United States v. Johnson, 2011 U.S. App. LEXIS 15634

Johnson pleaded guilty to felon in possession of a firearm (18 U.S.C. § 922(g)(1)).
Two officers pursued Johnson in New Orleans after he discarded a loaded semi-automatic pistol and fled while resisting arrest.
The presentence report showed two marijuana possession convictions and one marijuana with intent to distribute conviction; probation on the most recent offense and a burglary of an inhabited dwelling charge were noted.
The PSR reported at least twelve additional, uncharged arrests since age fifteen, with limited information about underlying facts or reasons for non-prosecution.
The district court calculated an advisory Guidelines range of 37–46 months and imposed a 63-month sentence after an upward variance based in part on Johnson’s arrest history.
Johnson objected that the variance relied on bare arrest records lacking corroborating evidence.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court erred by considering bare arrest records at sentencing	United States argues arrests informed the variance and sentence.	Johnson contends bare arrest records are unreliable and impermissible for a sentence.	Yes; it was error to consider bare arrests at sentencing.
Whether the same sentence would have been imposed without the arrests	Government contends the upward variance was justified by the offenses and conduct beyond arrests.	Johnson asserts the arrests did not provide corroborating evidence and should not have affected the sentence.	Vacate and remand for resentencing to determine if the sentence would be the same absent arrests.
Whether remand is required to permit proper review of the sentencing rationale	Government relies on other permissible factors, but the record is unclear whether the same sentence would be imposed.	Johnson argues that the district court’s assurances it did not base the sentence on arrests should suffice.	Remand required to allow proper consideration and explanation of the sentence without arrests.

Gall v. United States, 552 U.S. 38 (2007) (due-process and reasonableness review of sentencing)
United States v. Robert Jones, 444 F.3d 430 (5th Cir. 2006) (arrests alone not reliable for sentencing)
Earnest Jones, 489 F.3d 679 (5th Cir. 2007) (prior arrests without corroboration error at sentencing)
United States v. Watts, 519 U.S. 148 (1997) (due-process requirement for reliable sentencing information)
Williams v. United States, 503 U.S. 193 (1992) (harmless-error and review of non-Guidelines sentences)
United States v. Lopez-Velasquez, 526 F.3d 804 (5th Cir. 2008) (prior arrests alone insufficiently reliable for upward departure)
United States v. Cantu-Dominguez, 898 F.2d 968 (5th Cir. 1990) (prior arrests without convictions generally not sufficient for departure)
United States v. Tello, 9 F.3d 1119 (5th Cir. 1993) (necessity of clear record showing the same sentence would be imposed absent error)
United States v. Ibarra-Luna, 628 F.3d 712 (5th Cir. 2010) (non-Guidelines sentencing must be justified with reliable factors and documented reasoning)
Fulbright & Wetzel, 804 F.2d 847 (5th Cir. 1986) (due-process considerations in sentencing records and reliability of information)
United States v. Fields, 483 F.3d 313 (5th Cir. 2007) (reliability of information for sentencing purposes)