Appellate Case: 24-8006 Document: 95-1 Date Filed: 08/12/2025 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS August 12, 2025
Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 24-8006
TRAQUEVIS DEWAYNE HARDY,
Defendant - Appellant. _________________________________
Appeal from the United States District Court for the District of Wyoming (D.C. No. 2:23-CR-00053-SWS-1) _________________________________
Robert T. Fishman, Ridley, McGreevy & Winocur, PC, Denver, Colorado, appearing for Appellant.
Paige N. Hammer, Assistant United States Attorney (Stephanie I. Sprecher, Acting United States Attorney, with her on the brief), Office of the United States Attorney for the District of Wyoming, appearing for Appellee. _________________________________
Before HARTZ, MATHESON, and BACHARACH, Circuit Judges. _________________________________
MATHESON, Circuit Judge. _________________________________
A jury convicted Traquevis Dewayne Hardy of conspiracy to distribute at least
40 grams of fentanyl. The district court sentenced him to 168 months in prison.
Mr. Hardy appeals his conviction and sentence. He argues the district court erred at Appellate Case: 24-8006 Document: 95-1 Date Filed: 08/12/2025 Page: 2
(1) an in-chambers conference by announcing an evidentiary ruling in his absence and thus denying his due process right to be present;
(2) trial by admitting evidence under Federal Rule of Evidence 404(b); and
(3) sentencing, by relying on uncorroborated hearsay to calculate the drug quantity attributable to him under the United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”).
Exercising jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we affirm
Mr. Hardy’s conviction, vacate his sentence, and remand for resentencing.
I. BACKGROUND
A. Factual History
On October 25, 2022, Cheyenne Police Department officers received a call about
a man who appeared to be unconscious in a vehicle. The officers responded and
arrested Derek Ascherin after finding drug paraphernalia and 23.87 grams of suspected
fentanyl pills on his person and in his car.
During his investigation of Mr. Ascherin, Drug Enforcement Administration
Task Force Officer Craig Sanne suspected Mr. Hardy was supplying Mr. Ascherin with
fentanyl. After obtaining a search warrant to inspect Mr. Hardy’s Facebook profile for
the period between July and December 2022, he found messages between Mr. Hardy
and others about the availability, price, quantity, and logistics of obtaining fentanyl.
On April 15, 2023, officers responded to a call about suspected drug use in a
vehicle. They found Mr. Hardy in the front passenger seat and arrested him on an active
arrest warrant. The officers found nine fentanyl pills on and around his seat.
2 Appellate Case: 24-8006 Document: 95-1 Date Filed: 08/12/2025 Page: 3
B. Procedural History
A grand jury in the District of Wyoming indicted Mr. Hardy on one count of
conspiracy to distribute at least 40 grams of fentanyl between July 1, 2022, and
December 29, 2022, in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(B). After a
three-day trial, a jury found Mr. Hardy guilty.
At sentencing, the district court found that Mr. Hardy was responsible for
1,773 grams of fentanyl and imposed a 168-month sentence. The court overruled
Mr. Hardy’s objection that the drug quantity calculation was based in part on unreliable
hearsay.
Mr. Hardy timely appealed.
We provide additional procedural details later as relevant to the issues on appeal.
II. DISCUSSION
On appeal, Mr. Hardy argues the district court:
(A) Plainly erred in denying his due process right to be present at a critical stage of the proceedings when it ruled on the admissibility of alleged coconspirator statements in his absence;
(B) Plainly erred in admitting evidence under Rule 404(b) that he possessed user-amounts of fentanyl when arrested on April 15, 2023; and
(C) Clearly erred in relying on unreliable hearsay to calculate the total drug quantity attributable to him for sentencing purposes.
We reject Mr. Hardy’s first and second arguments and affirm his conviction. On
the third argument, we vacate his sentence and remand for resentencing.
3 Appellate Case: 24-8006 Document: 95-1 Date Filed: 08/12/2025 Page: 4
A. Absence from the James Hearing Ruling
Mr. Hardy argues that his absence from the district court chambers conference
announcing the pretrial ruling on the admissibility of coconspirator statements violated
due process. Because he did not object in the district court on this ground, we review for
plain error. United States v. Flechs, 98 F.4th 1235, 1252 (10th Cir. 2024). He must show
plain error “even when the underlying error is constitutional.” United States v.
Gonzalez-Huerta, 403 F.3d 727, 733 (10th Cir. 2005) (en banc). We discern no error, let
alone plain error.
Standard of Review
To establish plain error, the defendant must show “(1) an error occurred; (2) the
error was plain; (3) the error affected . . . [his] substantial rights; and (4) the error
seriously affected the fairness, integrity, or public reputation of a judicial proceeding.”
United States v. Kee, 129 F.4th 1249, 1252 (10th Cir. 2025) (quoting United States v.
Wolfname, 835 F.3d 1214, 1217 (10th Cir. 2016)).
An error is “plain” when it is “obvious” or “clear” under current, well-settled law.
United States v. Faunce, 66 F.4th 1244, 1253 (10th Cir. 2023) (quoting United States v.
Garcia, 946 F.3d 1191, 1201-02 (10th Cir. 2020)); United States v. Ibarra-Diaz, 805 F.3d
908, 929 (10th Cir. 2015), which generally requires on-point precedent from the
Supreme Court or the Tenth Circuit. United States v. Piper, 839 F.3d 1261, 1268
(10th Cir. 2016).
4 Appellate Case: 24-8006 Document: 95-1 Date Filed: 08/12/2025 Page: 5
Legal Background
a. Fifth Amendment
Under the Fifth Amendment, a criminal defendant has a “right to be present at a
proceeding ‘whenever his presence has a relation, reasonably substantial, to the fulness of
his opportunity to defend against the charge.’” United States v. Gagnon, 470 U.S. 522,
526 (1985) (quoting Snyder v. Massachusetts, 291 U.S. 97, 105-06 (1934)). “That is,
‘[t]he presence of a defendant is a condition of due process to the extent that a fair and
just hearing would be thwarted by his absence, and to that extent only.’” United States v.
Beierle, 810 F.3d 1193, 1198 (10th Cir. 2016) (alteration in original) (quoting Gagnon,
470 U.S. at 526). But “this privilege of presence is not guaranteed ‘when presence would
be useless, or the benefit but a shadow.’” Kentucky v. Stincer, 482 U.S. 730, 745 (1987)
(quoting Snyder, 291 U.S. at 106-07).
We have held “without qualification that a defendant had a constitutional right to
be present at summations, jury instructions, and the return of the jury verdict.” Larson v.
Tansy, 911 F.2d 392, 394 (10th Cir. 1990). But that right does not extend to proceedings
involving “purely legal issues,” such as a jury instruction conference, Beierle, 810 F.3d
at 1199; Larson, 911 F.2d at 395, or a conference to respond to a jury’s question on a
legal issue during deliberations, Esnault v. Colorado, 980 F.2d 1335, 1337 (10th Cir.
1992); see also United States v. Gonzalez, 596 F.3d 1228, 1243-44 (10th Cir. 2010). For
court conferences that “traditionally encompass[] purely legal issues, . . . it will be a rare
case where a defendant can establish that his presence was essential to his opportunity to
present his defense.” Larson, 911 F.2d at 395; see also Deschenes v. United States,
5 Appellate Case: 24-8006 Document: 95-1 Date Filed: 08/12/2025 Page: 6
224 F.2d 688, 693 (10th Cir. 1955) (“[T]he exclusion of a defendant . . . from the
courtroom during argument on a question of law does not violate defendant’s
constitutional right to be present at every step of the proceedings.”).
b. Coconspirator statements
Federal Rule of Evidence 801(d)(2)(E) provides that a statement “made by the
party’s coconspirator during and in furtherance of the conspiracy” is not hearsay if it is
offered against that party. “Before admitting evidence under this rule,” a court “must
determine that (1) by a preponderance of the evidence, a conspiracy existed, (2) the
declarant and the defendant were both members of the conspiracy, and (3) the statements
were made in the course of and in furtherance of the conspiracy.” United States v.
Owens, 70 F.3d 1118, 1123 (10th Cir. 1995) (quoting United States v. Urena, 27 F.3d
1487, 1490 (10th Cir. 1994)).
“A James hearing is a proceeding to determine the admissibility of a statement
made by a co-conspirator.” United States v. Garcia, 74 F.4th 1073, 1130 (10th Cir.
2023) (citing United States v. James, 590 F.2d 575 (5th Cir. 1979) (en banc)). “[T]he
preferred order of proof in determining the admissibility of coconspirator statements is
first for the district court to hold a James hearing ‘outside the presence of the jury to
determine by a preponderance of the evidence the existence of a predicate conspiracy.’”
United States v. Lopez-Gutierrez, 83 F.3d 1235, 1242 (10th Cir. 1996) (citation omitted)
(quoting Urena, 27 F.3d at 1491); United States v. Gonzalez-Montoya, 161 F.3d 643, 648
(10th Cir. 1998) (reiterating “our strong preference” for James hearings when the
prosecution relies on coconspirator statements).
6 Appellate Case: 24-8006 Document: 95-1 Date Filed: 08/12/2025 Page: 7
Additional Procedural History
Mr. Hardy moved for a James hearing and a pretrial determination on the
admissibility of alleged coconspirator statements under Rule 801(d)(2)(E).
On the Friday before trial, the district court held a James hearing. Mr. Hardy was
present. Officer Sanne testified about Facebook messages showing that alleged
coconspirators, including Mr. Ascherin, purchased fentanyl pills from Mr. Hardy to sell
to others.
After lengthy testimony about the messages, the district court asked the
Government to file a motion identifying the specific statements of third parties it believed
were admissible coconspirator statements. The court said it was concerned about
interdependence among the defendant and alleged coconspirators and how these
communications “were in the course of and in furtherance of the conspiracy [to distribute
fentanyl] as opposed to just a drug sale.” App., Vol. V at 162. It also asked for any
additional arguments regarding foundation and authentication for the Facebook messages.
The Government submitted its motion on Saturday. Mr. Hardy filed an opposition on
Sunday.
On Monday, the district court held an in-chambers conference without Mr. Hardy.
It ruled that (1) the Government presented sufficient evidence to link the Facebook
account to Mr. Hardy, (2) three individuals were coconspirators whose statements were
admissible under Rule 801(d)(2)(E) because they were made in furtherance of the
conspiracy, and (3) certain fentanyl purchasers were not coconspirators but their
statements were admissible under Rule 804(b)(3) as statements against Mr. Hardy’s
7 Appellate Case: 24-8006 Document: 95-1 Date Filed: 08/12/2025 Page: 8
interest. The parties did not make additional arguments at the conference, but the court
allowed them to ask clarifying questions about its rulings and to restate any objections for
the record.
Analysis
The district court did not err. Mr. Hardy was present at the James hearing,
including Officer Sanne’s testimony regarding the Facebook messages. His counsel
cross-examined Officer Sanne. Upon the court’s request, both the Government and
defense counsel submitted additional filings after the hearing. Mr. Hardy was not present
when the court announced its rulings. He did not request to be at the conference and
defense counsel did not object to his absence.
Mr. Hardy’s absence at the conference did not violate due process. There is “no
indication that his presence at the . . . hearing in this case would have been useful in
ensuring a more reliable determination as to” the admissibility of the Facebook messages.
Stincer, 482 U.S. at 747. Although he argues “he could have provided counsel with
information about the meaning, context, and purpose of the statements in question,”
Aplt. Br. at 11, he had the opportunity to do so at the Friday James hearing before trial
and before his counsel submitted a written response on Sunday to the Government’s
supplemental filing.
No evidence was introduced and no arguments were made at the in-chambers
conference. Rather, the district court ruled based on the Friday James hearing testimony
and the parties’ written arguments. “[T]here is no indication that [Mr. Hardy] ‘could
have done anything had he been at the hearing nor would he have gained anything by
8 Appellate Case: 24-8006 Document: 95-1 Date Filed: 08/12/2025 Page: 9
attending.’” Stincer, 482 U.S. at 747 (alterations adopted) (quoting Gagnon, 470 U.S.
at 527); see also Snyder, 291 U.S. at 106-07 (no due process right when the defendant’s
“presence would be useless, or the benefit but a shadow”).
Because the district court held the in-chambers conference solely to state its legal
rulings, and because Mr. Hardy’s presence would not have contributed to the fairness of
the proceeding, his due process argument fails. See Beierle, 810 F.3d at 1199. The court
did not err.1
B. Rule 404(b) Evidence
Mr. Hardy argues the district court plainly erred by admitting evidence that he
possessed user-amounts of fentanyl when he was arrested on April 15, 2023, because
(1) the court did not specifically identify the purpose for its admission and (2) there was
no permissible reason to admit the evidence. Even assuming an error that was plain,
Mr. Hardy has failed to show it affected his substantial rights.
Because Mr. Hardy’s counsel did not object to the introduction of this Rule 404(b)
evidence, we review for plain error. See United States v. Wilson, 107 F.3d 774, 782
(10th Cir. 1997).
1 Mr. Hardy’s argument also fails because any error would not be plain. See Faunce, 66 F.4th at 1254. No circuit has addressed whether a defendant has a due process right to be present at a James hearing, let alone be present for only the court’s legal ruling. At least one circuit has held that a defendant does not have a Sixth Amendment right to be present at a pretrial James hearing. See United States v. Pepe, 747 F.2d 632, 653-54 (11th Cir. 1984).
9 Appellate Case: 24-8006 Document: 95-1 Date Filed: 08/12/2025 Page: 10
As noted above, to establish plain error, the defendant must show “(1) an error
occurred; (2) the error was plain; (3) the error affected . . . [his] substantial rights; and
(4) the error seriously affected the fairness, integrity, or public reputation of a judicial
proceeding.” Kee, 129 F.4th at 1252 (quoting Wolfname, 835 F.3d at 1217).
A defendant’s “substantial rights were affected if there is ‘a reasonable probability
that, but for the error, the outcome of the proceeding would have been different.’” Id.
(quoting United States v. Jones, 74 F.4th 1065, 1072 (10th Cir. 2023)). “A ‘reasonable
probability’ only requires that the Court cannot ‘be confident that the jury would have
returned the same verdict had the [error] not occurred.’” Id. (alteration in original)
(quoting Banks v. Reynolds, 54 F.3d 1508, 1521 (10th Cir. 1995)).
Federal Rule of Evidence 404(b)(1) prohibits the admission of evidence of “any
other crime, wrong, or act” to show a defendant’s propensity to commit bad acts. But
such evidence “may be admissible for another purpose, such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of
accident.” Fed. R. Evid. 404(b)(2). We apply a four-factor test when reviewing the
admissibility of evidence under Rule 404(b):
(1) the evidence must be offered for a proper purpose; (2) the evidence must be relevant; (3) the trial court must make a [Fed. R. Evid.] 403 determination of whether the probative value of the similar acts is substantially outweighed by its potential for unfair prejudice; and (4) . . . the trial court shall, upon request, instruct the jury that evidence of similar acts is to be considered only for the proper purpose for which it was admitted.
10 Appellate Case: 24-8006 Document: 95-1 Date Filed: 08/12/2025 Page: 11
United States v. Joseph, 108 F.4th 1273, 1284 (10th Cir. 2024) (alteration in original)
(quoting United States v. Davis, 636 F.3d 1281, 1297 (10th Cir. 2011)).
“In addition, the government must precisely articulate the purpose for which the
evidence is offered, and the trial court must specifically identify the purpose for which it
is admitted. However, failure to do so is harmless error if the purpose for admitting the
evidence is apparent from the record and the decision to admit it is correct.”
United States v. Hardwell, 80 F.3d 1471, 1488 (10th Cir. 1996); see also United States v.
Youts, 229 F.3d 1312, 1317 (10th Cir. 2000) (“[A] broad statement merely invoking or
restating Rule 404(b) will not suffice.” (alteration in original) (quotations omitted)).
The Government’s pretrial filings included a notice to offer evidence under
Rule 404(b) of Mr. Hardy’s April 15, 2023 possession of nine fentanyl pills and his two
2018 felony convictions for delivery and possession of methamphetamine. Mr. Hardy
did not respond. The court ruled the evidence admissible.2
Even assuming Mr. Hardy has established the first two steps of plain error,3 he has
not shown the third step—“a reasonable probability that, but for the error, the outcome of
2 On appeal, Mr. Hardy does not contest the admission of the two 2018 convictions, so we confine our analysis to the April 15, 2023 drug possession evidence. 3 We have said that “we are unable to discern how evidence that Defendant possessed personal-usage amounts of controlled substances is relevant to show that he intended to distribute narcotics in the instant case.” United States v. Edwards, 540 F.3d
11 Appellate Case: 24-8006 Document: 95-1 Date Filed: 08/12/2025 Page: 12
the proceeding would have been different.” Kee, 129 F.4th at 1252 (quoting Jones,
74 F.4th at 1072). Mr. Hardy argues there was “a reasonable probability that the jury
convicted him based upon his propensity for committing drug offenses” because “the jury
was only presented with physical evidence that he possessed a grand total of nine
[fentanyl pills]—exactly what a user might be expected to possess.” Aplt. Br. at 15-16.
But Mr. Hardy’s argument ignores the substantial evidence of his fentanyl distribution.
At trial, the Government introduced Facebook messages between Mr. Hardy and
at least a dozen fentanyl purchasers. Two purchasers testified that they bought hundreds
of fentanyl pills from Mr. Hardy and either resold or redistributed some of them. Two
purchasers also testified that Mr. Hardy sometimes had hundreds of pills on him—
amounts consistent with distribution rather than personal use. See App., Vol. II at 327,
336-38 (state investigator testifying that personal usage varies but is often “between 5
and 20 pills” and distribution amounts are often between 100 and 1,000 pills). And
Mr. Hardy stated to a purchaser that he “moved . . . a boat and a half in two days,” which
is 1,500 fentanyl pills. Id. at 435; see also id. at 335 (explaining a “boat” is 1,000
fentanyl pills). Further, Mr. Ascherin, a coconspirator, was arrested with over 200
fentanyl pills days after asking to meet Mr. Hardy to purchase 500 pills.
1156, 1163-64 (10th Cir. 2008) (evidence of “prior possession of personal-user amounts of drugs did not corroborate witnesses’ testimony regarding distribution,” and could only corroborate testimony “through an impermissible propensity argument,” but finding the admission harmless considering the overwhelming evidence against the defendant).
12 Appellate Case: 24-8006 Document: 95-1 Date Filed: 08/12/2025 Page: 13
The Government also introduced messages between Mr. Hardy and his alleged
supplier, Scotty Be. The two discussed Mr. Hardy’s purchasing fentanyl pills in amounts
of 40, 50, 60, and “[a] hundo pack” (100 pills) on multiple occasions. Id. at 302, 452-62.
In at least one message, Scotty Be agreed to ride with Mr. Hardy to a sale of fentanyl
pills.
Given this evidence of conspiracy to distribute at least 40 grams of fentanyl
(400 pills),4 there is no reasonable probability that admission of Mr. Hardy’s fentanyl
possession of nine pills on April 15, 2023, four and one-half months after the charged
conspiracy, affected the jury’s guilty verdict. See United States v. McGlothin, 705 F.3d
1254, 1268 (10th Cir. 2013) (finding, on plain error review, the admission of prior
incidents of gun possession under Rule 404(b) did not affect the jury’s guilty verdict
given the overwhelming evidence of constructive possession of a gun); see also
United States v. Edwards, 540 F.3d 1156, 1164 (10th Cir. 2008) (finding, in light of the
overwhelming evidence of the defendant’s “involvement in this large-scale
drug-trafficking operation, his heavy, habitual, drug use, and his involvement with
firearms,” the “minimal evidence of his two prior drug possession convictions did not
substantially influence the outcome of his trial”).
Further, Mr. Hardy does not explain how his possession of user-amounts of
fentanyl on April 15, 2023 affected the jury’s verdict in light of his admission at trial that
4 One fentanyl pill weighs approximately 0.1 gram. See App., Vol. II at 495.
13 Appellate Case: 24-8006 Document: 95-1 Date Filed: 08/12/2025 Page: 14
he was a fentanyl user and addicted to the drug. See App., Vol. II at 119, 563-64;
United States v. McGrew, 17 F. App’x 552, 553 (9th Cir. 2001) (unpublished) (“Any
possible prejudice associated with admitting evidence of her prior conviction for
possession of cocaine rocks would have been overwhelmed by her own admission that
she was a habitual user of crack cocaine.”).
Finally, the Government did not put this evidence “before the jury again, in
closing argument or otherwise.” United States v. Battles, 745 F.3d 436, 453 (10th Cir.
2014). And the district court specifically instructed the jury that Mr. Hardy was not on
trial for his April 15, 2023 fentanyl possession and that this evidence may not be
considered for any purpose other than determining his “motive, opportunity, intent,
and/or knowledge and, potentially, absence of mistake.” App., Vol. II at 505-06;
see Battles, 745 F.3d at 452-53 (finding any impact of a witness’s “brief answers” to two
questions about the defendant destroying evidence was “negligible” when the
government did not reference her answers and the district court provided a limiting
instruction).
Based on the Government’s substantial evidence that Mr. Hardy distributed large
quantities of fentanyl, Mr. Hardy’s admission at trial that he used fentanyl, and the
district court’s limiting instruction, we conclude there was no reasonable probability that
evidence of Mr. Hardy’s possession of user-amounts of fentanyl at the time of his arrest
affected the jury’s guilty verdict.
14 Appellate Case: 24-8006 Document: 95-1 Date Filed: 08/12/2025 Page: 15
C. Drug Quantity Calculation
Mr. Hardy argues the district court clearly erred in finding he was responsible for
1,773 grams of fentanyl because it relied on unreliable hearsay from a confidential
source. We agree.
We review for clear error a district court’s factual findings of drug quantities
attributable to a defendant under the Sentencing Guidelines. United States v. Ortiz,
993 F.2d 204, 207 (10th Cir. 1993). Drug quantities used to calculate the Guidelines
range are clearly erroneous when they lack “factual support in the record or we are left
with the definite and firm conviction that a mistake has been made.” United States v.
Todd, 515 F.3d 1128, 1135 (10th Cir. 2008) (quoting United States v. Dalton, 409 F.3d
1247, 1251 (10th Cir. 2005)).
a. Drug quantity calculation
To determine the Guidelines range, the district court must consider “all quantities
of contraband with which [the defendant] was directly involved.” U.S.S.G. § 1B1.3 cmt.
n.3. If the government did not seize all of the drugs, the court must “approximate the
quantity of the controlled substance.” Id. § 2D1.1 cmt. n.5; see also Ortiz, 993 F.2d
at 207. To do so, the court may rely on government estimates if they possess “sufficient
indicia of reliability to support [their] probable accuracy.” Ortiz, 993 F.2d at 207
(quotations omitted); see also United States v. Ruby, 706 F.3d 1221, 1229 (10th Cir.
2013); United States v. Cook, 949 F.2d 289, 296 (10th Cir. 1991).
15 Appellate Case: 24-8006 Document: 95-1 Date Filed: 08/12/2025 Page: 16
“The government has the burden of proving the quantity of drugs for sentencing
purposes by a preponderance of the evidence.” Ortiz, 993 F.2d at 207. “[W]hen
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.” Id.
at 208 (alteration in original) (quoting United States v. Walton, 908 F.2d 1289, 1302
(6th Cir. 1990)).
The “fact that [a] confidential informant had proven reliable in the past is simply
not ‘sufficient corroboration by other means’ of the informant’s information regarding
the quantity of [drugs] that [the d]efendant distributed.” Id. (remanding for resentencing
due to clear error). Also, drug calculations are insufficiently corroborated when they are
contradicted by the record or require impermissible extrapolation. See United States v.
Richards, 27 F.3d 465, 469 (10th Cir. 1994) (remanding for resentencing because a
witness’s in-court testimony “flatly contradict[ed]” the government’s drug estimate);
United States v. Roberts, 14 F.3d 502, 521-22 (10th Cir. 1993) (remanding for
resentencing because the government’s extrapolation from a witness’s statement was
mainly uncorroborated and partially contradicted by other evidence).
b. Sentencing hearsay
“Unlike at a criminal trial where the Federal Rules of Evidence limit the types of
admissible evidence, at a sentencing hearing the court can have access to any relevant
information, as long as it adheres to a preponderance of the evidence standard.” Ruby,
706 F.3d at 1227; see also U.S.S.G. § 6A1.3(a) (requiring “information has sufficient
indicia of reliability to support its probable accuracy”).
16 Appellate Case: 24-8006 Document: 95-1 Date Filed: 08/12/2025 Page: 17
Hearsay statements are “presumptively unreliable” for trial purposes, Idaho v.
Wright, 497 U.S. 805, 823 (1990), but “may be considered at sentencing if they bear
‘some minimal indicia of reliability,’” which is a “low hurdle,” United States v. Cook,
550 F.3d 1292, 1296 (10th Cir. 2008) (quoting United States v. Browning, 61 F.3d 752,
755 (10th Cir. 1995)). “Corroborating evidence is often key to determining whether a
statement is sufficiently reliable.” Ruby, 706 F.3d at 1229.
a. Presentence Report fentanyl calculation
The Presentence Report (“PSR”) calculated the total fentanyl quantity attributable
to Mr. Hardy as 1,773 grams based on interviews, messages, and testimony by fentanyl
purchasers. An interview with a confidential source (“CS”), accounted for 1,210 grams.
The PSR stated that Officer Sanne and another investigator interviewed the CS on
October 7, 2022. According to the PSR, the CS told them “he/she purchased
approximately 100 fentanyl pills from HARDY approximately every two or three days
for the previous year5 (9000pills/900grams),” paid $250.00 for 100 fentanyl pills,
occasionally observed Mr. Hardy in possession of approximately 1,000 fentanyl pills
when purchasing fentanyl from him, and communicated with Mr. Hardy on Facebook
5 The CS reported buying fentanyl from Mr. Hardy from October 7, 2021, to October 7, 2022. Nearly nine of those months—October 7, 2021, to June 30, 2022— preceded the charged conspiracy—July 1, 2022, to December 29, 2022. Just over three months—July 1, 2022, to October 7, 2022—overlapped with the conspiracy.
17 Appellate Case: 24-8006 Document: 95-1 Date Filed: 08/12/2025 Page: 18
Messenger. App., Vol. III at 24—SEALED.6 The investigators looked through the CS’s
Facebook messages and “observed several messages between CS and HARDY that
indicated HARDY was CS’s source of supply for controlled substances.” Id. The PSR
stated, “During the course of this interview and other investigations, CS provided
information that was accurate and reliable.” Id. The PSR’s final Guidelines calculation
estimated the fentanyl amount the CS purchased from Mr. Hardy to be 1,210 grams
(12,100 pills).7
b. Mr. Hardy’s objections
Mr. Hardy objected in writing to the PSR’s total quantity of fentanyl, arguing the
calculation was based on unreliable hearsay and unproven Facebook messages. He also
argued later at sentencing that “whatever was discussed [in] those Facebook messages
was not the amount that was eventually delivered.” App., Vol. II at 611-12.
c. Probation’s response
The Probation Office responded that the CS’s Facebook messages with Mr. Hardy
corroborated law enforcement’s reliance on the CS’s interview and that law enforcement
6 The quoted material from the PSR appears in Mr. Hardy’s publicly filed brief. See United States v. Alcazar, No. 23-2004, 2023 WL 8643189, at *1 n.1 (10th Cir. Dec. 14, 2023) (unpublished). We cite unpublished opinions for their persuasive value under Fed. R. App. P. 32.1; 10th Cir. R. 32.1. 7 The PSR does not explain why the preliminary estimate was 900 grams (9,000 pills), and the final estimate was 1,210 grams (12,100 pills). Although this discrepancy would not change the outcome of this appeal, we note it for the district court to address on remand.
18 Appellate Case: 24-8006 Document: 95-1 Date Filed: 08/12/2025 Page: 19
found the CS had provided accurate and reliable information. It did not identify any
specific Facebook message.
d. Sentencing
At sentencing, the Government argued the trial evidence proved Mr. Hardy was
responsible for “a minimum of 560 grams,” plus “the additional 1200 grams from the
interview of the confidential source.” Id. at 614. The prosecutor explained:
Detective Sanne was going to come up here with me today but had a family issue and could not come. What I can provide to the Court are—these are—there were an incredibly large number of messages that were provided to the Court that justify this amount. We saw that number of messages that were admitted but ones that were not. That confidential source, her messages, were, I believe, part of them, as well, too, that were not admitted. . . . So what we have in the end is, it’s not relying upon one or two people’s statements. It’s dozens and dozens of Facebook messages. . . .
Id. at 614-15. No specific messages were cited or discussed.
Mr. Hardy reiterated his written objection. The district court overruled his
objection, stating:
There were, in addition to that quantity, as detailed by the presentence report author, the additional messages and information that were posted on the Facebook Messenger account and discussed the various quantities. There was also the interviews of confidential sources that were summarized in addition. The Court would find, based upon the totality of that information, certainly, I believe that there may be some gap in terms of some of those. But even giving the defendant the benefit of doubt, the Court would find that there is sufficient indicia of reliability, based upon the information, to support that 32 offense—base offense level.
19 Appellate Case: 24-8006 Document: 95-1 Date Filed: 08/12/2025 Page: 20
The various information was corroborated in various ways during testimony at trial as well as on the Facebook communications and the confidential informants’ statements.
Id. at 617-18.
Based on the foregoing, the district court accepted the PSR’s total fentanyl
quantity of 1,773 grams, which resulted in a 32 base offense level. A 32 base offense
level and a Criminal History Category of VI resulted in a Guidelines range of 210 to 262
months. The court “adjust[ed] downward” one base offense level to “reflect [Mr. Hardy]
was on the lower end of the [drug] quantities,” id. at 648, and adjusted “to the left” one
criminal history category to “reflect the aberrant behavior issues and the recent onset of
the criminal conduct,” id. at 653. With a 31 base offense level and a Criminal History
Category of V, the Guidelines range was 168 to 210 months.8 The court sentenced
Mr. Hardy to 168 months in prison followed by four years of supervised release.
We agree with Mr. Hardy that the Government did not meet its burden to establish
how much fentanyl he distributed. Ortiz, 993 F.2d at 207. The district court’s reliance
on the CS’s hearsay statements to add 1,210 grams to Mr. Hardy’s drug quantity was
clearly erroneous because they lacked the necessary indicia of reliability we require for
8 Without the CS’s statements, Mr. Hardy would be responsible for 563 grams of fentanyl, resulting in a 30 base offense level. U.S.S.G. § 2D1.1(c)(5). With a 30 base offense level and a Criminal History Category of V, the Guidelines range would be 151 to 188 months. U.S.S.G. ch. 5, pt. A.
20 Appellate Case: 24-8006 Document: 95-1 Date Filed: 08/12/2025 Page: 21
out-of-court statements. See id.; Roberts, 14 F.3d at 519-22. The trial and sentencing
record bear this out.
To aid in our analysis, we provide a timeline of relevant dates.
First, the record contradicts the CS’s hearsay statements. See Richards, 27 F.3d
at 469. The CS could not have received 100 fentanyl pills from Mr. Hardy every three
days from October 2021 to January 2022, as the CS claimed, because the record shows
Mr. Hardy was in custody then, which the Government conceded at oral argument.
Oral Arg. at 17:37-57. The Government has not shown, let alone even suggested, that
Mr. Hardy could distribute fentanyl while in custody. “The record itself, therefore, tends
to undermine, rather than buttress, confidence in the [speaker]’s hearsay statements.”
United States v. Fennell, 65 F.3d 812, 813 (10th Cir. 1995); see also United States v.
Beler, 20 F.3d 1428, 1433-35 (7th Cir. 1994) (discrepancy between trial testimony and
witness’s sentencing affidavit estimating drug quantity “was sufficient to raise a question
about the reliability of [the witness]’s affidavits”).
Second, the Government provided no evidence beyond the CS’s “say-so” showing
that Mr. Hardy possessed or had access to fentanyl between January and June 2022 when
he was not in custody. See United States v. Cripps, No. 24-7014, 2025 WL 1444187,
at *3 (10th Cir. May 20, 2025) (unpublished). The record lacks evidence showing that
21 Appellate Case: 24-8006 Document: 95-1 Date Filed: 08/12/2025 Page: 22
Mr. Hardy used Scotty Be or anyone else as a fentanyl supplier before July 2022. Trial
witnesses testified to purchasing fentanyl from Mr. Hardy only between July and
December 2022—the charged conspiracy. The CS’s statements about distribution
between January and June 2022 thus remain “without factual support in the record.”
Todd, 515 F.3d at 1135 (quotations omitted).
Attempting to overcome this shortcoming, the Government points to trial evidence
showing that from August to December 2022, Mr. Hardy “had ready access to large
quantities of fentanyl from his dealer in Denver, which would allow him to be able to
consistently supply the confidential source with 100 fentanyl pills every three days,”
Aplee. Br. at 21, suggesting that he had similar amounts between January and June.
Apart from this evidence saying nothing about distribution to the CS, our cases reject this
speculative extrapolation.9
Third, the PSR said Facebook messages between the CS and Mr. Hardy supported
the 1,210 grams, but neither the PSR, the prosecution, nor the district court identified
9 See Ortiz, 993 F.2d at 207-08 (defendant’s admission to distributing “pound quantities [of marijuana] every six months” and one-time purchase of nearly one kilogram of marijuana were insufficient to support confidential informant’s statement that defendant distributed three pounds of marijuana per week over 18-month period); Roberts, 14 F.3d at 521-22 (government’s extrapolation from a witness’s statements that defendant “received 1 ounce of methamphetamine every two weeks for a year and a half” was mainly uncorroborated and partially contradicted by other evidence); see also Walton, 908 F.2d at 1302-03 (evidence that defendants distributed specific quantity of cocaine weekly during five-month period was insufficient to infer they distributed same quantity over a more than two-year period); see also United States v. Shonubi, 998 F.2d 84, 89-90 (2d Cir. 1993) (evidence of drug quantity on date of arrest insufficient to infer same quantity on seven prior dates).
22 Appellate Case: 24-8006 Document: 95-1 Date Filed: 08/12/2025 Page: 23
those messages. See Cripps, 2025 WL 1444187, at *3 (“The government provided no
evidence to support [the source]’s statements about the additional 54 kilograms of
methamphetamine other than her say-so.”).10
Fourth, the PSR’s reference to the investigators’ assertion that the CS had
provided reliable information in this and other investigations “is simply not ‘sufficient
corroboration.’” Ortiz, 993 F.2d at 207; see also United States v. Helding, 948 F.3d 864,
869-72 (7th Cir. 2020) (vacating sentence when district court failed to determine that
out-of-court statements from confidential informants about drug quantity defendant sold
had “a modicum of reliability”).
* * * *
The record thus lacks corroboration for the CS’s hearsay statement that Mr. Hardy
distributed 100 fentanyl pills every three days to the CS for an entire year
(1,210 grams/12,100 pills).11
10 When pressed on this point at oral argument, the Government cited a Facebook message in Exhibit 24b purportedly showing that, at least once, the CS requested 100 fentanyl pills from Mr. Hardy. Oral Arg. at 14:04-26. But the Government acknowledged the message showed that Mr. Hardy did not sell the CS those 100 fentanyl pills at the CS’s proposed price point. Id. at 14:26-41; Suppl. App., Ex. 24b. None of the four messages in Exhibit 24b—each sent by Mr. Hardy on the same day in September 2022—substantiate the CS’s statement about receiving 100 fentanyl pills from Mr. Hardy every three days for a year. See Walton, 908 F.2d at 1302. 11 Even assuming the Government provided corroboration for the remaining three months—July 1, 2022, to October 7, 2022—the CS’s estimated amount would hardly reach 1,210 grams (12,100 pills).
23 Appellate Case: 24-8006 Document: 95-1 Date Filed: 08/12/2025 Page: 24
A final note: because Mr. Hardy challenged the reliability of the CS’s hearsay
statements and the Government failed to corroborate them, “Ortiz counsels the
government must do more—corroborating witnesses or live testimony from the witness
where credibility can be assessed by the court.” Cripps, 2025 WL 1444187, at *3;
see also United States v. Shonubi, 998 F.2d 84, 89 (2d Cir. 1993) (“Case law uniformly
requires specific evidence—e.g., drug records, admissions or live testimony—to calculate
drug quantities for sentencing purposes.”). Although the Government tried to call
Officer Sanne to testify at the sentencing hearing “in an effort to show that the
[confidential] source[’s] statements were reliable and corroborated,” Cripps, 2025 WL
1444187, at *5, he did not testify due to a family issue, adding an extra layer to the
uncorroborated hearsay evidence the district court relied upon.
III. CONCLUSION
For the foregoing reasons, we (1) affirm Mr. Hardy’s conviction and (2) vacate his
sentence and remand for resentencing.