United States of America v. Haji Bagcho, Also Known As Haji Bagh Chagul , Also Known As Haji Bagchagul

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 6, 2018 Decided May 14, 2019
No. 12-3042
UNITED STATES OF AMERICA ,
APPELLEE
v.
HAJI BAGCHO, ALSO KNOWN AS HAJI BAGH C HAGUL , ALSO
KNOWN AS HAJI BAGCHAGUL ,
APPELLANT
Consolidated with 17-3009, 17-3069
Appeals from the United States District Court
for the District of Columbia
(No. 1:06-cr-00334-1)
Sandra G. Roland, Assistant Federal Public Defender,
argued the cause for appellant. With her on the briefs was A.J.
Kramer, Federal Public Defender. Tony Axam Jr., Assistant
Federal Public Defender, entered an appearance.
Robert A. Parker, Attorney, U.S. Department of Justice,
argued the cause and filed the brief for appellee. Matthew R.
Stiglitz, Trial Attorney, and David B. Goodhand and Elizabeth
Trosman, Assistant U.S. Attorneys, entered appearances.

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Before: ROGERS and M ILLETT , Circuit Judges, and
GINSBURG, Senior Circuit Judge.
Opinion for the court by Circuit Judge ROGERS .
Concurring opinion by Circuit Judge M ILLETT .
ROGERS , Circuit Judge: In 2012, Haji Bagcho was
convicted by a jury of one count of conspiracy to distribute
heroin, one count of distributing heroin, and one count of
trafficking in narcotics while funding terrorism, and sentenced
to life imprisonment. As a result of newly discovered evidence
of a Brady violation, the district court vacated Bagcho’s
narcoterrorism conviction and resentenced him to concurrent
terms of 300 months on the two remaining convictions. Of
Bagcho’s three contentions on appeal, only one requires further
consideration by the district court.
First, Bagcho contends that by denying his motion for a
continuance the district court prevented him from searching the
jury selection records in hopes of finding evidence that his jury
was not drawn from a fair cross-section of District of Columbia
residents in violation of his rights under the Jury Selection and
Service Act, 28 U.S.C. §§ 1861–67. We find no abuse of
discretion by the district court. The denial did not present a
legal bar to prevent Bagcho from accessing these records. The
trial record shows that the district court, having stayed voir dire
to allow Bagcho’s counsel to question the head of the jury
office, denied his request for a further stay absent evidence of
a “substantial failure to comply” with the Act, 28 U.S.C.
§1867(d).
Second, Bagcho contends there was insufficient evidence,
even under a preponderance standard, to support a two-point

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sentencing enhancement for possession of a firearm during a
drug offense. On the current record, we agree that there was
insufficient evidence Bagcho constructively possessed the AK-
47 found in his absence in his compound where others lived
and worked during an April 2006 raid by law enforcement.
Third, Bagcho contends that his sentence was
unconstitutional because the district court considered
uncharged and acquitted conduct in calculating his base offense
level. He acknowledges he cannot prevail under circuit
precedent.
Accordingly, we remand the case for resentencing but
otherwise affirm the judgment of conviction.
I.
Viewing the evidence most favorably to the government
as we must, Jackson v. Virginia, 443 U.S. 307, 319 (1979), Haji
Bagcho ran a large heroin trafficking operation in Afghanistan.
In 2005, he came under investigation by the Drug Enforcement
Administration (“DEA”) and Afghan authorities. During that
investigation, Afghan and British forces on April 20, 2006,
raided a compound owned by Bagcho in Marco Village in the
Nangarhar province of Afghanistan looking for evidence of
drug trafficking. The compound comprised several structures
including a main residence with ten rooms, a garage, a storage
area, and a guesthouse. DEA Agent Gregory Brittain, who was
present at the compound as an advisor and mentor, saw Afghan
officers bring items out of the compound; one item was “an
AK-47 rifle with magazines.” Trial Tr. 37 (Feb. 29, 2012).
Bagcho was not at the compound at the time of the raid.
As part of the investigation, the DEA enlisted Afghan
officials to pose as corrupt police officials, who engaged

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Bagcho in discussions about his drug trafficking activities and
to whom Bagcho offered bribes in exchange for early warning
of raids planned against his operation. Other undercover
informants, including Afghan law enforcement and civilians,
were engaged to conduct controlled drug buys from Bagcho
and to record conversations with Bagcho discussing heroin
purchases.
In November 2006, Bagcho was indicted for drug
trafficking by a United States federal grand jury. Upon his
arrest in May 2009, he was extradited to the United States. A
grand jury returned a four-count superseding indictment in
January 2010, charging him with (1) conspiracy to distribute
one kilogram or more of heroin for import into the United
States; (2) distribution of one kilogram or more of heroin on
September 25, 2006 for import into the United States;
(3) distribution of one kilogram or more of heroin on May 21,
2008 for import into the United States; and (4) distribution of
one kilogram or more of heroin while funding terrorism. At
trial, the jury deadlocked on all counts, and the district court
declared a mistrial.
In February 2012, during voir dire for Bagcho’s second
trial, his counsel, upon seeing the members of the venire,
informed the district court of his concern there were a
disproportionately low number of African Americans. Only
twelve of the prospective jurors were African American,
compared to twenty-six whites and two people of unknown
ethnicity. Also twenty-nine of the prospective jurors resided in
Northwest D.C., while only three resided in Southeast D.C.
Since African Americans represented roughly half of D.C.
residents at the time, Bagcho’s counsel suggested that African
Americans may have been systematically excluded from the
jury pool in violation of Bagcho’s right to be tried by a jury
drawn from a fair cross-section of the community in which the

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court is located. The district court agreed to delay the start of
the jury selection to allow Bagcho’s counsel to question the
head of the jury office, Regina Larry, about the process by
which members of the venire had been selected from the
broader jury pool of D.C. residents.
Ms. Larry explained that the jury pool is drawn from a
master pool of more than 700,000 D.C. residents based on
voter, tax, and Department of Motor Vehicles records. She
testified that she created the jury pool for Bagcho’s trial by
mailing a prescreening form to 1,200 prospective jurors whose
names were randomly selected from the master pool. The jury
office then reviewed the responses, disqualifying some
residents and granting requests of others to be deferred or
excused. Her testimony revealed no evidence that African
Americans or any other group had been systematically
excluded from the jury pool. Bagcho’s counsel nonetheless
requested “a continuance to go to the jury office to go through
the statistics,” Tr. 38 (Feb. 22, 2012), explaining he wanted to
“take a look at statistics” in order to determine whether there
was a “fundamental flaw” in D.C.’s process of summoning
potential jurors, id. at 40. The district court denied his request,
ruling Bagcho had not met his “burden, as the moving party,
[to] demonstrate there was a substantial failure to comply with”
the Jury Selection and Service Act. Id. at 49.
The jury found Bagcho guilty on all counts except Count
III, and the district court sentenced him to concurrent terms of
life imprisonment on each of the three remaining counts. Upon
learning in 2015 by letter from the Justice Department that
prior to Bagcho’s trial the government had known that one of
the government informants who had testified against Bagcho
was likely a fabricator, Bagcho moved for a new trial based on
newly discovered evidence that a principal witness against him
was not credible. The district court found the government’s

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failure to disclose the exculpatory evidence constituted a
violation under Brady v. Maryland, 373 U.S. 83 (1963), and
vacated Bagcho’s conviction on Count IV (narcoterrorism),
which relied exclusively on the informant’s testimony and was
uncorroborated; by contrast, there was abundant or unscathed
evidence to support the convictions on the other two counts.
United States v. Bagcho, 151 F. Supp. 3d 60 (D.D.C. 2015).
The district court denied Bagcho’s motion for reconsideration.
United States v. Bagcho, 227 F. Supp. 3d 28, 31 (D.D.C. 2017).
On September 6, 2017, the district court resentenced
Bagcho. Although Counts I and II only involved two
kilograms of heroin, the district court calculated a base offense
level of 34 for distribution of at least ten but fewer than thirty
kilograms of heroin, U.S.S.G. § 2D1.1(c)(3), finding, by a
preponderance of the evidence, three transactions: 1.998
kilograms in September 2006, 3.71 kilograms in May 2008,
and ten kilograms in July 2008. In addition, the district court
imposed a four-point leadership enhancement and a two-point
enhancement for firearm possession based on the AK-47 found
during the April 2006 raid at Bagcho’s compound. With a total
offense level of 40, the sentencing range was 292 to 365
months. The district court sentenced Bagcho to 300 months
concurrently on each of the two remaining counts.
II.
The Jury Selection and Service Act of 1968 (“the Act”),
28 U.S.C. §§ 1861–67, governs plans for and the manner of
selecting federal grand and petit jurors. It reflects “the policy
of the United States that all litigants in Federal courts entitled
to trial by jury shall have the right to grand and petit juries
selected at random from a fair cross section of the community
in the district or division wherein the court convenes.” Id.
§ 1861. To challenge compliance with jury selection

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procedures, a criminal defendant “may move to dismiss the
indictment or stay the proceedings against him on the ground
of substantial failure to comply with” the Act “before voir dire
begins, or within seven days after the defendant discovered or
could have discovered, by the exercise of diligence, the
grounds therefor, whichever is earlier,” id. § 1867(a). The
motion must include “a sworn statement of facts which, if true,
would constitute a substantial failure to comply with” the Act
and be supported by relevant evidence such as the testimony of
the jury commission or clerk. Id. § 1867(d). If the district court
finds there is evidence to indicate there has been “substantial
failure to comply” with the Act, then the court “shall stay the
proceedings pending the selection of a petit jury in conformity
with” the Act. Id.
The Act provides that in preparing the motion, the
defendant has a right to access “[t]he contents of records or
papers used by the jury commission or clerk in connection with
the jury selection process.” Id. § 1867(f). The defendant is
entitled “to inspect, reproduce, and copy such records or papers
at all reasonable times during the preparation and pendency of
such a motion.” Id. Indeed, the Supreme Court has held that
the Act gives a criminal defendant an “essentially unqualified
right” to inspect records related to the composition of the jury
pool for this trial. Test v. United States, 420 U.S. 28, 29–30
(1975). Accordingly in United States v. Williamson, 903 F.3d
124, 133–34 (D.C. Cir. 2018), this court remanded the case to
allow the defendant to have access to jury commission records
pursuant to 28 U.S.C. § 1867(f), finding no basis to require a
defendant to submit a sworn statement, much less to plausibly
allege a violation of his right to a jury that represents a fair cross
section of the community, “when seeking to inspect jury
records as an initial step in deciding whether to file [] a motion”
under the Act, id. at 133.

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It is undisputed that Bagcho had an unqualified right to
examine the records related to the jury pool for his trial. The
parties disagree, however, on the proper interpretation of the
district court’s denial of Bagcho’s request for a continuance
after hearing the testimony of the head of the jury office.
Bagcho maintains that his “request to access records regarding
jury selection was unlawfully denied,” Appellant’s Br. 33, and
repeatedly frames the district court’s denial as a denial of
“access to jury records,” id. at 34, and of his “discovery
request,” id. at 35, thereby ruling he could not inspect the jury
selection records at all. He seeks a remand of his case to the
district court so he may access the jury records in an “attempt
to support his challenge to the jury-selection procedures.”
Reply Br. 7 (quoting Test, 420 U.S. at 751). The government
considers Bagcho’s characterization of the district court’s
ruling “factually incorrect,” Appellee’s Br. 23, and so do we.
The issue before the district court was not whether to let
Bagcho (or his counsel) have access to the jury records, but
whether to further delay the trial proceedings while he
examined the jury office records. Although Bagcho repeatedly
states that he asked the district court for access to the jury
selection records that it denied, see Appellant’s Br. 26, 33–35,
the record is clear that Bagcho’s counsel requested a
continuance so that he would have time to inspect the records.
After hearing testimony from the head of the jury office,
counsel requested “a continuance to go to the jury office to go
through the statistics” and attempt to show that African-
Americans had been systematically excluded from the jury
pool. Tr. 38 (Feb. 22, 2012); see id. at 42. The prosecutor’s
response was that “there’s no reason to give any more
continuance in this matter.” Id. at 46.
The district court explained that Bagcho was entitled under
the Act to a stay of the trial proceedings only if he could

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“demonstrate there was a substantial failure to comply” with
the Act, 28 U.S.C. § 1867(d), and ruled that he “ha[d] not
sustained [his] burden.” Tr. 49 (Feb. 22, 2012). Stating that it
“cannot continue to provide discovery,” id. at 50, the district
court would not delay the trial further so that Bagcho could
conduct a potentially lengthy investigation into the District of
Columbia’s jury selection process. Nothing in the district
court’s ruling purported to strip Bagcho of his statutory right to
access and review the jury records. And if Bagcho’s counsel
so understood the ruling, he never alerted the district court of
its error. The cases on which Bagcho relies involve motions to
access records, not motions for a continuance, e.g., Williamson,
903 F.3d at 133, and none supports the proposition that Bagcho
was entitled to a continuance. As the Seventh Circuit observed
in United States v. Koliboski, 732 F.2d 1328, 1331 (7th Cir.
1984), “[n]othing in Section 1867, Test, or any other case
requires a court to stay a proceeding in the absence of any
showing that there was substantial failure to comply with the
provisions of the Jury Selection and Service Act.”
To the extent Bagcho assumes he needed the district
court’s permission to examine the jury records, his premise is
flawed. The Act provides that “[t]he parties in a case shall be
allowed to inspect, reproduce, and copy [jury] records or
papers at all reasonable times during the preparation and
pendency of such motion,” 28 U.S.C. § 1867(f). The limit of
inspection to “reasonable times” is the only relevant constraint
the Act imposes. Test, 420 U.S. at 30 & n.4. To obtain access
to the jury records, a defendant need only indicate that he is
preparing a motion under the Act and request the materials
from the jury office. See United States v. Royal, 100 F.3d 1019,
1025 (1st Cir. 1996); United States v. Alden, 776 F.2d 771, 773
(8th Cir. 1985). Were a defendant or his designated agent to
be denied access to jury records as the Act provides, assistance
could be sought from the district court; otherwise, no prior

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court order is necessary. United States v. Layton, 519 F. Supp.
946, 959 (N.D. Cal. 1981).
Nor was the district court’s denial of defense counsel’s
request for a continuance an abuse of discretion. See United
States v. Celis, 608 F.3d 818, 839 (D.C. Cir. 2010). Having
acceded to defense counsel’s request to examine the head of
the jury office, and no evidence having been produced to show
the venire for Bagcho’s trial was not selected in accordance
with the Act, the district court could properly proceed with voir
dire and trial. Congress designed the Act to “reduce the
possibility that [] challenge[s] will be used for dilatory
purposes.” H.R. REP . NO. 90-1076, at 15 (1968); see S. REP .
NO. 90-891, at 33–34 (1967). Moreover, neither the Act nor
the D.C. Jury Selection Plan would prevent a defendant or his
counsel from examining the jury selection records at an earlier
time, including records reflecting D.C. residents who were
called to serve but excused or deferred. That the list of the D.C.
residents called and to be present for voir dire was unavailable
to counsel and the district court until the day of the trial in
Bagcho’s case appears to be a result of administrative habit.
That habit does not appear to be a best practice because it
makes it difficult for defendants to exercise their statutory
rights to investigate the jury pool while simultaneously
participating in the trial. But Bagcho does not challenge that
aspect of the district court’s practice, so its consistency with the
Jury Selection and Service Act is not before us.
III.
The Sentencing Guidelines provide that a district court
may add two points to the base offense level “[i]f a dangerous
weapon (including a firearm) was possessed” during a drug
offense. U.S.S.G. § 2D1.1(b)(1). The preponderance-of-the-
evidence standard applies at sentencing. See United States v.

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Fahnbulleh, 752 F.3d 470, 481 (D.C. Cir. 2014). This court’s
review is de novo for questions of law and clear error for factual
findings, giving “‘due deference’ to the district court’s
application of the Guidelines to facts.” United States v.
McKeever, 824 F.3d 1113, 1119 (D.C. Cir. 2016) (citations
omitted); see Rita v. United States, 551 U.S. 338, 361 (2007).
To prove constructive possession, the government must
show that “the defendant knew of, and was in a position to
exercise dominion and control over” the item in question.
United States v. Dorman, 860 F.3d 675, 679 (D.C. Cir. 2017)
(quoting United States v. Littlejohn, 489 F.3d 1335, 1338 (D.C.
Cir. 2007)). Thus, this court has explained that “there must be
something more than mere presence at the scene of a criminal
transaction. There must be some action, some word, or some
conduct that links the individual to the [contraband].” United
States v. Pardo, 636 F.2d 535, 549 (D.C. Cir. 1980). Once
constructive possession of a weapon during a drug-trafficking
offense has been shown, Application Note 11 of the Guidelines
instructs that then “[t]he enhancement should be applied . . .
unless it is clearly improbable that the weapon was connected
with the offense.” U.S.S.G. § 2D1.1, cmt. n.11.
The district court found that a preponderance of the
evidence showed Bagcho constructively possessed the AK-47
found at his compound during the April 2006 raid. Although
Bagcho was absent from the compound at the time of the raid,
the district court was satisfied the government had met its
burden because Bagcho “was the owner” of the Marco Village
compound and “was in control of the[] premises” when the raid
occurred. Tr. 4:5–7 (Sept. 6, 2017). This district court did not
elaborate on what it meant by “control” beyond ownership.
The district court relied on Application Note 11 in concluding
“[t]he enhancement should apply if the weapon is present,

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unless it is clearly improbable that the weapon was connected
to the offense.” Id. at 4:18–21.
Bagcho’s challenge to the two-point enhancement for the
AK-47 does not dispute that the AK-47 was found during the
drug-trafficking conspiracy of which he has been convicted.
Nor does it turn on suggesting that the AK-47 was not
connected to his drug-trafficking activities. Bagcho instead
takes issue with the district court’s finding that he
constructively possessed the gun because he owned and
controlled the compound. Neither Bagcho nor the government
disputes that Dorman correctly describes the elements of
constructive possession. Bagcho contends that the government
failed to show his constructive possession of the AK-47 by a
preponderance because it “proved no more than that a firearm
was found somewhere within a jointly occupied residence
when [Bagcho] was absent,” and this court has required more
to find constructive possession. Appellant’s Br. 45. The
government responds that Dorman addressed a substantive
count where the government’s burden of proof was greater.
Appellee’s Br. 38.
Notwithstanding the lowered evidentiary burden at
sentencing, the government does not suggest that the same
elements for constructive possession need not be proved. See
United States v. Cazares, 121 F.3d 1241, 1245 (9th Cir. 1997);
In re Sealed Case (Sentencing Guidelines’ Safety Valve), 105
F.3d 1460, 1465 (D.C. Cir. 1997). On the record identified by
the district court in finding Bagcho constructively possessed
the AK-47 found in the raid, we conclude the district court’s
finding is clearly erroneous.
This court has upheld convictions of constructive
possession where “contraband is found in a home or bedroom
where the defendant was the sole occupant.” Dorman, 860

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F.3d at 679 (citing United States v. Dykes, 406 F.3d 717, 722
(D.C. Cir. 2005)). That was not the case here; it is undisputed
that many people either lived or worked in the compound, see
Appellant’s Br. 38–39; Appellee’s Br. 36, and that the
compound consisted of multiple buildings and numerous
rooms where a firearm might have been located. According to
the government’s own brief, “Bagcho’s compound contained
numerous buildings — including a large main residence, a
guesthouse with separate spaces for men and women, a garage,
and a kitchen-and-storage area — and was very large and very
luxurious compared to other homes in the area.” Appellee’s
Br. 4 (internal quotation marks omitted).
The court has also upheld constructive possession where
“law enforcement encountered the defendant in close
proximity to the contraband” and there is “‘evidence of some
other factor—including connection with [contraband], proof of
motive, a gesture implying control, evasive conduct, or a
statement indicating involvement in an enterprise.’” Dorman,
860 F.3d at 680 (quoting United States v. Alexander, 331 F.3d
116, 127 (D.C. Cir. 2003)). That was not the case here; Bagcho
was absent from the compound at the time of the raid. In fact,
Bagcho claims that he had moved to a separate residence in
Pakistan by that time.
Where a defendant “shares a home or bedroom with other
persons,” this court has held there was sufficient evidence of
constructive possession of contraband found in the shared
residence only when there is “additional evidence linking the
defendant to the contraband.” Dorman, 860 F.3d at 679 (citing
United States v. Boyd, 803 F.3d 690, 693 (D.C. Cir. 2015);
United States v. Walker, 99 F.3d 439, 441 (D.C. Cir. 1996)).
Constructive possession in those circumstances may be shown
where the contraband is “kept in plain view,” suggesting that
the defendant knew about and had access to the contraband. Id.

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at 681 (citing United States v. Jenkins, 928 F.2d 1175, 1179
(D.C. Cir. 1991)). But here, the government presented no
evidence about where in the compound the AK-47 was found
and provided no evidence linking the weapon to Bagcho
beyond the fact that it was found at the compound he owned.
The government offers no authority that a defendant’s
ownership of the property where contraband is found suffices
for constructive possession. Cf. United States v. Lucas, 67 F.3d
956, 960 (D.C. Cir. 1995).
The district court’s application of the enhancement also
rested on finding that Bagcho was “in control of the[]
premises.” Tr. 4:6–7 (Sept. 6, 2017). By “control” the district
court apparently meant Bagcho’s ownership of the compound
in light of his ongoing drug operation there, but the district
court did not elaborate. The government maintains that
Bagcho’s leadership position and the fact that the compound
was a site of his heroin trafficking business supports a finding
that he knew about the gun and exercised dominion and control
over it. This court, like others, has acknowledged that “drugs
and guns go together.” United States v. Johnson, 592 F.3d 164,
169 (D.C. Cir. 2010) (internal quotation marks and citation
omitted). But that generalization is only a “plus factor” that
supports constructive possession when coupled with other
factors such as proximity. Dorman, 860 F.3d at 682 (internal
quotation marks and citation omitted). The limits of the
generalization are illustrated in In re Sealed Case (Sentencing
Guidelines’ Safety Valve), 105 F.3d 1460 (D.C. Cir. 1997).
There, the court held there was insufficient evidence of
constructive possession of a gun during a drug transaction
where the defendant was not in the car with the gun. The court
rejected the proposition that “participation in an ongoing drug
business by itself could support a finding of constructive
possession,” id. at 1464, and required some further evidence to
support that “additional inferential step, one that we think

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should not be made automatically,” id. at 1464–65. Here
neither Bagcho’s involvement in drug trafficking nor his
ownership of the compound provides sufficient evidence
linking him to the AK-47. See Dorman, 860 F.3d at 679–80.
To the extent the district court relied on Application Note
11 to justify the enhancement, Tr. 4:14–21 (Sept. 6, 2017), that
commentary is inapposite to the constructive possession
inquiry because it concerns the connection between the firearm
and the drug offense, not the link between the firearm and the
defendant. This court has interpreted Application Note 11’s
instruction that the enhancement “should be applied if the
weapon was present, unless it is clearly improbable that the
weapon was connected with the offense,” U.S.S.G. § 2D1.1,
cmt. n.11, to stand for the proposition that “[t]he weapon need
not be used, but merely present” in order to be considered
connected to the offense, United States v. Mathis, 216 F.3d 18,
27 (D.C. Cir. 2000); see United States v. Burke, 888 F.2d 862,
869 (D.C. Cir. 1989). Similarly, the Sentencing Commission’s
guidance pairs the firearm’s “presen[ce] when the unlawful
activity occurred” with proof of “a nexus between the gun and
the activity.” U.S. Sentencing Commission, Firearms Primer
26 (2016). In other words, Application Note 11’s directive
does not eliminate the requirement to prove constructive
possession that there be a sufficient connection between the
firearm and Bagcho.
With Bagcho’s absence at the time of the raid and no
evidence of where the AK-47 was found in the compound,
there is insufficient evidence to show he had knowledge of and
exercised dominion and control over the particular AK-47 that
was recovered, and it was clear error to find Bagcho
constructively possessed it. Absent a record to indicate that the
district court made findings regarding the other theories based
on co-conspirator liability that the government urges in its brief

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to this court, see Appellee’s Br. 40–41, a remand for
resentencing is appropriate. United States v. Childress, 58 F.3d
693, 726 (D.C. Cir. 1995); see United States v. Barry, 938 F.2d
1327, 1337 (D.C. Cir. 1991).
IV.
Upon resentencing Bagcho, the district court imposed a
base offense level of 34, finding Bagcho engaged in three
separate transactions in which he attempted to distribute a total
of approximately 15.7 kilograms of heroin: the sale of
approximately two kilograms of heroin on September 25, 2006,
an offense of which Bagcho was convicted (Count II); the sale
of a little under four kilograms of heroin on May 21, 2008, an
offense for which Bagcho was acquitted (Count III); and a July
2008 agreement to sell ten kilograms of heroin, an offense with
which Bagcho was never charged.
Bagcho contends that the district court violated his Fifth
and Sixth Amendments rights under the Constitution by
calculating his sentence based on uncharged and acquitted
conduct. But he acknowledges that in United States v. Bell,
795 F.3d 88, 103 (D.C. Cir. 2015), the court held a sentencing
judge may consider uncharged or acquitted conduct proved by
a preponderance of the evidence provided the sentence does not
exceed the statutory maximum or increase the statutory
mandatory minimum. Appellant’s Br. 47. He “maintains that
Bell and similar cases are inconsistent with the Fifth and Sixth
Amendments, and he seeks to preserve his claim for future
review.” Id. The concurrent sentences of 300 months did not
exceed the statutory maximum of life imprisonment for Counts
I and II, nor was the statutory mandatory minimum increased
by consideration of the uncharged or acquitted conduct. See 21
U.S.C. §§ 959, 960(b)(1), 963. Consequently, the court must

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affirm the district court’s consideration of uncharged and
acquitted conduct in calculating Bagcho’s sentence.
Accordingly, we vacate the sentences inasmuch as they
rest on the two-point sentencing enhancement for constructive
possession of the AK-47, and remand the case to the district
court for resentencing; otherwise we affirm the judgment of
conviction on Counts I and II.

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M ILLETT, Circuit Judge, concurring: I write separately to
express my continued opposition to the use of conduct for
which a defendant was acquitted to increase the length of that
person’s sentence. It stands our criminal justice system on its
head to hold that even a single extra day of imprisonment can
be imposed for a crime that the jury says the defendant did not
commit. See United States v. Brown, 892 F.3d 385, 408–409
(D.C. Cir. 2018) (Millett, J., concurring); United States v. Bell,
808 F.3d 926, 928–932 (D.C. Cir. 2015) (Millett, J., concurring
in the denial of rehearing en banc); see also id. at 928
(Kavanaugh, J., concurring) (“Allowing judges to rely on
acquitted or uncharged conduct to impose higher sentences
than they otherwise would impose seems a dubious
infringement of the rights to due process and to a jury trial. If
you have a right to have a jury find beyond a reasonable doubt
the facts that make you guilty, and if you otherwise would
receive, for example, a five-year sentence, why don’t you have
a right to have a jury find beyond a reasonable doubt the facts
that increase that five-year sentence to, say, a 20–year
sentence?”).
I nonetheless concur because circuit precedent forecloses
this panel from righting this grave constitutional wrong. See
United States v. Bell, 795 F.3d 88, 102–103 (D.C. Cir. 2015).
In addition, the district court’s consideration of acquitted
conduct made no difference to the base offense level in this
case. See U.S. Sentencing Guidelines Manual § 2D1.1(c)(3)
(U.S. Sentencing Comm’n 2016) (providing a base offense
level of 34 for 10 to 30 kilograms of heroin). Had the district
court declined to consider the four kilograms of heroin that
Bagcho was acquitted of distributing, the remaining amount
still would have fallen within the range for which a base offense
level of 34 applies. Id.; see also Bell, 808 F.3d at 928
(Kavanaugh, J., concurring) (“[F]ederal district judges have
power in individual cases to disclaim reliance on acquitted or
uncharged conduct.”).

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