United States v. Lovoyne Drain

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-3684
UNITED STATES OF AMERICA ,
Plaintiff-Appellee,
v.
LOVOYNE DRAIN ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:11CR00096-001 — Sarah Evans Barker, Judge.
ARGUED JUNE 13, 2013 — DECIDED JANUARY 21, 2014
Before MANION , SYKES, and TINDER, Circuit Judges.
SYKES, Circuit Judge. Lovoyne Drain appeals his above-
guidelines sentence for possession of a firearm by a felon,
18 U.S.C. § 922(g)(1). He argues that the district judge ran afoul
of U.S.S.G. § 4A1.3(a)(3) and the Due Process Clause by
considering his record of unadjudicated arrests, many for
offenses involving drugs or violence. But § 4A1.3(a)(3), like
2 No. 12-3684
every provision of the sentencing guidelines, is advisory. And
the judge did not violate Drain’s right to due process by taking
account of his arrest history as part of her evaluation of the
sentencing factors under 18 U.S.C. § 3553(a). Accordingly, we
affirm Drain’s sentence.
I. Background
In February 2010 Drain sold a rifle engraved with the
warning “Law Enforcement Use Only” to a government
informant. The rifle had been stolen from an FBI vehicle a few
months earlier. Later, in July 2010, police officers went to
Drain’s home to execute a warrant for his arrest on charges of
dealing cocaine. They observed drug paraphernalia in the
home, obtained a search warrant for the residence, and
recovered a loaded Beretta 9mm pistol with an obliterated
serial number. Drain’s fingerprints were found on bullets in the
gun’s magazine. The officers also discovered seven injured and
malnourished pit bulls held in squalid conditions at Drain’s
residence.
After his arrest Drain confessed to federal agents that he
had fired the stolen FBI rifle and knew it belonged to law
enforcement, but he insisted that he was only hiding the
weapon for an acquaintance. In a later interview, Drain initially
denied that he had ever handled the Beretta—or, indeed, that
he possessed any guns at his residence—but changed his story
and said he was holding that gun for a jailed acquaintance.
After he was confronted with the fingerprint analysis, Drain
admitted loading 9mm ammunition into the Beretta and
No. 12-3684 3
bragged that his fingerprints probably are on every gun in
Indiana.
Drain was charged with two counts of unlawful possession
of a firearm by a felon, see 18 U.S.C. § 922(g)(1), and one count
of unlawful possession of ammunition by a felon, see id.§ 924(a)(2). He eventually pleaded guilty to a single violation
of § 922(g)(1) based on his possession of the Beretta. The
probation officer who drafted Drain’s presentence report
calculated a total offense level of 18 and a criminal-history
category of III, resulting in a guidelines imprisonment range of
33 to 41 months. Drain’s criminal-history score did not reflect
his 3 juvenile offenses, 6 of his 10 adult convictions, a pending
drug case, or 17 unadjudicated arrests since 1993.1 Accordingly,
the probation officer suggested that an “upward departure”
under U.S.S.G. § 4A1.3(a)(1) might be appropriate because
Drain’s criminal-history category understated his extensive
criminal conduct, much of which involved drugs or violence.
Although the presentence report described the facts
underlying Drain’s adult convictions and juvenile
adjudications, the events underlying the unadjudicated arrests
were not described. Drain objected to the probation officer’s
suggestion, arguing that departures are obsolete after United
1
The presentence report identified 10 adult convictions, although several
of those were grouped together because they were adjudicated
simultaneously. The report listed 20 “other arrests.” Two of the arrests
resulted in acquittals, and a third was “waived for adult prosecution”
(resulting in two of the adult convictions), so by our count Drain has
17 unadjudicated arrests.
4 No. 12-3684
States v. Booker, 543 U.S. 220 (2005), and that his criminal-
history category adequately accounted for his criminal history.
At sentencing the district judge adopted the guidelines
calculations from the presentence report without further
objection. After Drain’s allocution, the judge questioned him at
length about his extensive criminal history given his relative
youth (33 years old) and about the role drugs have played in
his life. We set forth the colloquy at length here because it
forms the basis for the arguments Drain raises on appeal.
THE COURT: One of the complicating factors
here is your substantial criminal history, and the
fact that you’ve had obviously so much trouble
staying on the straight and narrow.
THE DEFENDANT: Yes, ma’am.
THE COURT: You’ve had—you’ve been
arrested on 31 separate occasions, which is about
one a year since you were born.2
THE DEFENDANT: Yes, ma’am.
THE COURT: And you didn’t even, I assume,
get drawn into criminal behavior till you were a
teenager. So you’re picking them up twice a year
about, right?
THE DEFENDANT: (Witness nodded head.)
2
The district court seems to have miscounted 31 total arrests and 12 since
2008, though both numbers are in the ballpark.
No. 12-3684 5
THE COURT: So there’s some disconnect that
keeps you from living within the law. …
The only thing that society says is conform
your behavior to the legal requirements. And
you haven’t been able to do that. Right?
THE DEFENDANT: Yes, ma’am.
….
THE COURT: Why isn’t this a lesson you’ve
been able to learn for yourself?
THE DEFENDANT: I guess getting caught up
in the streets, I guess, and doing the drugs that I
was doing.
….
THE COURT: The presentence report says
that marijuana is your drug of choice, an every
day pursuit, right?
THE DEFENDANT: Yes, ma’am.
THE COURT: But probably cocaine, too,
because you’ve got a prior conviction for
possessing cocaine, right?
THE DEFENDANT: Yes, ma’am.
THE COURT: Where are you getting the
money to buy those drugs?
THE DEFENDANT: Doing wrong things.
….
6 No. 12-3684
THE COURT: Selling drugs?
THE DEFENDANT: Yes, ma’am.
THE COURT: So you had to traffic in drugs
in order to get enough for yourself, right?
THE DEFENDANT: I guess.
THE COURT: Well, I guess, or is the answer
yes?
THE DEFENDANT: Yes.
THE COURT: Is that where you got the
money for your drugs?
THE DEFENDANT: Yes.
THE COURT: Were those dogs that were
found, those pit bulls that were found on your
property, yours?
THE DEFENDANT: Yes.
….
THE COURT: So you had to buy the dog
food?
THE DEFENDANT: Yes, ma’am.
THE COURT: You weren’t manufacturing the
dog food, were you?
THE DEFENDANT: No, ma’am.
THE COURT: So the money for that came
from drugs, right?
No. 12-3684 7
THE DEFENDANT: Yes, ma’am.
THE COURT: Did you contribute to the
support of your children with food and clothing
and that sort of thing or was somebody else
having to do that?
THE DEFENDANT: I did.
THE COURT: Was that from drugs?
THE DEFENDANT: Yes, ma’am.
THE COURT: You had a serious problem,
didn’t you?
THE DEFENDANT: Yes, ma’am.
THE COURT: And actually, that serious
problem just runs all the way through your
criminal history, doesn’t it?
THE DEFENDANT: Yes, ma’am.
….
THE COURT: [B]asically, you’ve not ever
been employed?
THE DEFENDANT: No, ma’am.
THE COURT: So whatever money you had
was from drug dealing, right?
THE DEFENDANT: Yes, ma’am.
….
THE COURT: Where did you get the [gun]
you pled guilty to?
8 No. 12-3684
THE DEFENDANT: Off the streets.
THE COURT: I don’t know what that means,
“off the streets.” It sounds like it fell from
heaven. Where did it come from, Mr. Drain?
THE DEFENDANT: I bought it off the streets.
THE COURT: You bought it from somebody?
THE DEFENDANT: Yes, ma’am.
….
THE COURT: It was probably a hundred
dollars? Where did you get the hundred dollars?
THE DEFENDANT: Drug money, Your
Honor.
….
THE COURT: Why did you want the gun?
THE DEFENDANT: I guess for protection.
THE COURT: What did you need protection
from? Are there wild animals in your
neighborhood?
THE DEFENDANT: No, ma’am.
THE COURT: It’s for drugs, wasn’t it? You’re
in the drug business. You wanted the gun to
protect your drug business because, of course,
it’s illegal, and you can’t call the police if there’s
some threat. You have to protect yourself, right?
THE DEFENDANT: Yes, ma’am.
No. 12-3684 9
….
THE COURT: Since 2008, according to the
presentence report, you’ve had 12 different
arrests, since 2008. And you’ve been incarcerated
two of those years on this, 20 months didn’t you
say?
THE DEFENDANT: Yes, ma’am.
THE COURT: So just about two years. You
were a busy law breaker.
THE DEFENDANT: Yes, ma’am.
THE COURT: Part of what I have to take into
account here in fashioning a sentence, Mr. Drain,
is what sort of sentence is necessary to protect
the public on the chance you don’t turn around
here.
So it’s partly about getting you back in a
good condition, but it’s also about protecting the
public from the behaviors of a person who’s
shown himself to be nothing but a law violator.
That is the consistent pattern: Drug user and law
violator.
Defense counsel objected to the court’s consideration of
Drain’s unadjudicated arrests because the presentence report
lacked any description of the conduct underlying the
17 unadjudicated arrests. The judge apparently misunderstood
and thought counsel was objecting to consideration of any of
10 No. 12-3684
Drain’s arrests, including those that had resulted in
convictions. That misunderstanding led to this exchange:
THE COURT: But he has five felony
convictions—
MR. DAZEY: That is certainly fair game.
THE COURT: —among them, and 17 of the
arrests, the probation officer has done the
calculations so I’m just reading from paragraph
103 of the presentence report, that 17 of the
arrests are related to drugs or violent activity.
So I mean it’s not “Just 31 arrests, don’t pay
any attention, Judge,” because packed into those
31 separate occasions, including the instant
offense, are some troublesome facts.
After this exchange counsel dropped the subject of the
unadjudicated arrests.
The government argued for a prison sentence at the top of
the guidelines range, noting that the district court had “fairly
captured the fact that this number of arrests, even without
having some of the facts behind them, speaks in a way that the
[c]ourt is entitled to consider with respect to the history and
characteristics of this defendant.”
Before imposing sentence, the judge addressed the factors
in 18 U.S.C. § 3553(a) at some length, eventually concluding
that the guidelines range of 33 to 41 months didn’t fairly reflect
Drain’s criminal lifestyle, admitted drug conduct, and violent
propensities. The judge also took note of the condition of the
No. 12-3684 11
dogs recovered from Drain’s residence and his inconsistent
statements about how he obtained the Beretta. Finally, the
judge stressed that Drain had admitted possessing the stolen
FBI rifle and bragged about handling many other firearms. The
judge imposed a sentence of 57 months, 16 months above the
guidelines range. The judge asked Drain’s lawyer if he had any
legal objection to the sentence or needed any additional
explanation of the reasons behind it; counsel said he did not.
II. Discussion
On appeal Drain first argues that the district court violated
the policy statement in § 4A1.3(a)(3) of the guidelines by
relying on his arrest record to impose a sentence above the
guidelines range. The government initially responds by
arguing that the judge’s remarks about Drain’s arrests were
limited to the colloquy with Drain and did not influence her
consideration of the § 3553(a) factors. The government’s point
is difficult to square with the sentencing transcript. The judge
commented on Drain’s arrest history before imposing sentence,
specifically noting that 17 of his arrests were for offenses that
involved drugs or violence and emphasizing his pattern of
criminality. We think it’s clear that the court took into account
Drain’s history of unadjudicated arrests in arriving at the
above-guidelines sentence.
That doesn’t mean that Drain’s challenge to his sentence is
a winner. The policy statement in § 4A1.3(a)(3) says that “[a]
prior arrest record itself shall not be considered for purposes
of an upward departure.” U.S.S.G. § 4A1.3(a)(3).
Acknowledging that the sentencing guidelines are advisory,
12 No. 12-3684
see Booker, 543 U.S. at 245, Drain nevertheless insists that the
sentencing court was required to follow § 4A1.3(a)(3) and
refrain from considering his arrest record to impose an above-
guidelines sentence. This outcome, he says, is dictated by
18 U.S.C. § 3553(a)(5), which instructs the court to consider the
Sentencing Commission’s policy statements.
But consideration does not mean adherence.
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.3
3
In his reply brief, Drain argues that the district court’s failure to follow
§ 4A1.3(a)(3) “prevented the proper calculation of the guideline range.”
(continued...)
No. 12-3684 13
Drain also argues that the district court violated his Fifth
Amendment right to due process by sentencing him based on
unfounded speculation that his unadjudicated arrests stemmed
from actual criminal activity. Due process requires that courts
base their sentencing decisions on reliable information. Lucas,
670 F.3d at 792. In United States v. Guajardo-Martinez, 635 F.3d
1056 (7th Cir. 2011), we noted that considering unadjudicated
arrests “can present a due process problem if the arrests do not
reflect reliable information of wrongdoing.” Id. at 1059. After
all, an arrest alone does not necessarily mean guilt. United
States v. Terry, 930 F.2d 542, 546 (7th Cir. 1991). Citing
§ 4A1.3(a)(3), we said in Guajardo-Martinez that “[a] sentencing
court may not rely on the prior arrest record itself in deciding
on a sentence or in imposing an upward departure.”4 635 F.3d
at 1059.
3
(...continued)
That contention is frivolous. Section 4A1.3 concerns sentencing outside the
guidelines range and has nothing to do with the calculation of the range.
See U.S.S.G. § 4A1.3 cmt. background (“This policy statement authorizes the
consideration of a departure from the guidelines … .”).
4
This reference to “imposing an upward departure” is a throwback to old
usage when the guidelines were mandatory. We reiterate, as we have many
times before, that “formal departure analysis is obsolete.” United States v.
Brown, 732 F.3d 781, 786 (7th Cir. 2013). The district court “can still take
guidance from the departure provisions and apply them by way of analogy
when assessing the § 3553(a) factors.” United States v. Lucas, 670 F.3d 784,
791 (7th Cir. 2012). But “analogizing to departures is just one way for the
district court to explain a sentence; it has no legal force or effect.” Brown,
732 F.3d at 786.
14 No. 12-3684
But we have also held that a substantial history of arrests,
especially if they are similar to the offense of conviction, can be
a reliable indicator of a pattern of criminality, suggesting a
recidivism risk, and may be considered in weighing the
sentencing factors under § 3553(a). See United States v. Lopez-
Hernandez, 687 F.3d 900, 904 (7th Cir. 2012) (41 similar arrests);
United States v. Walker, 98 F.3d 944, 948 (7th Cir. 1996)
(23 similar arrests). But see United States v. Johnson, 648 F.3d 273,
278 (5th Cir. 2011) (concluding that five similar arrests, without
the underlying facts, were not indicative of actual guilt); United
States v. Berry, 553 F.3d 273, 284 (3d Cir. 2009) (concluding that
a “couple” of minor arrests did not suggest actual guilt); United
States v. Zapete-Garcia, 447 F.3d 57, 61 (1st Cir. 2006)
(concluding that a single prior arrest was improperly
considered). Drain had adult convictions for possessing cocaine
and marijuana, carrying a gun, and resisting law enforcement.
He also had juvenile adjudications for battery. Thirteen of the
unadjudicated arrests were for those very crimes, and Drain
does not dispute that the arrests occurred; nor does he
challenge their factual basis. This arrest history thus makes
Drain’s case one of those “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.” Berry,
553 F.3d at 284, cited with approval in Lopez-Hernandez, 687 F.3d
at 904.
During oral argument, Drain’s counsel suggested that a
statement in Lopez-Hernandez supports his position that the
policy statement in § 4A1.3(a) applies to all above-guidelines
sentences. In that case we observed that § 4A1.3(a) by its terms
No. 12-3684 15
does not apply to sentences within or below the guidelines
range. Lopez-Hernandez, 687 F.3d at 903. We do not see how this
statement helps Drain. As we have repeatedly explained, the
departure provisions in Chapter 4 of the guidelines manual are
no more binding on the sentencing court than any other
provision in the guidelines. See Lucas, 670 F.3d at 791; Jackson,
547 F.3d at 793. We review all sentences—whether above,
within, or below the recommended guidelines range—for
reasonableness under a deferential abuse-of-discretion
standard. See Jackson, 547 F.3d at 792.
The sentencing court did not abuse its discretion here.
Although the presentence investigation report did not describe
the underlying facts of the unadjudicated arrests, the district
court could reasonably rely on Drain’s long arrest record in
combination with his adjudicated criminal history as a part of
its holistic evaluation of the § 3553(a) factors. The relevance
and reliability of the arrest record was bolstered by Drain’s
own acknowledgement at sentencing that he had a long and
unbroken history of criminal conduct.
In his colloquy with the judge, Drain admitted that drug
dealing had been his sole livelihood as an adult, that drug use
had been an “every day pursuit,” and that he acquired his guns
to protect his drug business. These admissions supplied an
adequate factual predicate for the court to consider the string
of arrests, among all the other sentencing factors, to arrive at a
reasonable sentence. See United States v. Ruzzano, 247 F.3d 688,
698 (7th Cir. 2001) (“Although the district court did refer to
Ruzzano’s investors as ‘victims,’ this was not improper because
Ruzzano admitted committing fraud in the plea agreement.”);
16 No. 12-3684
Terry, 930 F.2d at 545 (“Examples of reliable information of
criminal conduct not resulting in a conviction include
admissions by the defendant that he committed criminal acts
for which he was never charged … .”). Collectively, this
information allowed the court to draw a reliable negative
inference about his risk of recidivism. See Lopez-Hernandez,
687 F.3d at 903.
AFFIRMED .