In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-2981
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
NATHAN MANSFIELD,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:19-cr-00038 — James R. Sweeney, II, Judge.
____________________
ARGUED NOVEMBER 3, 2021 — DECIDED DECEMBER 28, 2021
____________________
Before KANNE, BRENNAN, and KIRSCH, Circuit Judges.
BRENNAN, Circuit Judge. Nathan Mansfield was convicted
of possession with intent to distribute methamphetamine and
sentenced to 188 months in prison. He now argues the district
court erred by considering his arrest history during
sentencing. But Mansfield waived this challenge when his
counsel did not object to the district court’s consideration of
the presentence investigation report or its contents. Even if
this point was not waived, a substantial history of arrests,
2 No. 20-2981
especially if they are similar to the offense of conviction, can
be a reliable factor to consider at sentencing. We therefore
conclude the district court did not err when it reviewed
Mansfield’s arrest history.
I
In January 2019, law enforcement officers intercepted a
package containing 6.6 kilograms of methamphetamine. The
officers then conducted a controlled delivery to Nathan Mans-
field’s home, the package’s original destination. Once the
package was opened, the officers executed an anticipatory
search warrant and arrested Mansfield as he exited the rear of
the house. 1 A grand jury indicted Mansfield for violating 21
U.S.C. § 841(a)(1) and (b)(1)(A) and 18 U.S.C. § 2.
Mansfield received a copy of his presentence investigation
report (“PSR”) in June 2020. That report calculated a total of-
fense level of 31 and a criminal history category of VI and rec-
ommended an imprisonment range under the Sentencing
Guidelines of 188 to 235 months.
The PSR listed 26 “[o]ther [a]rrests” of Mansfield between
1992 to 2013. These arrests involved at least 49 charges,
including, among other things, domestic battery and battery
resulting in bodily injury, resisting law enforcement, felony
intimidation, and neglect of a dependent. The arrests also
included a series of drug possession charges in 2005, 2006,
1 An anticipatory search, like the one executed in this case, is “a war-
rant based upon an affidavit showing probable cause that at some future
time (but not presently) certain evidence of crime will be located at a spec-
ified place.” United States v. Grubbs, 547 U.S. 90, 94 (2006) (quoting 2
WAYNE R. LAFAVE, SEARCH AND SEIZURE § 3.7(c), at 398 (4th ed. 2004));
United States v. Whited, 539 F.3d 693, 697 (7th Cir. 2008) (same).
No. 20-2981 3
and 2007, culminating in two 2013 felony charges for “Dealing
in Cocaine or Narcotic,” and three 2013 felony charges for
“Possession of Cocaine or Narcotic.” The disposition for 48 of
these charges was listed as “Dismissed,” “No Action Taken,”
or “Unknown disposition.” For the other charge—a 1999
criminal trespass charge—the disposition was listed as “Not
guilty.”
Mansfield entered an open guilty plea.2 Less than a month
before sentencing, Mansfield filed a Notice of Request for De-
parture Due to Role Reduction at Sentencing. This notice
stated that Mansfield would request “the court depart down-
ward and adjust his base level commensurate to his minimal
role in the criminal activity that led to his arrest.” The notice
did not challenge the accuracy of the PSR or the inclusion of
Mansfield’s arrest history. Several weeks later, in advance of
his sentencing hearing, Mansfield filed a sentencing memo-
randum. Once again, he did not challenge the accuracy of the
report or the inclusion or accuracy of his arrest history. Ra-
ther, the sentencing memorandum focused on Mansfield’s
health, role in the crime, lack of dangerousness, and character.
At the sentencing hearing, Mansfield’s counsel confirmed
that she and Mansfield had “read and discussed [the] presen-
tence report.” The district court asked Mansfield’s counsel if
she had any objections “other than” the notice Mansfield
filed, which “could be deemed as a request for departure.”
She confirmed there were none. The district court then ex-
plained its conclusions and asked if there was “any objection
2 “[A] plea made by the defendant without the benefit of a plea agree-
ment entered into with the Government.” United States v. Booth, 432 F.3d
542, 543 n.1 (3d Cir. 2005) (citation omitted).
4 No. 20-2981
or response” to the offense level and criminal history cate-
gory. She responded, “No, Your Honor, subject to my argu-
ment for departure, which I have preserved for the Court’s
consideration.”
The district court next considered Mansfield’s argument
for departure and discussed the range of factors it would use
to determine his sentence. Among other things, the court
referenced the parties’ statements, the sentencing
memorandum, the probation officer’s input, and the 18 U.S.C.
§ 3553(a) factors. It highlighted considerations related to the
§ 3553(a) factors, such as the presence of two young girls at
the drug bust, the current drug epidemic, past leniency
during sentencing, evidence of Mansfield’s desire to improve,
and the potential effects of COVID-19 on Mansfield’s health.
In this discussion, the court made only a brief, two-sentence
reference to Mansfield’s arrest history:
I look at the history and characteristics of
the defendant; and you do have a very long
history, Mr. Mansfield. And in all of these
convictions and arrests, arrests that in-
cluded—that were not reduced to judgments
but included domestic battery, intimidation
felony, battery, neglect of a dependent,
many resisting law enforcement.
Circumstances warranted a sentence at the upper end of
the guideline range, the district court noted, yet it pronounced
a sentence of 188 months’ imprisonment, a term at the very
bottom of Mansfield’s guideline range. The court explained
that this sentence was “sufficient but not greater than
necessary to protect the public from further crimes of the de-
fendant, to reflect the seriousness of the offense, and to afford
No. 20-2981 5
adequate deterrence to criminal conduct.” The court then
asked Mansfield’s counsel whether she had a “legal objection
to the [proposed] sentence” or a request for “any further elab-
oration … under [§] 3553(a) as to the length of imprisonment
or as to the length and/or conditions of supervised release.”
Once again, Mansfield’s counsel stated she had none.
In imposing the sentence, the district court asked whether
Mansfield had “[a]nything further.” For the final time, Mans-
field’s counsel responded she did not. Mansfield appealed
later that day and before us challenges only his sentence.
II
First, we address Mansfield’s argument that United States
v. Esposito, 1 F.4th 484 (7th Cir. 2021), supports de novo review
of his sentence. We disagree.
Jeffrey Esposito was convicted of multiple counts of
sexually exploiting a child and possessing child pornography.
Id. at 485. At his sentencing hearing, the district court
“pronounced Esposito’s sentences, count by count, imposing
six 30-year sentences to be served consecutive to each other,
followed by fifteen 20-year sentences to be served concurrent
with each other but consecutive to the 30-year sentences.” Id.
at 486. In total, Esposito was sentenced to 200 years in prison.
Id. Following this pronouncement, the district court asked
Esposito if he had an objection to the proposed sentence or a
“request [for] any further elaboration of [the court’s] reasons
under Section 3553(a) as to the length of imprisonment or as
to the length and/or conditions of supervised release.” Id. at
486–87. Esposito “did not object” to the court’s sentencing
method but sought and received “clarification of the
6 No. 20-2981
consecutive-versus-concurrent aspect of the sentences and
how the 200 years was calculated.” Id. at 486.
On appeal, Esposito argued the district court’s decision
should be reviewed de novo because his challenge was proce-
dural. Id. (citing United States v. Ballard, 950 F.3d 434, 436 (7th
Cir. 2020); United States v. Pennington, 908 F.3d 234, 238 (7th
Cir. 2018)). Our court agreed with his characterization and
held that de novo review was proper under the circum-
stances. Id. at 487. Specifically, we reasoned that Esposito’s
disputes were “properly characterized as a procedural error”
because they challenged the court’s pronouncement and ex-
planation of his sentence. Id. (citing Gall v. United States, 552
U.S. 38, 51 (2007); Pennington, 908 F.3d at 238).
As this court has concluded, “courts only elicit waiver
when they ask specific questions—like whether the defendant
is satisfied with the court’s treatment of their main arguments
in mitigation—not generalized inquiries about whether the
defendant was confused or had anything else to say.” Esposito,
1 F.4th at 486 (citing United States v. Speed, 811 F.3d 854, 857–
58 (7th Cir. 2016); see also United States v. Mzembe, 979 F.3d
1169, 1173 (7th Cir. 2020) (“A general invitation for objections
or asking, ‘anything else?’ at the end of the hearing is not suf-
ficient, however, to show a waiver of challenges to the suffi-
ciency of an explanation.”)). The district court’s inquiry at the
end of Esposito’s sentencing hearing was best characterized
as a “broad,” although “not completely general,” question. Id.
at 486.
The circumstances here differ substantially from those in
Esposito. Mansfield had many opportunities throughout his
case and at the sentencing hearing to object or to seek clarifi-
cation. He was asked specifically whether he had any
No. 20-2981 7
objection or response to the presentence investigation report,
the offense level and criminal history category, or the pro-
posed sentence. Each time his counsel stated she had none. In
contrast, Esposito asked for clarification about a complicated
combination of concurrent and consecutive sentences after
those sentences were pronounced. Neither Esposito nor his
counsel could have sought this clarification before the district
court made its pronouncement.
The circumstances here did not involve the type of proce-
dural error challenged in Esposito, so we decline Mansfield’s
request for de novo review.
III
We next consider whether Mansfield waived his right to
challenge the use of his arrest history during sentencing.
Waiver is the intentional relinquishment of a known right.
United States v. Flores, 929 F.3d 443, 447 (7th Cir. 2019), cert.
denied, 140 S. Ct. 504 (2019). 3 When a defendant waives an
argument—“for example, when he states on the record that
he has no objection to the pre-sentence report—he waives the
right to appeal.” United States v. Robinson, 964 F.3d 632, 639–
40 (7th Cir. 2020) (citing United States v. Staples, 202 F.3d 992,
995 (7th Cir. 2000) (“Waiver extinguishes the error and
precludes appellate review.”)). Forfeiture “comes about
through neglect.” Staples, 202 F.3d at 995. We review a
forfeited argument for “plain error only.” Robinson, 964 F.3d
at 640 (citation omitted).
3 Before issuing its decision, the panel in Flores “invoked Circuit Rule
40(e) and circulated the opinion to all judges in active service, and no
judge voted to hear the case en banc.” United States v. Withers, 960 F.3d
922, 929 n.7 (7th Cir. 2020) (citing Flores, 929 F.3d at 450 n.1).
8 No. 20-2981
In United States v. Robinson, we explained that even though
“‘a lawyer’s statement that a defendant has no objection to the
PSR does not automatically constitute a waiver,’ we consider it
in light of the surrounding circumstances and the record as a
whole to determine whether counsel and the defendant made
a knowing and intentional decision.” Id. at 641 (quoting
United States v. Garcia, 580 F.3d 528, 542 (7th Cir. 2009)). In
making this determination, we consider express statements of
waiver, as well as evidence of acquiescence. Id.
There is “no rigid rule for finding waiver in acquiescence.”
Id. (quoting United States v. Anderson, 604 F.3d 997, 1001 (7th
Cir. 2010)). Such a finding “often requires some conjecture.”
Id. at 641–42 (citing Garcia, 580 F.3d at 542). In United States v.
Staples, we held that the defendant “waived his right to appeal
the calculation of his criminal history” because “[d]espite be-
ing provided advance notice of the PSR’s contents and an op-
portunity to object before and during the sentencing hearing,
[he] and his counsel did not.” 202 F.3d at 995. In other words,
an affirmative decision not to object when one knows the con-
tents of the PSR “shows intent to waive the right, not igno-
rance or neglect of the right.” Id.
We also consider “whether the lack of an objection could
have been tactical or strategic.” Robinson, 964 F.3d at 641 (cit-
ing United States v. Jaimes-Jaimes, 406 F.3d 845, 848 (7th Cir.
2005)). Our court “will find waiver ‘if the defendant had a
strategic reason to forego the argument, that is, only if the de-
fendant’s counsel would not be deficient for failing to raise
the objection.’” Id. at 642 (quoting United States v. Allen, 529
F.3d 390, 395 (7th Cir. 2008)). But “[i]f the government cannot
proffer any strategic justification for a defendant’s omission,
we will presume an inadvertent forfeiture rather than an
No. 20-2981 9
intentional relinquishment.” Id. (citing United States v. Moody,
915 F.3d 425, 429 (7th Cir. 2019)). In short, “[a]lthough we con-
strue waiver principles liberally in favor of the defendant, we
have time and again found waiver … where a defendant or
his counsel either concurs with the facts found in a pre-sen-
tence report, or expressly declines to make an objection to
those facts at sentencing, or both.” Id. at 642–43 (citation omit-
ted) (collecting cases).
The question, then, is whether Mansfield waived his chal-
lenge to the court’s consideration of his arrest history at
sentencing. Mansfield raises this challenge for the first time
on appeal. At no point in the previous proceedings did he ever
object on this topic. That failure was not for lack of oppor-
tunity. Before his sentencing hearing, Mansfield filed a Notice
of Request for Departure Due to Role Reduction at Sentenc-
ing, as well as a sentencing memorandum. Neither of these
filings challenged the accuracy of the presentence investiga-
tion report or its inclusion of his arrest history.
At his sentencing hearing, Mansfield’s counsel repre-
sented that she and Mansfield had reviewed and discussed
the PSR. She also made several statements constituting ex-
press waiver. The district court directly asked whether Mans-
field had (1) any objection to the PSR, (2) “any objection or
response” to the court’s calculation of the offense level and
criminal history category, and (3) any “legal objection to the
[proposed] sentence.” Each time, Mansfield’s counsel stated
she had no objection. These express denials, combined with
the missed opportunities, constitute waiver.
The government has also proffered a strategic justification
for Mansfield to forego his argument before the district court.
Raising Mansfield’s arrest history—which included 26
10 No. 20-2981
arrests—would have highlighted his risk of recidivism. That
arrest history was a bad fact. So, Mansfield’s counsel appears
to have made a strategic decision to focus on arguments for a
downward departure, rather than draw the district court’s
attention to Mansfield’s criminal history. Indeed, in the end,
the court sentenced Mansfield to a prison term at the very
bottom of the guideline range. In United States v. Brodie, this
court recognized that “when [a] defendant selects among
arguments as a matter of strategy, he also waives those
arguments he decided not to present.” 507 F.3d 527, 531 (7th
Cir. 2007) (citations omitted). The government’s contention
fits squarely within this precedent.
For these reasons, we hold that Mansfield waived his chal-
lenge in the district court.
IV
Even if we were to conclude that Mansfield did not waive
this challenge, then at the least he forfeited his objection to the
district court’s consideration of his arrest history in the PSR.
We review a forfeited objection for plain error.4 See FED. R.
CRIM. P. 52(b); Robinson, 964 F.3d at 640. Under this standard,
Mansfield must “show: (1) an error; (2) that is plain; (3) that
affected his substantial rights, meaning there is a reasonable
probability that the error changed the outcome of the trial;
and (4) that ‘had a serious effect on the fairness, integrity or
4 Even when an issue may have been waived, in some decisions we
have considered forfeited arguments and reviewed for plain error. See,
e.g., United States v. Freed, 921 F.3d 716, 720 (7th Cir. 2019) (reviewing de-
fendant’s objection to jury instructions for plain error after his failure to
object at jury instruction conference); United States v. Groce, 891 F.3d 260,
269 (7th Cir. 2018) (same); Anderson, 604 F.3d at 1002 (reviewing challenge
to sentence for plain error after defendant’s counsel accepted PSR).
No. 20-2981 11
public reputation of judicial proceedings.’” United States v.
Julius, 14 F.4th 752, 755 (7th Cir. 2021) (quoting Greer v. United
States, 141 S. Ct. 2090, 2096–97 (2021)).
Here, the first requirement—whether there was an error—
determines the outcome. To decide that, initially we review if
and when a criminal defendant’s prior arrests may be consid-
ered at sentencing. Then, we judge whether the district court
erred when it considered Mansfield’s arrest history.
A
The text of relevant statutes, the U.S. Sentencing Guide-
lines, and this court’s precedent form the legal framework un-
der which a district court may consider a defendant’s arrest
history during criminal sentencing.
As always, our analysis begins with the text of the statute.
Hughey v. United States, 495 U.S. 411, 415 (1990); Loja v. Main
St. Acquisition Corp., 906 F.3d 680, 683 (7th Cir. 2018). Title 18
U.S.C. § 3553(a) states in relevant part:
Factors to be considered in imposing a
sentence.—The court shall impose a sentence
sufficient, but not greater than necessary, to
comply with the purposes set forth in
paragraph (2) of this subsection. The court, in
determining the particular sentence to be
imposed, shall consider—
(1) the nature and circumstances of the
offense and the history and charac-
teristics of the defendant.
See also 18 U.S.C. § 3661 (“No limitation shall be placed on the
information concerning the background, character, and
12 No. 20-2981
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.”). Thus, § 3553(a) requires
that courts consider “the history and characteristics of the de-
fendant” before sentencing. This factor—taken with the other
§ 3553(a) factors—helps a district court determine “whether
the sentence is unreasonable.” United States v. Booker, 543 U.S.
220, 261 (2005).
The U.S. Sentencing Guidelines provide insight into the
proper use of a defendant’s arrest history. The once-
mandatory Guidelines now serve as an “advisory yet still
important” resource for district courts. United States v.
Vasquez-Abarca, 946 F.3d 990, 994 (7th Cir. 2020); see also Booker,
543 U.S. at 233–37. As the Supreme Court has explained,
“sentencing judges have discretion under § 3553(a) to give
non-guideline sentences for reasons specific to the defendant
or based on policy disagreements with the Guidelines.”
Vasquez-Abarca, 946 F.3d at 994 (citations omitted). In fact, a
sentencing judge will “actually err” if he or she “presume[s]
that a guideline sentence will be reasonable.” Id. (citing Rita v.
United States, 551 U.S. 338, 351 (2007); Gall, 552 U.S. at 50). But
at sentencing, the judge must still “calculate the guideline
range correctly, and failure to do so will be a ‘plain error’ that
will often need to be corrected on appeal even if no objection
was made in the district court.” Id. (citations omitted).
The 2018 Sentencing Guidelines Manual—the version in
effect when Mansfield was sentenced—addresses how a de-
fendant’s arrest history may be considered. It states in perti-
nent part:
(2) Types of Information Forming the Basis
for Upward Departure.—The information
No. 20-2981 13
described in subsection (a)(1) may include in-
formation concerning the following:
…
(E) Prior similar adult criminal conduct
not resulting in a criminal conviction.
(3) Prohibition.—A prior arrest record itself
shall not be considered for purposes of an up-
ward departure under this policy statement.
U.S.S.G. § 4A1.3(a). So, the Guidelines support reliance on
similar adult criminal conduct but prohibit considering a
“prior arrest record itself” for purposes of an upward depar-
ture. Id. § 4A1.3(a)(3). Importantly, though, this “prohibition”
is a nonbinding policy statement. District courts may consider
the Guidelines while conducting the § 3553(a) analysis, but
their “failure to do so is not grounds for reversal.” United
States v. Drain, 740 F.3d 426, 431–32 (7th Cir. 2014).
This court has ruled as to when a defendant’s prior arrests
may be considered in several decisions. In United States v.
Guajardo-Martinez, we made clear that a “district judge has
wide discretion to consider a defendant’s background at sen-
tencing.” 635 F.3d 1056, 1059 (7th Cir. 2011) (citing 18 U.S.C.
§ 3661). This discretion is confined by the Fifth Amendment’s
Due Process Clause, which requires that the “information
used for sentencing be accurate.” Id. (citing United States v.
Tucker, 404 U.S. 443, 447 (1972)). Therefore, a judge “may con-
sider information only if it has ‘sufficient indicia of reliability
to support its probable accuracy.’” Id. (quoting United States
v. Hankton, 432 F.3d 779, 790 (7th Cir. 2005)). A court “may not
rely” on arrest history “itself in deciding on a sentence or in
imposing an upward departure,” but it “may still consider the
14 No. 20-2981
underlying conduct detailed in arrest records where there is
a sufficient factual basis for the court to conclude that the con-
duct actually occurred.” Id. (citations omitted).
One year later, in United States v. Lopez-Hernandez, a
defendant argued the district court improperly considered
“41 arrests that did not lead to convictions,” without first
determining that he “actually engaged in the conduct for
which he had been arrested.” 687 F.3d 900, 901–02 (7th Cir.
2012). The district court stated that it imposed a sentence at
the top of the guideline range because of the defendant’s
“extraordinary criminal history, especially the number of
arrests for serious offenses that did not lead to convictions.”
Id. at 902. This court used Lopez-Hernandez as an opportunity
to clarify the holding in Guajardo-Martinez, which had held
that “a sentencing court may not rely on the prior arrest
record itself in deciding on a sentence.” Id. (citations omitted)
(quoting Guajardo-Martinez, 635 F.3d at 1059). But the
“italicized [word] is key, because” a “court may still consider
the underlying conduct detailed in arrest records” so long as
it is reliable. Id. (quoting Guajardo-Martinez, 635 F.3d at 1059).
Thus, a district court may consider arrest history during
sentencing when “police reports … supply ‘underlying facts’
which at least arguably contain reliable information about
[the defendant’s] prior similar adult conduct” and the
defendant has “failed to object to [those] underlying facts.” Id.
(citations omitted) (quoting United States v. Terry, 930 F.2d
542, 546 (7th Cir. 1991)).
In United States v. Drain, we considered whether the dis-
trict court violated the Fifth Amendment’s Due Process
Clause when it sentenced a defendant “based on unfounded
speculation that his unadjudicated arrests stemmed from
No. 20-2981 15
actual criminal activity.” 740 F.3d at 432. We explained “that
[d]ue process requires that courts base their sentencing deci-
sions on reliable information.” Id. (citation omitted). Unadju-
dicated arrests may present a due-process problem when “the
arrests do not reflect reliable information of wrongdoing.” Id.
(quoting Guajardo-Martinez, 635 F.3d at 1059).
Drain reaffirmed that “a substantial history of arrests, es-
pecially if they are similar to the offense of conviction, can be
a reliable indicator of a pattern of criminality, suggesting a re-
cidivism risk, and may be considered in weighing the sen-
tencing factors under § 3553(a).” Id. (citations omitted). The
Drain case was “one of those ‘situations where the number of
prior arrests, and/or the similarity of prior charges to the of-
fense of conviction, becomes so overwhelming and sugges-
tive of actual guilt that they become exceedingly difficult to
ignore.’” Id. (quoting United States v. Berry, 553 F.3d 273, 284
(3d Cir. 2009), cited with approval in Lopez-Hernandez, 687 F.3d
at 904).
In sum, the relevant sentencing statutes, the U.S. Sentenc-
ing Guidelines, and our precedent establish that a district
court may consider a defendant’s arrest history during sen-
tencing, provided that the information is reliable. Reliability
can be shown by “the number of prior arrests” or “the simi-
larity of prior charges to the offense of conviction.” Id. at 432
(internal quotation marks and citation omitted). We apply
this rule with deference. A district court is best positioned to
make reliability determinations based on facts such as the
number, nature, and resolution of a defendant’s prior arrests,
and to make a record of its decisions and its reasons therefor.
16 No. 20-2981
B
Under this legal framework, we conclude the district court
did not err in considering Mansfield’s arrest history.
As explained above, “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). Drain, 740 F.3d at 432. At
least 13 of Mansfield’s 26 arrests were related to narcotics,
firearms, battery, intimidation, resisting law enforcement, or
escape charges. This number of arrests, and their similarity to
the offense of conviction, is consistent with our case law. See,
e.g., id. at 428, 431, 433 (upholding an above-guidelines
sentence based on 31 prior arrests); Lopez-Hernandez, 687 F.3d
at 901–04 (upholding a sentence at the top of the guideline
range that was based, in part, on the defendant’s 41 prior
arrests); Guajardo-Martinez, 635 F.3d at 1058 (upholding the
district court’s below-guidelines sentence and determining
the defendant was not prejudiced, even though two of the
three arrests listed in the presentence investigation report
were unreliable); United States v. Walker, 98 F.3d 944, 947–48
(7th Cir. 1996) (upholding, pre-Booker, an upward departure
because the defendant was not prejudiced by the district
court’s improper reliance on 23 prior arrests).
Further, reviewing courts should “expect more of an ex-
planation for a non-guideline sentence than for a within-
guideline sentence.” Vasquez-Abarca, 946 F.3d at 994 (citing
Peugh v. United States, 569 U.S. 530, 542 (2013)). Here, the
district court imposed a sentence at the very bottom of the
guideline range. As a result, we do not expect the detailed ex-
planation that we would in Lopez-Hernandez or Drain. We can
No. 20-2981 17
therefore say that “[a]lthough the presentence investigation
report did not describe the underlying facts of the unadjudi-
cated arrests, the district court could reasonably rely on
[Mansfield’s] long arrest record in combination with his adju-
dicated criminal history as a part of its holistic evaluation of
the § 3553(a) factors.” Drain, 740 F.3d at 433.
Finally, Mansfield argues an affirmance will create a cir-
cuit split with the First, Third, and Fifth Circuits. We disagree.
This court has already addressed the majority of out-of-circuit
cases Mansfield cites. In Lopez-Hernandez, we explained that
we had “no quarrel” with the Third Circuit’s statement “that
‘unsupported speculation about a defendant’s background is
problematic.’” 687 F.3d at 903–04 (quoting Berry, 553 F.3d at
281). Nor did we have issue with its “statement that a ‘bare
arrest record’ is an inadequate ground for a sentence adjust-
ment.” Id. at 904 (quoting Berry, 553 F.3d at 284). In fact, both
the Third and Fifth Circuits agree with the holding in Drain.
Id. (citing Berry, 553 F.3d at 284); see also United States v. John-
son, 648 F.3d 273, 278 (5th Cir. 2011) (citing with approval the
passage from Berry).
Lopez-Hernandez also addressed the First Circuit precedent
cited by Mansfield—United States v. Zapete-Garcia, 447 F.3d 57
(1st Cir. 2006). Our court distinguished Zapete-Garcia because
the defendant in that case “was arrested only a single time,
more than a decade ago.” Lopez-Hernandez, 687 F.3d at 904
(quoting Zapete-Garcia, 447 F.3d at 60–61). 5 The remaining cir-
cuit decision we must address—United States v. Mateo-Medina,
5 In Zapete-Garcia, the First Circuit acknowledged that “a series of past
arrests might legitimately suggest a pattern of unlawful behavior even in
the absence of convictions.” 447 F.3d at 61.
18 No. 20-2981
845 F.3d 546 (3d Cir. 2017)—is distinguishable for the same
reason. Id. at 552 (noting that it “strain[ed] credulity to argue”
that a fifteen-year-old DUI and a passport violation consti-
tuted an “extensive interaction with the criminal justice sys-
tem”). So, the First, Third, and Fifth Circuits’ precedents are
consistent with our ruling today, both in theory and in appli-
cation.
The number of arrests and similarity of charges in Mans-
field’s case are “so overwhelming and suggestive of actual
guilt that they become exceedingly difficult to ignore.” Drain,
740 F.3d at 432 (citations omitted). Thus, the district court did
not err in considering Mansfield’s arrest history.
V
Mansfield waived his challenge to the district court’s
consideration of his arrest history at sentencing. In the
alternative, the district court did not err when it considered
his arrest history, which was sufficiently reliable given the
number of prior arrests and the similarity of previous charges.
We therefore AFFIRM Mansfield’s sentence.