United States v. Edgar Lopez-Hernande ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3854
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
E DGAR L UDIN L OPEZ-H ERNANDEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 09 CR 312-1—George W. Lindberg, Judge.
A RGUED JULY 11, 2012 —D ECIDED JULY 27, 2012
Before P OSNER, M ANION, and T INDER, Circuit Judges.
P OSNER, Circuit Judge. The defendant, a 27-year-
old Mexican citizen, pleaded guilty to being in the
United States without permission after he had been
deported, 8 U.S.C. § 1326(a), and was sentenced to
71 months in prison, the top of the applicable guide-
lines range (the bottom is 57 months). His principal
ground of appeal is that the judge should not have taken
2 No. 11-3854
into account, in deciding to sentence him at the top of
the range, his 41 arrests that had not resulted in convic-
tions. He did have five previous convictions, including
one for attempted armed robbery —and it was an
attempt only because the wallet that the defendant and
an accomplice took from their victim at gunpoint turned
out to be empty. His prior convictions contributed to
placing him in the criminal history category (IV)
that generated the 57-71 month guidelines range.
In deciding to sentence the defendant at the top of
the range the district judge refused to “ignore the 41
arrests that did not lead to convictions and were
for offenses that included possession of cannabis, reck-
less conduct, negligent driving, no driver’s license, no
liability insurance, domestic battery, aggravated assault,
aggravated intimidation, soliciting unlawful business,
reckless damage to property, disorderly conduct, and
more than a dozen arrests for criminal trespass.” He
added that “the particular sentence was imposed for
the reasons stated in the attached transcript and, more
specifically, for the extraordinary criminal history, espe-
cially the number of arrests for serious offenses that
did not lead to convictions.” The rest of his sen-
tencing statement is the usual boilerplate about his
having considered the statutory sentencing factors. 18
U.S.C. § 3553(a).
The defendant argues —and the government, confessing
error, agrees (perfunctorily and unconvincingly)—that
the judge should not have considered the arrests
without determining that the defendant had actually
No. 11-3854 3
engaged in the conduct for which he had been arrested.
We had said in United States v. Guajardo-Martinez, 635
F.3d 1056, 1059 (7th Cir. 2011), that “a sentencing court
may not rely on the prior arrest record itself in deciding
on a sentence.” See also United States v. Torres, 977 F.2d
321, 330 and n. 4 (7th Cir. 1992); United States v. Johnson,
648 F.3d 273, 276-77 (5th Cir. 2011); United States v. Berry,
553 F.3d 273, 284 (3d Cir. 2009). But the word we’ve
italicized is key, because our opinion quickly adds that
“the court may still consider the underlying conduct
detailed in arrest records where there is a sufficient
factual basis for the court to conclude that the conduct
actually occurred.” 635 F.3d at 1059; see also United
States v. Berry, supra, 553 F.3d at 284; United States v.
Hawk Wing, 433 F.3d 622, 628 and n. 4 (8th Cir. 2006)
(collecting cases), abrogated on other grounds in Tapia
v. United States, 131 S. Ct. 2382 (2011). When “police
reports . . . supply ‘underlying facts’ which at least argu-
ably contain reliable information about [the defen-
dant’s] prior similar adult conduct” and the defendant
“failed to object to underlying facts,” the judge can take
account of those facts in deciding what sentence to
impose. United States v. Terry, 930 F.2d 542, 546 (7th Cir.
1991); see also United States v. Guajardo-Martinez, supra, 635
F.3d at 1059-60; United States v. Turner, 604 F.3d 381, 385
(7th Cir. 2010); United States v. Robertson, 568 F.3d 1203,
1212 (10th Cir. 2009); United States v. Dixon, 318 F.3d
585, 591 (4th Cir. 2003); United States v. Williams, 989
F.2d 1137, 1142 (11th Cir. 1993) (per curiam).
Of the defendant’s 41 arrests, 26 list merely the date, the
defendant’s age, the charge (reckless damage to property,
4 No. 11-3854
knowingly damaging property, soliciting unlawful busi-
ness, possession of cannabis, disorderly conduct,
battery, gang activity, and —the most frequent offense
for which the defendant was arrested —criminal trespass
to land), the agency making the arrest (always the
Chicago Police Department), and the disposition (nolle
prossed, screened out, released to parent, unknown,
referred to court, or stricken off with leave to reinstate).
No cases of mistaken identity are listed. With regard
to each of the remaining 15 arrests, there is a summary
either of a petition for an adjudication of wardship
(4 arrests) or of the police department’s arrest report
(the other 11 arrests). We quote four of the summaries:
(1) “defendant was a passenger in a vehicle stopped for
a minor traffic violation. Upon approaching the
vehicle, officers detected strong odor of cannabis at
which time the defendant freely admitted to having
possession of one cannabis cigarette. Further investiga-
tion revealed one cigar rolled with a crushed green
leafy substance, suspect cannabis;” (2) “the defendant
knowingly remained on the land of the complainant
Jill Kuneth after receiving notice to depart several
times;” (3) “the defendant was identified by the victim
Thyandrea Adams as the individual who threw a
glass bottle at the windshield of her automobile while
she was attempting to park;” (4) “officers observed
the defendant in the middle of an intersection
yelling ‘SGD’ [Spanish Gangster Disciples] and making
gang signs.” The remaining summaries are similar.
Since the defendant does not question the accuracy
of any of the summaries, the judge was entitled to
No. 11-3854 5
take account of at least the 15 arrests for which there are
summaries in deciding whether to sentence the defendant
at the top of the guidelines range. True, the only figure
in the judge’s sentencing statement for the number
of arrests is 41; and when an arrest report is not sum-
marized in the presentence investigation report it is
difficult to know what weight to give the arrest. All
the unsummarized arrests, moreover, took place
before the defendant reached the age of 17—a fact the
judge didn’t mention either. The presentence investiga-
tion report does, however, summarize the wardship or
police reports for all the defendant’s arrests after he
turned 17 and all the arrests mentioned by the judge
except those for disorderly conduct, reckless damage
to property, soliciting unlawful business, 13 of his
16 arrests for criminal trespass to property, and 1 of
his 5 arrests for possession of cannabis.
Besides not questioning the accuracy of the summaries,
the defendant does not suggest that the 26 arrests
for which there are no summaries were ungrounded
in facts. And the disposition column in the list of
arrests reveals no systematic difference in how the
two classes of arrest were handled.
In light of the defendant’s failure to challenge
the accuracy of anything in his lengthy arrest record,
the judge was entitled to assume that the 41 arrests con-
sidered as a whole, when coupled with the defendant’s
five convictions, gave a more accurate picture of the
likelihood of recidivism than the convictions and arrest
summaries alone and justified a sentence at the top
6 No. 11-3854
of the guidelines range. Because the range is only
14 months —57 to 71 —a mid-guidelines sentence would
be 64 months, so in effect the judge gave the defendant
a seven-month sentencing bonus on account of the
41 arrests that did not result in convictions (or, as far as
appears, in exonerations). That increase can’t be
thought excessive.
The defendant argues that the judge couldn’t allow
any of the arrests that did not result in convictions
to influence the sentence —that due process of law
required him to find by a preponderance of the evi-
dence that the defendant had actually committed the
crimes for which he had been arrested. That argument
makes no sense when the defendant failed to challenge
the accuracy of any arrest report or for that matter
the factual basis of any arrest for which there is no
report summary. Because not all arrests even of the guilty
result in prosecution —police, prosecutors, and courts
lack the resources—the sentencing guidelines do not
forbid a judge to consider a defendant’s arrest record
in deciding where to sentence within the applicable guide-
lines range, as happened here. Section 4A1.3(a)(3) of
the guidelines prohibits consideration of a “prior arrest
record itself” only “for purposes of an upward departure”
as distinct from imposition of a sentence within or
below the applicable range. See also United States v.
Brown, 516 F.3d 1047, 1053 (D.C. Cir. 2008).
We have no quarrel with the statement in United
States v. Berry, supra, 553 F.3d at 281, that “unsup-
ported speculation about a defendant’s background is
No. 11-3854 7
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.
So much for the arrests; one other claim by the defendant
requires discussion —that he should have been given
a lenient sentence for illegally reentering the United States
because, though he is not a citizen, he had moved to
the United States at the age of 3 and so has undergone
“cultural assimilation” —in other words has become in
a practical sense, though not in law, an American —and
so can hardly have been expected to remain in
8 No. 11-3854
Mexico when he was deported. But a “departure based
on cultural assimilation” is a mitigating factor in sen-
tencing a defendant charged with illegal reentry only
when “such a departure is not likely to increase the risk
to the public from further crimes of the defendant.”
U.S.S.G. § 2L1.2, Application Note 8(c). Given our defen-
dant’s criminal record stressed by the district judge,
which included both arrests and a conviction for
crimes that he committed after his illegal reentry, there
was no basis for a cultural-assimilation adjustment.
The judgment is
A FFIRMED.
7-27-12