing (where the court heard arguments on the admissibility of the co-conspirator statements) and had the opportunity to cross-examine the investigating officer. The court heard no additional arguments at the in-chambers conference, where it ruled on the issue, and Hardy’s presence “would not have contributed to the fairness of the proceeding.” Likewise, any error in admitting the 404(b) evidence was harmless because there was overwhelming trial evidence of Hardy’s distribution activities, even if the grounds for admissibility were questionable.
Regarding the defendant’s sentencing, however, the court found clear error. The record undermined the Presentence Report and the district court’s heavy reliance on a confidential source’s hearsay statement that Hardy supplied 100 fentanyl pills every two or three days for a year. The panel remanded for resentencing without the 1,210 grams attributed to him by the confidential source, which lowers Hardy’s base offense level from 32 to 30 and reduces his advisory Guidelines range.
The Tenth Circuit affirmed the conviction for conspiracy to distribute at least 40 grams of fentanyl but vacated the sentence and remanded for resentencing.
Appeal from the District of Wyoming.
Opinion by Matheson, joined by Hartz and Bacharach.