7th Circuit affirms above-guideline sentence for gun possession

The District Court did not abuse its discretion in sentencing a man who pleaded guilty to one count of possession of a firearm by a felon to a sentence above guidelines, the 7th Circuit Court of Appeals ruled.

Lovoyne Drain argued in United States of America v. Lovoyne Drain, 12-3684, that Judge Sarah Evans Barker ran afoul of U.S.S.G. Section 4A1.3(a)(3) and the Due Process Clause by considering his record of unadjudicated arrests, many of which involved drugs or violence. His presentence report calculated a guidelines imprisonment range of 33 to 41 months; Barker imposed a 57-month sentence.

“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,” Judge Diane Sykes wrote. “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,” she continued. “Collectively, this information allowed the court to draw a reliable negative inference about his risk of recidivism.”

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