Worst Defense Ever: My 41 Other Arrests Don't Count

Edgar Lopez-Hernandez, a Mexican citizen, pleaded guilty to being in the United States without permission after he had been deported. He had five previous convictions — including one for attempted armed robbery — which placed him in the 57- to 71-month guidelines range.

Based on Lopez-Hernandez's convictions, as well as 41 prior arrests that didn't result in convictions, the district court sentenced him to 71 months in prison.

On appeal, Lopez-Hernandez told the Seventh Circuit Court of Appeals that the district judge shouldn't have considered his 41 arrests that had not resulted in convictions during sentencing.

He was correct, but that didn't change anything.

The 41 arrests were for offenses including possession of cannabis, reckless conduct, negligent driving, no driver's license, no liability insurance, domestic battery, aggravated assault, aggravated intimidation, soliciting unlawful business, reckless damage to property, disorderly conduct, and more than a dozen arrests for criminal trespass. The district judge stated during sentencing that "the particular sentence was imposed for the reasons stated in the attached transcript and, more specifically, for the extraordinary criminal history, especially the number of arrests for serious offenses that did not lead to convictions."

That didn't seem fair to Lopez-Hernandez -- you know, due process and such -- so he appealed.

Lopez-Hernandez, the government, and the Seventh Circuit Court of Appeals all agree: a sentencing court may not rely on the prior arrest record itself in deciding on a sentence. At the very least, the judge should not have considered the arrests without determining that the Lopez-Hernandez had actually engaged in the conduct for which he had been arrested.

Even though the Seventh Circuit agreed that the 41 arrests shouldn't have been a part of the consideration, the appellate court affirmed the sentence for two reasons: The five previous convictions were enough to warrant the 57- to 71-month guidelines range, and Lopez-Hernandez failed to challenge his lengthy arrest record in court.

If your client has a mile-long arrest-without-conviction record, it's worth your time to challenge the accuracy of the record during sentencing. If the judge ultimately sentences your client within the guidelines range, you won't have a strong case for appeal if you didn't question the validity of the arrest record in the district court.

Related Resources:

• USA v. Edgar Lopez-Hernandez (Seventh Circuit Court of Appeals)
• Judge Posner Trusts Judges' Sentence Enhancement Instincts (FindLaw's Seventh Circuit Blog)
• If Your Llama's on the Lam, Fight the Conviction (FindLaw's Seventh Circuit Blog)