Sentencing — reasonableness

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United States Court of Appeals For the Seventh Circuit

Criminal

Sentencing — reasonableness

U.S.S.G. 4A1.3(a)(3) does not prohibit a judge from imposing an above-guideline sentence because of unadjudicated arrests.

“Section 3553(a)(5) does not mandate that the court follow the Commission’s policy statements. United States v. Reyes-Medina, 683 F.3d 837, 841–42 (7th Cir. 2012); United States v. Jackson, 547 F.3d 786, 793 (7th Cir. 2008); United States v. Haj-Hamed, 549 F.3d 1020, 1027 (6th Cir. 2008); United States v. Martin, 520 F.3d 87, 93 (1st Cir. 2008); United States v. Bradford, 500 F.3d 808, 812 (8th Cir. 2007); United States v. Bungar, 478 F.3d 540, 544 (3d Cir. 2007). Like the rest of the guidelines, § 4A1.3(a)(3) is advisory. United States v. Lucas, 670 F.3d 784, 791 (7th Cir. 2012); United States v. Johnson, 612 F.3d 889, 896 (7th Cir. 2010); Jackson, 547 F.3d at 793. Indeed, as a policy statement, § 4A1.3(a)(3) has always been nonbinding, and after Booker a policy statement is ‘“intended to be given even less consideration by sentencing judges.”’ Reyes-Medina, 683 F.3d at 841–42 (quoting United States v. Robertson, 648 F.3d 858, 859 (7th Cir. 2011)). Certainly a sentencing judge may choose to follow those policy statements post-Booker as a part of the § 3553(a) analysis, Lucas, 670 F.3d at 791; Johnson, 612 F.3d at 896, but the failure to do so is not grounds for reversal.”

Affirmed.

12-3684 U.S. v. Drain

Appeal from the United States District Court for the Southern District of Indiana, Barker, J., Sykes, J.