United States v. Robert Nathan Alfaro

Robert Nathan Alfaro was sentenced for having illegally imported certain specified chemicals used in manufacturing a controlled substance. The district court applied a 14-level upward departure that was calculated using a sentencing guideline that did not govern Alfaro’s offense. Nor, at the time of the offense, did that guideline cover the chemical for which the departure was applied. Alfaro appeals the sentence, contending that the upward departure was unwarranted, was unreasonable in magnitude, and violated the ex post facto clause. He also submits that the district court acted improperly by calling and examining witnesses at the sentencing hearing. We vacate the sentence and remand for resentencing.

I. BACKGROUND

Alfaro was arrested in September 2001 and charged with having “knowingly and intentionally import[ed ] ... approximately 25.8 kilograms of red phosphorous and 100.25 kilograms of crystal iodine, ... knowing, intending, and having reasonable cause to believe that the chemicals would be used to manufacture a controlled substance,” in violation of 21 U.S.C. § 843 (a)(7). Alfaro pled guilty pursuant to a plea agreement, acknowledging that he had known the…