In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3324
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JUAN G UAJARDO -M ARTINEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:09-CR-00179-1—Robert M. Dow, Jr., Judge.
A RGUED F EBRUARY 10, 2011—D ECIDED A PRIL 4, 2011
Before M ANION, E VANS, and H AMILTON, Circuit Judges.
H AMILTON, Circuit Judge. Juan Guajardo-Martinez, a 34-
year-old Mexican national, pled guilty to illegal reentry
of a removed alien subsequent to a conviction for com-
mission of an aggravated felony, in violation of 8 U.S.C.
§§ 1326(a) and (b)(2). Guajardo was given a below-guide-
lines sentence and has appealed. We rejected defense
counsel’s request to withdraw as appointed counsel
pursuant to Anders v. California, 386 U.S. 738 (1967), and
2 No. 09-3324
ordered briefing as to the district court’s consideration
of the defendant’s prior arrests that led to neither a con-
viction nor a finding by the district court that the
alleged unlawful conduct was proven by a preponderance
of the evidence. Guajardo also argues on appeal that the
district court erred in not granting a lower sentence
based on the fact that the Northern District of Illinois
does not have a “fast-track” program, because the judge’s
decision was premised on the appellant’s criminal rec-
ord, including the prior arrests not leading to convic-
tion. While the district court erred in considering two
of the defendant’s three arrests not leading to convic-
tion, we find that there was no prejudice to defendant
and no plain error. We affirm the district court’s judgment.
Facts
Guajardo apparently first entered the United States
with his mother on a tourist visa in August 1995, when
he was 18 years old, to visit an older sister who was
living in Illinois. He overstayed his visa, found work, and
eventually married. In 2000, he was arrested and con-
victed in state court of possession with intent to deliver
more than 5,000 grams of cannabis. He was sentenced
to four years in prison. He was released on parole in
2002 and was deported to Mexico. Sometime later in
2002, Guajardo illegally returned to the United States.
He found employment as a carpenter and a foreman.
He and his wife had a child and later divorced.
In February 2009, Guajardo was arrested for driving
under the influence of alcohol. After it was discovered
No. 09-3324 3
that he was living unlawfully in the United States, he
was taken into custody by Immigration and Customs
Enforcement agents. On May 27, 2009, Guajardo pled
guilty to illegal reentry.
The Presentence Investigation Report calculated
Guajardo’s Sentencing Guidelines range as 46 to 57
months. The range was based on a total offense level of 21,
including a 16-level enhancement because of the drug
trafficking offense in 2000, and a criminal history category
of III based on a total of 6 criminal history points.
The presentence report also documented numerous
other arrests, minor convictions, and warrants for
Guajardo’s arrest. The adult criminal convictions were
for operating an uninsured motor vehicle (in 1997 and
1998) and for driving without a license (in 1997, 1998, and
1999). In addition, the presentence report listed three
arrests for driving under the influence of alcohol (in
1999, 2000, and 2009) not leading to conviction, which are
the subject of this appeal, and two pending charges for
domestic battery incidents (both in 2001). The defendant
made no objections at sentencing with respect to the
calculation of the guidelines nor to any of the factual
findings in the presentence report. The district court
sentenced Guajardo to a below-guidelines sentence of
40 months in prison.
Analysis
Appellant Guajardo argues on appeal that the district
judge erred both in relying on prior arrests not leading to
4 No. 09-3324
conviction and in basing his decision not to consider
the absence of a “fast track” program in the Northern
District of Illinois on the appellant’s criminal record,
including the prior arrests.
Because the appellant did not raise these objections
during the sentencing hearing, we review the decisions
for plain error. United States v. Longstreet, 567 F.3d 911,
928 (7th Cir. 2009) (citations omitted). To establish plain
error, the defendant must show: “(1) an error; (2) that
is plain; (3) that affected his substantial rights; and
(4) that seriously affects the fairness, integrity, or public
reputation of the judicial proceedings.” United States
v. Montgomery, 390 F.3d 1013, 1017 (7th Cir. 2004). We
find no plain error.
I. Arrests Not Leading to Conviction
A district judge has wide discretion to consider a defen-
dant’s background at sentencing. See 18 U.S.C. § 3661
(“No limitation shall be placed on the information con-
cerning the background, character, and conduct of a
person convicted of an offense which a court of the
United States may receive and consider for the purpose
of imposing an appropriate sentence.”). There is a con-
stitutional limit, however. The Due Process Clause of the
Fifth Amendment requires that information used for
sentencing be accurate. United States v. Tucker, 404 U.S.
443, 447 (1972); see also Townsend v. Burke, 334 U.S. 736,
741 (1948) (Fourteenth Amendment); United States ex rel.
Welch v. Lane, 738 F.2d 863, 864 (7th Cir. 1984) (Fourteenth
No. 09-3324 5
Amendment). The judge may consider information only
if it has “sufficient indicia of reliability to support its
probable accuracy.” United States v. Hankton, 432 F.3d
779, 790 (7th Cir. 2005), quoting United States v.
Robinson, 164 F.3d 1068, 1070 (7th Cir. 1999).
These principles lay a well-known constitutional trap
in federal sentencing. A presentence report is required to
report both prior convictions and prior arrests.1 Although
the presentence report must provide this information
about arrests not leading to conviction, a judge’s con-
sideration of these arrests can present a due process
1
The monograph instructing probation officers how to
prepare a presentence report says that arrests alone are not
sufficient evidence of criminal conduct, but may prompt
further inquiries that can lead to a listing of “Other Criminal
Conduct” if there is “reliable and persuasive information that
the defendant committed a crime.” Probation and Pretrial
Services Monograph 107, Presentence Investigation Report
§ 335.60. The monograph further instructs the officer to
provide details on pending criminal charges, § 335.70, and
it says regarding other arrests:
Report all other arrests of the defendant, unless the arrest
was based on mistaken identity. Report the date of
arrest, charge(s), agency, and disposition. This informs
the court about the defendant’s contact with law enforce-
ment authorities. Because no reliable information estab-
lishes that the defendant committed a criminal act, such
information may not be considered for a departure and
is separated from Other Criminal Conduct.
Id., § 335.80.
6 No. 09-3324
problem if the arrests do not reflect reliable information
of wrongdoing. Hankton, 432 F.3d at 790 (“defendant
has the due process right to be sentenced on the basis
of accurate information”). A sentencing court may not
rely on the prior arrest record itself in deciding on a
sentence or in imposing an upward departure. U.S.S.G.
§ 4A1.3(a)(3). But the court may still consider the under-
lying conduct detailed in arrest records where there is a
sufficient factual basis for the court to conclude that the
conduct actually occurred. See United States v. Torres, 977
F.2d 321, 330 n.4 (7th Cir. 1992) (citation omitted) (“while
arrest record alone will not justify a departure, detailed
police investigation reports may supply reliable infor-
mation of prior similar adult criminal conduct”); United
States v. Terry, 930 F.2d 542, 546 (7th Cir. 1991) (finding
that court may consider factual circumstances of prior
arrests where presentence report contained description
of underlying conduct and defendant did not object to
the presentence report’s account of the facts); see also
United States v. Turner, 604 F.3d 381, 385 (7th Cir. 2010)
(“When a court relies on information contained in a
presentence report, the defendant bears the burden of
showing that the presentence report is inaccurate or
unreliable.”) (citations and quotations omitted).
While we find that the district court erred in con-
sidering two out of three of Guajardo’s arrests, for which
there was inadequate information in the presentence
report, we conclude that there was no plain error.
Guajardo has not shown that he was prejudiced by the
district judge’s consideration of the arrests. We base
No. 09-3324 7
this conclusion on the below-guidelines sentence, the
district judge’s consideration of Guajardo’s criminal rec-
ord as a whole, and the weight the district court clearly
gave to his more serious drug trafficking conviction.
The presentence report for Guajardo listed three
arrests—in 1999, 2000, and 2009—for driving under the
influence of alcohol. None of those arrests led to a con-
viction. The third case was still pending when the proba-
tion officer prepared the presentence report. The gov-
ernment concedes that the district judge erred in con-
sidering and referring to the first two arrests. The
presentence report listed no details about those first two
arrests, and there was no basis on which the judge
should have considered them, which the judge would
have recognized if the issue had been raised.
As to the third arrest, we agree with the government
that the district judge was justified in considering the
factual circumstances of the arrest. Those circumstances
were detailed in the presentence report and were not
disputed by the defendant. See United States v. Aviles-
Solarzano, 623 F.3d 470, 475 (7th Cir. 2010), citing Fed. R.
Crim. P. 32 (i)(3)(A) (“At sentencing, the court may
accept any undisputed portion of the presentence report
as a finding of fact.”). The presentence report summarized
the police arrest report for the third arrest, stating that
Guajardo was pulled over by the police because he
was driving in and out of the northern curbside lane.
Guajardo provided the police officer with false identifica-
tion in the form of a driver’s license with a fake name
and the wrong birthdate. He admitted that he had been
8 No. 09-3324
drinking, and he was arrested for driving under the
influence. The report documented that he “emanated a
strong odor of alcohol and his eyes were bloodshot
and watery and his eyelids were droopy.” This report
gave the court sufficient grounds for finding the
defendant was actually driving under the influence, if the
issue had been raised. The district judge was justified in
using the uncontested facts of this arrest as reported in
the presentence report in his consideration of Guajardo’s
sentence. There was also no error, for example, in
the judge’s conclusion that the defendant’s record
included “some suggestion of . . . irresponsible alcohol
consumption and driving.”
As to the first two arrests, under plain error review, after
finding that there was a “clear or obvious” error, United
States v. Shearer, 379 F.3d 453, 456 (7th Cir. 2004), we will
not reverse unless we find that the error “affected the
defendant’s substantial rights,” United States v. Trennell,
290 F.3d 881, 887 (7th Cir. 2002). We will then reverse
the decision only if the defendant also shows that the
error “seriously [affected] the fairness, integrity, or
public reputation of the judicial proceedings.” See Mont-
gomery, 390 F.3d at 1017. A review of the district judge’s
discussion of the defendant’s sentence demonstrates
that any error in considering the defendant’s arrests
was not prejudicial and thus was not plain error. The
judge did not consider those two arrests as independent
bases for the sentence. His references to the first two
arrests were always in the context of a broader discus-
sion of the defendant’s criminal record, which included
a serious drug trafficking conviction and the circum-
No. 09-3324 9
stances of the third driving-under-the-influence arrest
that the district judge was justified in considering:
And I considered the low end of the Guideline range,
and I think that the 40 months is necessary because
of the prior criminal history. I think if this were a drug
use conviction instead of drug trafficking, if there
weren’t the DUI convictions 2 and the false identifica-
tion, if there were various things like that [ ] absent
from the record and all of those things were absent
from the record, I might have been able to see my
way clear to a more radical departure.
The district judge made it sufficiently clear that even if
the defendant had only one driving-under-the-influence
arrest, he would not have further reduced the sentence
in light of the drug trafficking conviction, which he
mentioned first, emphasized, and clearly thought was
the most important part of the defendant’s criminal record:
He doesn’t have the kind of lengthy criminal record
that I sometimes see here, I don’t see any evidence
of gang involvement here, but what we do have is
a prior conviction that was very serious. It’s not a
drug use offense, it’s a drug trafficking offense, and
it carried a 4-year prison term.
It was only after this discussion of the drug trafficking
conviction that the judge referred to the defendant’s
2
After being corrected, the judge explained convincingly that
he had mistakenly said “convictions” and knew these were
just arrests, not convictions.
10 No. 09-3324
arrests: “So the slate is not entirely clean, and on top of
that we have a PSR that references several DUI arrests,
including one that is still pending . . . and . . . some other
things in the background that are not as pristine as you
would hope for someone who is looking for a break from
the Sentencing Guidelines.” The judge also said to the
defendant: “For my purposes what matters is that if you
had no DUI arrests and . . . if your prior criminal convic-
tion had been for something like drug use instead of drug
trafficking, I might have been able to see clearer to do . . .
a greater departure.”
The appellant argues that this line of reasoning, placing
so much emphasis on the fact that the drug conviction
was for trafficking rather than use, is illogical because
if the conviction had been for drug possession rather
than trafficking, then a lower offense level would have
applied and Guajardo would have faced a much lower
guideline range in the first place. The argument is not
convincing. The district judge’s statements at sentencing
simply and clearly show that the court gave significant
weight to the drug trafficking conviction in deciding on
the sentence. The written Statement of Reasons confirms
this was the case: “[I]n light of the Defendant’s prior
criminal history, including most significantly his prior
conviction for a drug trafficking crime, and the need to
avoid unwarranted sentencing disparities . . . , the Court
was not persuaded to go any further below the guide-
line range.”
As in similar cases where sentencing courts have con-
sidered prior arrests without objection, we find no plain
No. 09-3324 11
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 de-
fendant 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 de-
fendant 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 disa-
vowed 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.
II. Fast-Track Disparity
The district court was a little ahead of its time on the fast-
track disparity issue, anticipating our reversal of course
12 No. 09-3324
on the issue. In United States v. Reyes-Hernandez,
624 F.3d 405 (7th Cir. 2010), decided after Guajardo’s
sentencing, we held that sentencing courts may consider
the disparity in the applicable Sentencing Guidelines
ranges between illegal reentry defendants in districts
with a fast-track program and districts without a fast-
track program. See U.S.S.G. § 5K3.1. That decision over-
ruled United States v. Galicia-Cardenas, 443 F.3d 553
(7th Cir. 2006), where we had held that a sentence
that treated a district’s lack of a fast-track program
as a mitigating factor was not reasonable. While the
fast-track disparity now may be considered, a sen-
tencing court is not required to treat it as a mitigating
factor. Reyes-Hernandez, 624 F.3d at 421. The district
judge concluded that he was allowed to consider the
fast-track disparity, but he declined to impose a lower
sentence on that basis in this case because the defendant
had not complied with the requirements of the pro-
gram—“there are various concessions that have to be
made in order to get Fast Track that haven’t been made
in this case”—and because of the defendant’s prior crimi-
nal record. The judge was justified in coming to
that conclusion.
The appellant argues that the district judge’s decision
not to consider the fast-track argument rested im-
properly on his criminal record, including his arrests, and
was thus based on plain error. We disagree. The judge
made no error with respect to consideration of the fast-
track disparity issue. While the judge noted that, “if the
defendant had a prior record that was less spotty, this
might be a factor that might be more in play than it is
No. 09-3324 13
here,” the judge did not specifically mention the prior
arrests in his discussion of the fast-track issue. It is
clear that the district judge would have considered the
defendant’s criminal record “spotty” even without the
first two arrests, given the earlier conviction for drug
trafficking and the circumstances surrounding the
third driving-under-the-influence arrest. We are con-
fident that the district judge would have made the
same decision even if he had not improperly con-
sidered, without objection, two of the defendant’s
arrests not leading to convictions.
The judgment of the district court is A FFIRMED.
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