United States v. Hardy: The Tenth Circuit Demands Reliable Corroboration of Hearsay in Drug-Quantity Findings at Sentencing

Introduction

United States v. Hardy, No. 24-8006 (10th Cir. Aug. 12, 2025)¹, is a multifaceted appeal arising from a fentanyl-distribution conspiracy in Wyoming. The defendant, Traquevis Dewayne Hardy, was convicted by a jury of conspiring to distribute at least 40 grams of fentanyl but challenged:

His absence from an in-chambers James-hearing ruling on co-conspirator statements;
The admission of Rule 404(b) evidence showing he possessed “user-amounts” of fentanyl after the conspiracy period; and
The sentencing court’s reliance on uncorroborated hearsay from a confidential source (“CS”) to attribute 1,773 grams of fentanyl to him, resulting in a much higher Guideline range.

The Tenth Circuit affirmed the conviction but vacated the sentence and remanded, announcing a sharpened requirement that when the government relies on hearsay—particularly from confidential informants—to approximate drug quantity, it must provide specific, independently corroborated evidence. Mere assertions of past reliability or generalized Facebook messages will not suffice.

Summary of the Judgment

Conviction affirmed. • No due-process violation in announcing a purely legal evidentiary ruling outside the defendant’s presence. • Any Rule 404(b) error was harmless given overwhelming distribution evidence and a limiting instruction.
Sentence vacated. • The district court clearly erred in crediting the CS’s statement that Hardy supplied 100 fentanyl pills every three days for a year (≈1,210 g). • The statement conflicted with undisputed custody records and lacked documentary or testimonial corroboration. • Without the uncorroborated hearsay, the base offense level would drop, lowering the Guideline range from 168–210 months to 151–188 months; thus, resentencing is required.

Detailed Analysis

A. Precedents Cited

The panel marshalled a series of Supreme Court and circuit authorities:

Due-Process/Presence Cases: Snyder v. Massachusetts, 291 U.S. 97 (1934); United States v. Gagnon, 470 U.S. 522 (1985); Kentucky v. Stincer, 482 U.S. 730 (1987); Larson v. Tansy, 911 F.2d 392 (10th Cir. 1990); United States v. Beierle, 810 F.3d 1193 (10th Cir. 2016).
Rule 404(b) & Plain-Error Cases: United States v. Joseph, 108 F.4th 1273 (10th Cir. 2024); United States v. Edwards, 540 F.3d 1156 (10th Cir. 2008).
Drug-Quantity/Hearsay Sentencing Cases: United States v. Ortiz, 993 F.2d 204 (10th Cir. 1993) (seminal); United States v. Roberts, 14 F.3d 502 (10th Cir. 1993); United States v. Richards, 27 F.3d 465 (10th Cir. 1994); United States v. Todd, 515 F.3d 1128 (10th Cir. 2008); United States v. Ruby, 706 F.3d 1221 (10th Cir. 2013).

These precedents collectively establish: (1) The defendant’s constitutional “right to be present” does not extend to purely legal conferences; (2) Rule 404(b) evidence must be admitted for a proper, articulated purpose; and (3) Drug-quantity findings may rely on hearsay only if it carries “sufficient indicia of reliability,” meaning concrete corroboration and avoidance of speculative extrapolation.

B. Legal Reasoning

1. Absence from the In-Chambers James Ruling

The court held no due-process error occurred because:

The conference announced a purely legal ruling; no evidence was taken, and counsel had already litigated the issue;
Presence would have been “useless, or the benefit but a shadow” (Stincer);
Any error was not “plain” absent on-point Supreme Court or Tenth Circuit authority requiring a defendant’s presence for such conferences.

2. Admission of April 2023 Fentanyl Possession (Rule 404(b))

Even if the district court erred by not expressly identifying the non-propensity purpose, the panel found no reasonable probability of a different verdict because:

The government produced overwhelming evidence of distribution: extensive Facebook messages, testimony of bulk purchasers, and Hardy’s own statements.
The jury heard a robust limiting instruction, and the government did not emphasize the disputed evidence in closing.

3. Drug-Quantity Finding and Uncorroborated Hearsay

The heart of the new precedent lies here. Key analytical steps:

Lack of corroboration – The CS’s story was unverified by documents, testimony, or seized drugs; the record even contradicted it (Hardy was in custody for part of the claimed period).
Speculative extrapolation – Inferring a year-long pattern of 100-pill sales every three days from stray Facebook messages is “impermissible extrapolation” under Ortiz/Roberts.
Burden of proof – At sentencing, the government carries the burden by a preponderance. A blanket statement that “CS has been reliable before” is inadequate.

Accordingly, the court deemed the district judge’s acceptance of 1,210 grams from the CS “clearly erroneous,” necessitating resentencing.

C. Impact of the Decision

Sentencing hearings in the Tenth Circuit will now require prosecutors to corroborate confidential-source hearsay with independent evidence (messages tied to specific transactions, controlled buys, live testimony, bank or phone records, etc.).
Probation offices must document the source and content of electronic communications they cite, attaching or at least specifically identifying the supporting records.
Defense counsel gain a powerful citation for objecting to loosely supported drug-quantity estimates, forcing the government either to produce the informant or adduce corroborative data.
District courts are implicitly encouraged to hold evidentiary hearings—calling live witnesses if necessary—when reliability is contested.
The ruling aligns the Tenth Circuit with the Seventh (Helding) and Second (Shonubi) Circuits in tightening scrutiny of hearsay-based quantities, thus advancing nationwide convergence on this sentencing issue.

Complex Concepts Simplified

James Hearing – A pretrial proceeding (named after United States v. James, 5th Cir.) where the court decides whether co-conspirator statements are admissible as non-hearsay under Rule 801(d)(2)(E).
Plain Error – A four-part appellate test: (1) error, (2) clear/obvious, (3) affects substantial rights (usually changes outcome), (4) seriously affects fairness and integrity of proceedings.
Rule 404(b) – Evidence of “other crimes, wrongs, or acts” cannot prove propensity but can show motive, intent, plan, identity, etc., if its probative value outweighs prejudice.
Indicia of Reliability – The minimum evidentiary foundation (corroboration, specificity, internal consistency) required before hearsay can influence a Guideline calculation.
Base Offense Level – A numeric starting point in the U.S. Sentencing Guidelines determined by drug type and quantity; higher quantities dramatically increase sentencing ranges.

Conclusion

United States v. Hardy is more than a routine remand. It signals a recalibrated insistence on reliability in drug-quantity findings within the Tenth Circuit. Prosecutors may no longer bootstrap large quantities onto a defendant’s sentencing profile by invoking an informant’s reputation for truthfulness and a thicket of unspecified electronic messages. Instead, trial courts must anchor quantity determinations in specific, verifiable evidence—or “err on the side of caution,” as Ortiz long ago demanded. By reinforcing that principle, the Tenth Circuit enhances proportional sentencing, due-process protections, and the integrity of the Guidelines system.

¹ Full citation: United States v. Hardy, ___ F.4th ___, 2025 WL ____ (10th Cir. Aug. 12, 2025).