Upward Variance Based on Defendant's Arrest Record Plain Error, But Not So Bad That It Requires Reversal

United States v. Jones, No. 06-30855 (5th Cir. June 15, 2007) (Smith, Benavides, Dennis)

Just a week after being placed on probation in Louisiana state court for attempted possession of crack with intent to distribute, a felony, Jones was caught with a gun. He pled guilty in federal court to a felon-in-possession charge, and was looking at a guideline range of 30 to 37 months (17, III). At sentencing the district court advised the parties that it was considering an above-guideline sentence, and granted a continuance for the parties to submit memos on the matter. "In its memo, the government did not argue for a sentence outside the range." When the sentencing hearing resumed, the district court imposed a non-guideline sentence of 60 months on the grounds that Jones's "extensive arrest record indicates to me that his criminal history category probably or clearly understates the significance of his past criminal conduct" and was evidence that Jones had "some kind of fascination with guns."

Jones appealed his sentence, naturally "arguing that the court erred in considering his arrest record at sentencing." Unfortunately, Jones didn't object in the district court and therefore failed to preserve the issue. So the court of appeals reviewed for plain error.

The court had no trouble concluding that there was error and that it was plain. After all, guideline 4A1.3(a)(3) flat out says that "[a] prior arrest record itself shall not be considered for purposes of an upward departure," and the record clearly showed that the district court based the above-guideline sentence on Jones's arrest record. The court assumed for the sake of argument that the error affected Jones's substantial rights,* but concluded, unconvincingly, that the error did not affect the fairness, integrity, or public reputation of judicial proceedings:

Neither party disputed that Jones had a history with guns, and the court was “particularly disturbed” by Jones’s possession of a gun little more than a week after a state court felony conviction. The court engaged in a lengthy discussion of the defendant’s criminal history and the offense characteristics, and it addressed the arguments raised by defense counsel. Finally, the court sought to align Jones’s sentence with similarly situated defendants, and it sentenced Jones in line with United States v. Smith, 440 F.3d 704 (5th Cir. 2006), in which we upheld a larger departure to sixty months for a felon-in-possession charge. Our respect for the district court’s diligent effort at the sentencing hearing is not undermined by its unnecessary discussion of Jones’s arrest record.

*(The court "noted that this circuit has applied two different tests to determine whether an error in sentencing affected substantial rights." The "objective" test says "that error affects substantial rights only if the district court cannot impose the same sentence on remand." The "subjective" test, on the other hand, "states that error affects substantial rights where there is a reasonable probability that, but for the error, the court would have imposed a lesser sentence." The court didn't pick a horse in this dispute, because of the way it handled the fourth prong of plain-error review here.)