United States v. Drain
| Decision Date | 21 January 2014 |
| Docket Number | No. 12–3684.,12–3684. |
| Citation | 740 F.3d 426 |
| Parties | UNITED STATES of America, Plaintiff–Appellee, v. Lovoyne DRAIN, Defendant–Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
OPINION TEXT STARTS HERE
Maryann T. Mindrum, Attorney, James M. Warden, Attorney, Office of the United States Attorney, Indianapolis, IN, for Plaintiff–Appellee.
William H. Dazey, Jr., Attorney, Sara J. Varner, Attorney, Indiana Federal Community Defenders, Inc., Indianapolis, IN, for Defendant–Appellant.
Before MANION, SYKES, and TINDER, Circuit Judges.
Lovoyne Drain appeals his above-guidelines sentence for possession of a firearm by a felon, 18 U.S.C. § 922(g)(1). He argues that the district judge ran afoul of U.S.S.G. § 4A1.3(a)(3) and the Due Process Clause by considering his record of unadjudicated arrests, many for offenses involving drugs or violence. But § 4A1.3(a)(3), like every provision of the sentencing guidelines, is advisory. And the judge did not violate Drain's right to due process by taking account of his arrest history as part of her evaluation of the sentencing factors under 18 U.S.C. § 3553(a). Accordingly, we affirm Drain's sentence.
In February 2010 Drain sold a rifle engraved with the warning “Law Enforcement Use Only” to a government informant. The rifle had been stolen from an FBI vehicle a few months earlier. Later, in July 2010, police officers went to Drain's home to execute a warrant for his arrest on charges of dealing cocaine. They observed drug paraphernalia in the home, obtained a search warrant for the residence, and recovered a loaded Beretta 9mm pistol with an obliterated serial number. Drain's fingerprints were found on bullets in the gun's magazine. The officers also discovered seven injured and malnourished pit bulls held in squalid conditions at Drain's residence.
After his arrest Drain confessed to federal agents that he had fired the stolen FBI rifle and knew it belonged to law enforcement, but he insisted that he was only hiding the weapon for an acquaintance. In a later interview, Drain initially denied that he had ever handled the Beretta—or, indeed, that he possessed any guns at his residence—but changed his story and said he was holding that gun for a jailed acquaintance. After he was confronted with the fingerprint analysis, Drain admitted loading 9mm ammunition into the Beretta and bragged that his fingerprints probably are on every gun in Indiana.
Drain was charged with two counts of unlawful possession of a firearm by a felon, see18 U.S.C. § 922(g)(1), and one count of unlawful possession of ammunition by a felon, see id. § 924(a)(2). He eventually pleaded guilty to a single violation of § 922(g)(1) based on his possession of the Beretta. The probation officer who drafted Drain's presentence report calculated a total offense level of 18 and a criminal-history category of III, resulting in a guidelines imprisonment range of 33 to 41 months. Drain's criminal-history score did not reflect his 3 juvenile offenses, 6 of his 10 adult convictions, a pending drug case, or 17 unadjudicated arrests since 1993.1 Accordingly, the probation officer suggested that an “upward departure” under U.S.S.G. § 4A1.3(a)(1) might be appropriate because Drain's criminal-history category understated his extensive criminal conduct, much of which involved drugs or violence. Although the presentence report described the facts underlying Drain's adult convictions and juvenile adjudications, the events underlying the unadjudicated arrests were not described. Drain objected to the probation officer's suggestion, arguing that departures are obsolete after United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and that his criminal-history category adequately accounted for his criminal history.
At sentencing the district judge adopted the guidelines calculations from the presentence report without further objection. After Drain's allocution, the judge questioned him at length about his extensive criminal history given his relative youth (33 years old) and about the role drugs have played in his life. We set forth the colloquy at length here because it forms the basis for the arguments Drain raises on appeal.
The only thing that society says is conform your behavior to the legal requirements. And you haven't been able to do that. Right?
THE DEFENDANT: Yes, ma'am.
....
....
....
....
....
....
....
....
....
So it's partly about getting you back in a good condition, but it's also about protecting the public from the behaviors of a person who's shown himself to be nothing but a law violator. That is the consistent pattern: Drug user and law violator.
Defense counsel objected to the court's consideration of Drain's unadjudicated arrests because the presentence report lacked any description of the conduct underlying the 17 unadjudicated arrests. The judge apparently misunderstood and thought counsel was objecting to consideration of any of Drain's arrests, including those that had resulted in convictions. That misunderstanding led to this exchange:
So I mean it's not “Just 31 arrests, don't pay any attention, Judge,” because packed into those 31 separate occasions, including the instant offense, are some troublesome facts.
After this exchange counsel dropped the subject of the unadjudicated arrests.
The government argued for a prison sentence at the top of the guidelines range, noting that the district court had “fairly captured the fact that this number of arrests, even without having some of the facts behind them, speaks in a way that the [c]ourt is entitled to consider with respectto the history and characteristics of this defendant.”
Before imposing sentence, the judge addressed the factors in 18 U.S.C. § 3553(a) at some length,...
To continue reading
Request your trial
-
United States v. Cottrell
...age 14. He pleaded insanity. The charges were dismissed, so the court views this arrest history circumspectly. See United States v. Drain , 740 F.3d 426, 432 (7th Cir. 2014) ("an arrest alone does not necessarily mean guilt"). The underlying record proves more likely than not reliable thoug......
-
United States v. Mansfield
...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 Stat......
-
Reed v. Norfolk S. Ry. Co.
... ... 13–2307.United States Court of Appeals,Seventh Circuit.Argued Dec. 2, 2013.Decided Jan. 14, 2014.Rehearing and ... ...
-
United States v. Holmes
...and risk of recidivism, including behavior that never resulted in conviction or even formal criminal charges. See United States v. Drain, 740 F.3d 426, 432 (7th Cir. 2014); United States v. Jones, 696 F.3d 695, 701-02 (7th Cir. 2012); United States v. Sonnenberg, 628 F.3d 361, 368 (7th Cir.......
-
Sentencing
...information underlying arrest record that provided “adequate evidentiary basis with sufficient indicia of reliability”); U.S. v. Drain, 740 F.3d 426, 432 (7th Cir. 2014) (upward departure justified where court considered 13 prior arrests for crimes resulting in adult convictions, defendan......