United States v. Edgar Lopez-Hernande, 687 F.3d 900

Defendant, a 27-year-old Mexican citizen, pled guilty to illegal reentry after deportation (8 U.S.C. § 1326(a)) and was sentenced to 71 months, the top of the guideline range (57–71).
He had five prior convictions and 41 arrests; one conviction was for attempted armed robbery (an attempt because the wallet was empty).
Arrests contributed to criminal history category IV, shaping the 57–71 month range.
The district judge sentenced at the top citing an extraordinary criminal history and unreposed arrests, stating the sentence reflected the 41 arrests that did not result in convictions.
The defense objected to using unconvicted arrests to influence sentencing, arguing due process requires actual commission of the arrest offenses; the government agreed error but perfunctorily.
The court ultimately upheld the sentence, noting the judge could consider underlying conduct from arrest records with a sufficient factual basis, and rejected a cultural assimilation adjustment.

Issue	Plaintiff's Argument	Defendant's Argument	Held
May a court consider arrest records for sentencing within a guideline range?	Guajardo-Martinez prohibits using prior arrest record itself.	Arrests can be used if underlying conduct is supported by reliable facts.	Yes; underlying conduct in arrest records may be considered within-range when supported.
Did the 41 arrests without convictions justify top-of-range sentencing?	Arrests should not influence sentence without convictions.	Arrest pattern indicative of recidivism supports heightened sentence.	Yes; the total arrest pattern, with convictions, supported top of range.
Was a cultural assimilation adjustment available for illegal reentry?	Defendant’s long-standing assimilation argues for leniency.	No adjustment given risk and post-reentry criminal activity.	No; no basis for cultural assimilation adjustment.

United States v. Guajardo-Martinez, 635 F.3d 1059 (7th Cir. 2011) (court may rely on underlying conduct if supported by arrest-record facts)
United States v. Berry, 553 F.3d 273 (3d Cir. 2009) (progressive admonition on using bare arrest records; acknowledges probative exceptions)
United States v. Zapete-Garcia, 447 F.3d 57 (1st Cir. 2006) (series of past arrests may suggest pattern even without convictions)
United States v. Brown, 516 F.3d 1047 (D.C. Cir. 2008) (prior arrest record may be used for within-range sentence, not for upward departure)
United States v. Terry, 930 F.2d 542 (7th Cir. 1991) (police reports can supply underlying facts for sentencing)