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Third Circuit Holds ‘Bare’ Arrest Record Insufficient to Support Higher Sentence

by Dale Chappell

In a case that reiterated the limits a federal sentencing judge may consider at sentencing, the U.S. Court of Appeals for the Third Circuit held that when a sentencing judge relies on “bare” arrest records in a defendant’s criminal history to justify imposing a higher sentence, it is a violation of due process and plain error, requiring remand for resentencing.

After a confidential informant set up Tyrone Mitchell in three controlled drug buys, the Pennsylvania Bureau of Narcotics Investigation (working with federal agencies) obtained search warrants to comb through two houses where it believed Mitchell kept his drugs. Between the two houses, police seized drugs and guns and charged Mitchell with 17 counts of various drug and gun crimes. At the end of a seven-day trial, a jury found Mitchell guilty of all charges.

The issue in Mitchell’s case came down to sentencing. Mitchell himself described his criminal history as “staggering,” and indeed, he did qualify as a career offender. That put him at a sentencing range of 30 years to life. But the sentencing judge did more than just rely on Mitchell’s prior convictions to impose a sentence of 85 years in prisons without parole. He relied on Mitchell’s 18 arrests that didn’t result in convictions.

“This is as long and serious of a criminal record as I’ve seen in twelve and half years on the bench,” Judge Paul S. Diamond, of the U.S. District Court for the Eastern District of Pennsylvania, said in imposing the sentence. “It is perfectly apparent that Mitchell has absolutely no respect for the law at all. And if he remains at liberty, his criminal record will simply go on.” The judge noted Mitchell’s past convictions, “as well as the crime he was arrested for” in the past.

On direct appeal, Mitchell argued that the judge’s reliance on the arrests without convictions to impose such a high sentence was error. The Third Circuit agreed that “Mitchell has bridged the gap between reference and reliance” on the arrests and said it was “plain error.”

In United States v. Watts, 519 U.S. 148 (1997), the Supreme Court ruled that an “acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence.” The same rule goes for conduct underlying an arrest that does not lead to a conviction. The Due Process Clause of the Fifth and Fourteenth Amendments is satisfied as long as the judge finds the facts of the underlying conduct by a preponderance of the evidence.

But a “bare” arrest record is different, and that is what the judge relied on in Mitchell’s case. The Presentence Report (“PSR”) listed those 18 arrests but no details about the conduct underlying the arrests. In order for a sentencing judge to rely on an arrest listed in the PSR, there must be details about the conduct leading to the arrest or evidence about the arrest conduct proven by a preponderance of the evidence. However, the mere fact of an arrest is not enough.

The Court reiterated that “under the Due Process Clause, a defendant cannot be deprived of liberty based upon mere speculation.” Speculation about a defendant’s criminal history, the Court said, “is problematic whether it results in an upward departure, denial of a downward departure, or causes the sentencing court to evaluate the § 3553(a) factors with a jaundiced eye.”

Accordingly, the Court vacated Mitchell’s sentence and remanded for resentencing without reliance on the bare arrest record. See: United States v. Mitchell, 944 F.3d 116 (3d Cir. 2019). 

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Related legal case

United States v. Mitchell



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