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Courts Can Consider Unconvicted Arrests in Sentencing

By Robyn Hagan Cain on December 12, 2012 | Last updated on March 21, 2019

Perhaps people are capable of change. As individuals, we can forgive, look forward, and move on. Courts don't really do that.

A judge doesn't just let bygones be bygones. She can look to a defendant's past — both convictions and unconvicted arrests— when determining a sentence. And the Fifth Circuit Court of Appeals is okay with that.

Nicholas Harris pleaded guilty to attempted possession with intent to distribute cocaine. His pre-sentence report (PSR) calculated a total offense level of 30, placing him in criminal history Category III due to his prior criminal convictions.

The PSR included Harris's arrest record, which contained five arrests dating back to 1999 that resulted in no prosecution. The PSR also included information about the underlying facts of those arrests from the arrest reports.

Clearly, Harris objected to the calculation since we're discussing his case.

(Sidebar: At sentencing, Harris argued that one of his prior convictions was almost old enough not to be considered in computing his criminal history score. As if "almost" matters. Bless his heart.)

Federal criminal sentences are reviewed for reasonableness under a bifurcated approach, "regardless of whether the sentence imposed is inside or outside the Guidelines range."

First, the court determines whether the district court committed any "significant procedural errors," such as improperly calculating the Guidelines range, treating the Guidelines as mandatory, or selecting a sentence based on erroneous factors. Second, assuming no procedural error occurred, the court reviews for substantive reasonableness, taking into account the totality of the circumstances.

Harris argued that the district court committed procedural error by considering his "bare arrest record": the mere fact of an arrest without corresponding information about the underlying facts or circumstances. While Fifth Circuit precedent prohibits consideration of the fact of prior arrests, courts may consider arrests if sufficient evidence corroborates their reliability. When making factual findings for sentencing purposes, district courts "may consider any information which bears sufficient indicia of reliability to support its probable accuracy."

Generally, a PSR meets that standard, so a district court may adopt the facts contained in a PSR without further inquiry if those facts have an adequate evidentiary basis and the defendant does not present rebuttal evidence that the information in the PSR is unreliable.

Here, Harris objected on procedure rather than accuracy. That wasn't enough to overturn the district court.

Frankly, Harris sounds like a bad guy. The judge called him out for his behavior during sentencing, telling him, "You are being violent. Some of those women were pregnant with your child when you were assaulting them." While we're usually uncomfortable with courts using unadjudicated priors in calculating a sentence, somehow it's more palatable in this case.

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