09-3324 U.S. v. Guarjardo-Martinez

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United States Court of Appeals
Sentencing
Prior arrests; preponderance of the evidence; harmless error

Although it was error for the district court to consider two prior arrests based solely on the fact of arrest, the error was harmless.

“As in similar cases where sentencing courts have considered prior arrests without objection, we find no plain error. The court did not rely solely on the arrests, and it is clear that even without the arrests, the judge would not have imposed a lower sentence. See, e.g., United States v. Walker, 98 F.3d 944, 948 (7th Cir. 1996) (finding no ‘reasonable likelihood that the judge would have given the defendant a lighter sentence had he ignored all the arrests that did not result in conviction’).

“The appellant argues that Walker is distinguishable because the defendant there had a lengthier and more serious criminal record than Guajardo, and the arrests in that case thus ‘fade into marginal significance.’ We do not believe Walker is distinguishable on that basis. While Guajardo had a significantly shorter criminal record than the defendant in Walker, the district judge in this case placed much more weight on the drug trafficking conviction. The first two arrests were in fact marginal in comparison.”

“If Guajardo had raised objections to reliance on the arrests at the time of sentencing, the judge could have easily made a finding that there was a preponderance of evidence to support reliance on the third arrest, and the government could have either supported or disavowed reliance on the first two arrests. The problem would have easily been corrected at the time. We see no reason to remand on this issue now because Guajardo has not shown that it was prejudicial or affected his substantial rights. There was no plain error.”

Affirmed.
09-3324 U.S. v. Guarjardo-Martinez
Appeal from the United States District Court for the Northern District of Illinois, Dow, J., Hamilton, J.

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