SYKES, Circuit Judge.
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
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, see 18 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.
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.
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:
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 respect
Before imposing sentence, the judge addressed the factors in 18 U.S.C. § 3553(a) at some length, eventually concluding that the guidelines range of 33 to 41 months didn't fairly reflect Drain's criminal lifestyle, admitted drug conduct, and violent propensities. The judge also took note of the condition of the dogs recovered from Drain's residence and his inconsistent statements about how he obtained the Beretta. Finally, the judge stressed that Drain had admitted possessing the stolen FBI rifle and bragged about handling many other firearms. The judge imposed a sentence of 57 months, 16 months above the guidelines range. The judge asked Drain's lawyer if he had any legal objection to the sentence or needed any additional explanation of the reasons behind it; counsel said he did not.
On appeal Drain first argues that the district court violated the policy statement in § 4A1.3(a)(3) of the guidelines by relying on his arrest record to impose a sentence above the guidelines range. The government initially responds by arguing that the judge's remarks about Drain's arrests were limited to the colloquy with Drain and did not influence her consideration of the § 3553(a) factors. The government's point is difficult to square with the sentencing transcript. The judge commented on Drain's arrest history before imposing sentence, specifically noting that 17 of his arrests were for offenses that involved drugs or violence and emphasizing his pattern of criminality. We think it's clear that the court took into account Drain's history of unadjudicated arrests in arriving at the above-guidelines sentence.
That doesn't mean that Drain's challenge to his sentence is a winner. The policy statement in § 4A1.3(a)(3) says that "[a] prior arrest record itself shall not be considered for purposes of an upward departure." U.S.S.G. § 4A1.3(a)(3). Acknowledging that the sentencing guidelines are advisory, see Booker, 543 U.S. at 245, 125 S.Ct. 738, Drain nevertheless insists that the sentencing court was required to follow § 4A1.3(a)(3) and refrain from considering his arrest record to impose an above-guidelines sentence. This outcome, he says, is dictated by 18 U.S.C. § 3553(a)(5), which instructs the court to consider the Sentencing Commission's policy statements.
But consideration does not mean adherence. Section 3553(a)(5) does not mandate that the court follow the Commission's policy statements. United States v. Reyes-Medina, 683 F.3d 837, 841-42 (7th Cir.2012); United States v. Jackson, 547 F.3d 786, 793 (7th Cir.2008); United States v. Haj-Hamed, 549 F.3d 1020, 1027 (6th Cir.2008); United States v. Martin, 520 F.3d 87, 93 (1st Cir.2008); United States v. Bradford, 500 F.3d 808, 812 (8th Cir.2007); United States v. Bungar, 478 F.3d 540, 544 (3d Cir.2007). Like the rest of the guidelines, § 4A1.3(a)(3) is advisory. United States v. Lucas, 670 F.3d 784, 791 (7th Cir.2012); United States v. Johnson, 612 F.3d 889, 896 (7th Cir.2010); Jackson, 547 F.3d at 793. Indeed, as a policy statement, § 4A1.3(a)(3) has always been nonbinding, and after Booker a policy statement is "`intended to be given even less consideration by sentencing judges.'" Reyes-Medina, 683 F.3d at 841-42 (quoting United States v. Robertson, 648 F.3d 858, 859 (7th Cir.2011)). Certainly a sentencing judge may choose to follow those policy statements post-Booker as a part of the § 3553(a) analysis, Lucas, 670 F.3d at 791; Johnson, 612 F.3d at 896, but the
Drain also argues that the district court violated his Fifth Amendment right to due process by sentencing him based on unfounded speculation that his unadjudicated arrests stemmed from actual criminal activity. Due process requires that courts base their sentencing decisions on reliable information. Lucas, 670 F.3d at 792. In United States v. Guajardo-Martinez, 635 F.3d 1056 (7th Cir.2011), we noted that considering unadjudicated arrests "can present a due process problem if the arrests do not reflect reliable information of wrongdoing." Id. at 1059. After all, an arrest alone does not necessarily mean guilt. United States v. Terry, 930 F.2d 542, 546 (7th Cir.1991). Citing § 4A1.3(a)(3), we said in Guajardo-Martinez that "[a] sentencing court may not rely on the prior arrest record itself in deciding on a sentence or in imposing an upward departure."
But we have also held that a substantial history of arrests, especially if they are similar to the offense of conviction, can be a reliable indicator of a pattern of criminality, suggesting a recidivism risk, and may be considered in weighing the sentencing factors under § 3553(a). See United States v. LopezHernandez, 687 F.3d 900, 904 (7th Cir.2012) (41 similar arrests); United States v. Walker, 98 F.3d 944, 948 (7th Cir.1996) (23 similar arrests). But see United States v. Johnson, 648 F.3d 273, 278 (5th Cir.2011) (concluding that five similar arrests, without the underlying facts, were not indicative of actual guilt); United States v. Berry, 553 F.3d 273, 284 (3d Cir.2009) (concluding that a "couple" of minor arrests did not suggest actual guilt); United States v. Zapete-Garcia, 447 F.3d 57, 61 (1st Cir.2006) (concluding that a single prior arrest was improperly considered). Drain had adult convictions for possessing cocaine and marijuana, carrying a gun, and resisting law enforcement. He also had juvenile adjudications for battery. Thirteen of the unadjudicated arrests were for those very crimes, and Drain does not dispute that the arrests occurred; nor does he challenge their factual basis. This arrest history thus makes Drain's case one of those "situations where the number of prior arrests, and/or the similarity of prior charges to the offense of conviction, becomes so overwhelming and suggestive of actual guilt that they become exceedingly difficult to ignore." Berry, 553 F.3d at 284, cited with approval in Lopez-Hernandez, 687 F.3d at 904.
During oral argument, Drain's counsel suggested that a statement in Lopez-Hernandez supports his position that the policy statement in § 4A1.3(a) applies to all above-guidelines sentences. In that case we observed that § 4A1.3(a) by its terms does not apply to sentences within or below
The sentencing court did not abuse its discretion here. Although the presentence investigation report did not describe the underlying facts of the unadjudicated arrests, the district court could reasonably rely on Drain's long arrest record in combination with his adjudicated criminal history as a part of its holistic evaluation of the § 3553(a) factors. The relevance and reliability of the arrest record was bolstered by Drain's own acknowledgement at sentencing that he had a long and unbroken history of criminal conduct.
In his colloquy with the judge, Drain admitted that drug dealing had been his sole livelihood as an adult, that drug use had been an "every day pursuit," and that he acquired his guns to protect his drug business. These admissions supplied an adequate factual predicate for the court to consider the string of arrests, among all the other sentencing factors, to arrive at a reasonable sentence. See United States v. Ruzzano, 247 F.3d 688, 698 (7th Cir.2001) ("Although the district court did refer to Ruzzano's investors as `victims,' this was not improper because Ruzzano admitted committing fraud in the plea agreement."); Terry, 930 F.2d at 545 ("Examples of reliable information of criminal conduct not resulting in a conviction include admissions by the defendant that he committed criminal acts for which he was never charged...."). Collectively, this information allowed the court to draw a reliable negative inference about his risk of recidivism. See Lopez-Hernandez, 687 F.3d at 903.
AFFIRMED.