USA v. Guajardo-Martinez
| Decision Date | 04 April 2011 |
| Docket Number | No. 09-3324,09-3324 |
| Parties | United States of America, Plaintiff-Appellee, v. Juan Guajardo-Martinez, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
OPINION TEXT STARTS HERE
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:09-CR-00179-1—Robert M. Dow, Jr., Judge.
Before MANION, Evans, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. Juan Guajardo-Martinez, a 34-year-old Mexican national, pled guilty to illegal reentry of a removed alien subsequent to a conviction for commission of an aggravated felony, in violation of 8 U.S.C. §§ 1326(a) and (b)(2). Guajardo was given a below-guide-lines sentence and has appealed. We rejected defense counsel's request to withdraw as appointed counsel pursuant to Anders v. California, 386 U.S. 738 (1967), andordered briefing as to the district court's consideration of the defendant's prior arrests that led to neither a conviction nor a finding by the district court that the alleged unlawful conduct was proven by a preponderance of the evidence. Guajardo also argues on appeal that the district court erred in not granting a lower sentence based on the fact that the Northern District of illinois does not have a "fast-track" program, because the judge's decision was premised on the appellant's criminal record, including the prior arrests not leading to conviction. While the district court erred in considering two of the defendant's three arrests not leading to conviction, we find that there was no prejudice to defendant and no plain error. We affirm the district court's judgment.
Guajardo apparently first entered the United States with his mother on a tourist visa in August 1995, when he was 18 years old, to visit an older sister who was living in illinois. He overstayed his visa, found work, and eventually married. in 2000, he was arrested and convicted in state court of possession with intent to deliver more than 5,000 grams of cannabis. He was sentenced to four years in prison. He was released on parole in 2002 and was deported to Mexico. Sometime later in 2002, Guajardo illegally returned to the United States. He found employment as a carpenter and a foreman. He and his wife had a child and later divorced.
In February 2009, Guajardo was arrested for driving under the influence of alcohol. After it was discoveredthat he was living unlawfully in the United States, he was taken into custody by Immigration and Customs Enforcement agents. On May 27, 2009, Guajardo pled guilty to illegal reentry.
The Presentence Investigation Report calculated Guajardo's Sentencing Guidelines range as 46 to 57 months. The range was based on a total offense level of 21, including a 16-level enhancement because of the drug trafficking offense in 2000, and a criminal history category of III based on a total of 6 criminal history points.
The presentence report also documented numerous other arrests, minor convictions, and warrants for Guajardo's arrest. The adult criminal convictions were for operating an uninsured motor vehicle (in 1997 and 1998) and for driving without a license (in 1997, 1998, and 1999) . In addition, the presentence report listed three arrests for driving under the influence of alcohol (in 1999, 2000, and 2009) not leading to conviction, which are the subject of this appeal, and two pending charges for domestic battery incidents (both in 2001). The defendant made no objections at sentencing with respect to the calculation of the guidelines nor to any of the factual findings in the presentence report. The district court sentenced Guajardo to a below-guidelines sentence of 40 months in prison.
Appellant Guajardo argues on appeal that the district judge erred both in relying on prior arrests not leading toconviction and in basing his decision not to consider the absence of a "fast track" program in the Northern District of Illinois on the appellant's criminal record, including the prior arrests.
Because the appellant did not raise these objections during the sentencing hearing, we review the decisions for plain error. United States v. Longstreet, 567 F.3d 911, 928 (7th Cir. 2009) (citations omitted). To establish plain error, the defendant must show: "(1) an error; (2) that is plain; (3) that affected his substantial rights; and (4) that seriously affects the fairness, integrity, or public reputation of the judicial proceedings." United States v. Montgomery, 390 F.3d 1013, 1017 (7th Cir. 2004). We find no plain error.
A district judge has wide discretion to consider a defendant's background at sentencing. See 18 U.S.C. § 3661 (). There is a constitutional limit, however. The Due Process Clause of the Fifth Amendment requires that information used for sentencing be accurate. United States v. Tucker, 404 U.S. 443, 447 (1972); see also Townsend v. Burke, 334 U.S. 736, 741 (1948) (Fourteenth Amendment); United States ex rel. Welch v. Lane, 738 F.2d 863, 864 (7th Cir. 1984) (FourteenthAmendment). The judge may consider information only if it has "sufficient indicia of reliability to support its probable accuracy." United States v. Hankton, 432 F.3d 779, 790 (7th Cir. 2005), quoting United States v. Robinson, 164 F.3d 1068, 1070 (7th Cir. 1999).
These principles lay a well-known constitutional trap in federal sentencing. A presentence report is required to report both prior convictions and prior arrests.1 Although the presentence report must provide this information about arrests not leading to conviction, a judge's consideration of these arrests can present a due processproblem if the arrests do not reflect reliable information of wrongdoing. Hankton, 432 F.3d at 790 (). A sentencing court may not rely on the prior arrest record itself in deciding on a sentence or in imposing an upward departure. U.S.S.G. § 4A1.3(a)(3). But the court may still consider the underlying conduct detailed in arrest records where there is a sufficient factual basis for the court to conclude that the conduct actually occurred. See United States v. Torres, 977 F.2d 321, 330 n.4 (7th Cir. 1992) (citation omitted) ("while arrest record alone will not justify a departure, detailed police investigation reports may supply reliable information of prior similar adult criminal conduct"); United States v. Terry, 930 F.2d 542, 546 (7th Cir. 1991) (); see also United States v. Turner, 604 F.3d 381, 385 (7th Cir. 2010) () (citations and quotations omitted).
While we find that the district court erred in considering two out of three of Guajardo's arrests, for which there was inadequate information in the presentence report, we conclude that there was no plain error. Guajardo has not shown that he was prejudiced by the district judge's consideration of the arrests. We basethis conclusion on the below-guidelines sentence, the district judge's consideration of Guajardo's criminal record as a whole, and the weight the district court clearly gave to his more serious drug trafficking conviction.
The presentence report for Guajardo listed three arrests—in 1999, 2000, and 2009—for driving under the influence of alcohol. None of those arrests led to a conviction. The third case was still pending when the probation officer prepared the presentence report. The government concedes that the district judge erred in considering and referring to the first two arrests. The presentence report listed no details about those first two arrests, and there was no basis on which the judge should have considered them, which the judge would have recognized if the issue had been raised.
As to the third arrest, we agree with the government that the district judge was justified in considering the factual circumstances of the arrest. Those circumstances were detailed in the presentence report and were not disputed by the defendant. See United States v. Aviles-Solarzano, 623 F.3d 470, 475 (7th Cir. 2010), citing Fed. R. Crim. P. 32 (i)(3)(A) (). The presentence report summarized the police arrest report for the third arrest, stating that Guajardo was pulled over by the police because he was driving in and out of the northern curbside lane. Guajardo provided the police officer with false identification in the form of a driver's license with a fake name and the wrong birthdate. He admitted that he had beendrinking, and he was arrested for driving under the influence. The report documented that he "emanated a strong odor of alcohol and his eyes were bloodshot and watery and his eyelids were droopy." This report gave the court sufficient grounds for finding the defendant was actually driving under the influence, if the issue had been raised. The district judge was justified in using the uncontested facts of this arrest as reported in the presentence report in his consideration of Guajardo's sentence. There was also no error, for example, in the judge's conclusion that the defendant's record included "some suggestion of . . . irresponsible alcohol consumption and driving."
As to the first two arrests, under plain error review, after finding that there was a "clear...
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