First Circuit: Series of Arrests Warrants Upward Departure

By Robyn Hagan Cain on August 29, 2012 | Last updated on March 21, 2019

Your client is innocent until proven guilty. And those arrests that never resulted in charges? Irrelevant at trial.

But the First Circuit Court of Appeals ruled this week that uncharged arrests can be relevant to a sentencing judge's upward departure determination.

Joseph Lozada-Aponte pleaded guilty to being a felon in possession of a firearm, after shipping an assault rifle from Florida to Puerto Rico. He was sentenced to 46 months in prison. Lozada appealed.

In calculating the appropriate guideline sentencing range, the district court applied a two-category upward departure under U.S.S.G. § 4A1.3(a)(1), moving Lozada from criminal history Category I to Category III. Central to the district court's decision to depart upward were Lozada's three prior convictions, including a 1988 conviction for attempted murder and armed violence that resulted in a six-year prison sentence, and his long string of arrests and criminal charges in multiple jurisdictions since.

Although the age of the three prior convictions resulted in zero criminal history points under the default Sentencing Guidelines formula, district courts have discretion to depart upward if reliable information shows that a criminal history level substantially under-represents the seriousness of a defendant's criminal history or the likelihood that he would commit other crimes in the future.

While "a mere arrest, especially a lone arrest, is not evidence that the person arrested actually committed any criminal conduct," the First Circuit Court of Appeals has previously suggested that an upward departure from the guideline range may be appropriate for "a series of past arrests" which "might legitimately suggest a pattern of unlawful behavior even in the absence of any convictions."

Last week, the First Circuit held that a series of arrests can also be considered as a basis for departure due to under-representation of criminal history.

Here, Lozada's frequent run-ins with law enforcement in Florida, Illinois, and Puerto Rico, some of which apparently involved firearms, were adequately suggestive of unlawful misbehavior for the district court to determine that his 1988 conviction for a serious and violent crime should be viewed not as a thing of the past but as indicative of a penchant for dangerous criminality not typically associated with a Category I criminal history.

A criminal defendant's past does not stay in the past during sentencing. If your client has a series of arrests, in addition to prior convictions, the First Circuit Court of Appeals will likely affirm an upward departure in sentencing.

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