dissenting.
I would remand this case to the district court for resentencing because I believe that drawing inferences about M.R.M.’s character from her arrest record is contrary to law and plainly unreasonable. The Supreme Court has said that “[t]he mere fact that a man has been arrested has little, if any, probative value in showing that he has engaged in any misconduct. An arrest shows nothing more than that someone probably suspected the person apprehended of an offense.” Schware v. Board of Bar Examiners, 358 U.S. 232, 241, 77 S.Ct. 752, 1 L.Ed.2d 796 (1956) (footnote omitted). In other words, an arrest provides an insufficiently reliable basis for concluding that a person has committed illegal conduct. That no doubt is why U.S.S.G. § 4A1.3(a)(3) specifically prohibits courts from considering a prior arrest in determining whether a departure is warranted because of an understatement of a defendant’s criminal history. It is noteworthy, too, that this guideline provision contains no exception for a series of arrests, cf. United States v. Juvenile PWM, 121 F.3d 382, 384-85 (8th Cir.1997), and we said years ago in United States v. Bailey, 547 F.2d 68, 71 (8th Cir.1976), that a sentencing judge “must not equate arrests as evidence of prior wrongdoing.”
The continuing vitality of this elementary rule, founded on considerations of due process, can hardly be in doubt: Less than two months ago, the Second Circuit held squarely that “a bare-bones indictment, without more, is insufficient to support a factual underpinning for sentencing purposes” and that “a charge ..., standing alone and without independent substantiation, cannot be the basis upon which a criminal punishment is imposed.” United States v. Juwa, 508 F.3d 694, 701 (2d Cir.2007); see also Brothers v. Dowdle, 817 F.2d 1388, 1390 (9th Cir.1987).
The proposition that an arrest is an unreliable indication of criminal conduct is therefore so firmly fixed in the case law that the district court was obviously wrong to neglect it in passing sentence on M.R.M. I conclude, moreover, that there is a reasonable probability that the error affected the sentence in this case because the district court told M.R.M. at sentencing that her arrests “show what kind of person you’ve been.” Finally, this is the kind of error that seriously affects the fairness and public reputation of judicial proceedings, United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), because it undermines a bedrock legal principle on which juries in criminal cases are routinely instructed, usually twice, namely that a mere criminal charge is not evidence of guilt and that to give it weight deprives a criminal defendant of the presumption of innocence. See, e.g., Eighth Circuit Model Criminal Jury Instructions §§ 1.01, 3.05. This is a long-established and fundamental rule of law, see Coffin v. United States, 156 U.S. 432, 453-56, 15 S.Ct. 394, 39 L.Ed. 481 (1895), and one with which every American citizen is familiar. Failing to give it effect *874is unfair and bound to erode the public’s confidence in the criminal process.
I would therefore remand this case to the district court for resentencing and I respectfully dissent from the court’s judgment.