United States v. Lovoyne Drain, 740 F.3d 426

Drain appeals an above-guidelines sentence for possession of a firearm by a felon under 18 U.S.C. § 922(g)(1).
Drain argues the district court violated § 4A1.3(a)(3) and due process by considering unadjudicated arrests, many drug/violence related.
Drain had 17 unadjudicated arrests since 1993, plus juvenile adjudications and multiple adult convictions, with 3 juvenile offenses and 6 of 10 adult convictions reflected in the record.
The presentence report set an offense level of 18 and criminal-history category III, yielding 33–41 months; the court imposed 57 months, above the guidelines range, after considering the arrest history and drug-related conduct.
The court treated the policy statements as advisory post-Booker and relied on Drain’s admissions and overall history to evaluate § 3553(a) factors; the sentence was upheld as reasonable.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 4A1.3(a)(3) barred use of unadjudicated arrests for an above-guidelines sentence.	Drain contends the arrest record cannot support an enhancement.	The government argues § 4A1.3(a)(3) is advisory and may be weighed under § 3553(a).	Advisory; may consider arrest history under § 3553(a); not reversible.
Whether due process was violated by relying on unadjudicated arrests.	Drain asserts unadjudicated arrests may reflect unreliable wrongdoing.	Government maintains arrests can corroborate pattern of criminality when supported by admissions.	Court can rely on arrest history as part of holistic § 3553(a) analysis when supported by reliable information and admissions.
Whether reliance on advisory policy statements and departures analysis was proper post-Booker.	Drain argues policy statements should govern above-guidelines sentences.	Policy statements are advisory; departures analysis is obsolete but can guide § 3553(a).	Advisory framework; permissible to rely on § 3553(a) without formal departures.

Lopez-Hernandez v. United States, 687 F.3d 900 (7th Cir. 2012) (analysis of unadjudicated arrests and similarity to offense)
United States v. Guajardo-Martinez, 635 F.3d 1056 (7th Cir. 2011) (due process concerns with unreliable arrest information)
United States v. Lucas, 670 F.3d 784 (7th Cir. 2012) (advisory nature of guidelines; use in § 3553(a) analysis)
United States v. Reyes-Medina, 683 F.3d 837 (7th Cir. 2012) (policy statements advisory post-Booker)
United States v. Jackson, 547 F.3d 786 (7th Cir. 2008) (treatment of advisory guidelines and § 3553(a) considerations)
United States v. Brown, 732 F.3d 781 (7th Cir. 2013) (departure provisions obsolete; analogue guidance permissible)
United States v. Terry, 930 F.2d 542 (7th Cir. 1991) (reliable information may justify consideration of conduct not charged)
United States v. Ruzzano, 247 F.3d 688 (7th Cir. 2001) (admissions can supply factual predicate for sentencing)