Sentencing — prior arrests

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United States Court of Appeals For the Seventh Circuit

Criminal

Sentencing — prior arrests

It was not error for the district court at sentencing to consider that the defendant had 41 arrests not leading to conviction.

“We have no quarrel with the statement in United States v. Berry, supra, 553 F.3d at 281, that ‘unsupported speculation about a defendant’s background is problematic whether it results in an upward departure, denial of a downward departure, or causes the sentencing court to evaluate the § 3553(a) factors with a jaundiced eye,’ or with the statement that a ‘bare arrest record’ is an inadequate ground for a sentence adjustment. Id. at 284, But the court in Berry added ‘that there may be situations where the number of prior arrests, and/or the similarity of prior charges to the offense of conviction, becomes so overwhelming and suggestive of actual guilt that they become exceedingly difficult to ignore,’ citing with approval a case—in fact a case of ours, United States v. Walker, 98 F.3d 944, 948 (7th Cir. 1996)—in which the court ‘thought that 23 prior arrests was probative of underlying criminality.’ United States v. Berry, supra, 553 F.3d at 281. See also United States v. Johnson, supra, 648 F.3d at 278 (citing with approval the passage we just quoted from Berry). Compare United States v. Zapete-Garcia, 447 F.3d 57, 60-61 (1st Cir. 2006), where we read that ‘although a series of past arrests might legitimately suggest a pattern of unlawful behavior even in the absence of any convictions, Zapete was arrested only a single time, more than a decade ago.’ In this case we have 41 previous arrests.”

Affirmed.

11-3854 U.S. v. Lopez-Hernandez

Appeal from the United States District Court for the Northern District of Illinois, Lindberg, J., Posner, J.