UNITED STATES OF AMERICA v. NATHAN MANSFIELD
No. 20-2981
United States Court of Appeals For the Seventh Circuit
DECIDED DECEMBER 28, 2021
ARGUED NOVEMBER 3, 2021
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:19-cr-00038 — James R. Sweeney, II, Judge.
Before KANNE, BRENNAN, and KIRSCH, Circuit Judges.
I
In January 2019, law enforcement officers intercepted a package containing 6.6 kilograms of methamphetamine. The officers then conducted a controlled delivery to Nathan Mansfield‘s home, the package‘s original destination. Once the package was opened, the officers executed an anticipatory search warrant and arrested Mansfield as he exited the rear of the house.1 A grand jury indicted Mansfield for violating
Mansfield received a copy of his presentence investigation report (“PSR“) in June 2020. That report calculated a total offense level of 31 and a criminal history category of VI and recommended an imprisonment range under the Sentencing Guidelines of 188 to 235 months.
The PSR listed 26 “[o]ther [a]rrests” of Mansfield between 1992 to 2013. These arrests involved at least 49 charges, including, among other things, domestic battery and battery resulting in bodily injury, resisting law enforcement, felony intimidation, and neglect of a dependent. The arrests also included a series of drug possession charges in 2005, 2006, and 2007, culminating in two 2013 felony charges for “Dealing in Cocaine or Narcotic,” and three 2013 felony charges for “Possession of Cocaine or Narcotic.” The disposition for 48 of these charges was listed as “Dismissed,” “No Action Taken,” or “Unknown disposition.” For the other charge—a 1999 criminal trespass charge—the disposition was listed as “Not guilty.”
Mansfield entered an open guilty plea.2 Less than a month before sentencing,
At the sentencing hearing, Mansfield‘s counsel confirmed that she and Mansfield had “read and discussed [the] presentence report.” The district court asked Mansfield‘s counsel if she had any objections “other than” the notice Mansfield filed, which “could be deemed as a request for departure.” She confirmed there were none. The district court then explained its conclusions and asked if there was “any objection or response” to the offense level and criminal history category. She responded, “No, Your Honor, subject to my argument for departure, which I have preserved for the Court‘s consideration.”
The district court next considered Mansfield‘s argument for departure and discussed the range of factors it would use to determine his sentence. Among other things, the court referenced the parties’ statements, the sentencing memorandum, the probation officer‘s input, and the
I look at the history and characteristics of the defendant; and you do have a very long history, Mr. Mansfield. And in all of these convictions and arrests, arrests that included—that were not reduced to judgments but included domestic battery, intimidation felony, battery, neglect of a dependent, many resisting law enforcement.
Circumstances warranted a sentence at the upper end of the guideline range, the district court noted, yet it pronounced a sentence of 188 months’ imprisonment, a term at the very bottom of Mansfield‘s guideline range. The court explained that this sentence was “sufficient but not greater than necessary to protect the public from further crimes of the defendant, to reflect the seriousness of the offense, and to afford adequate deterrence to criminal conduct.” The court then asked Mansfield‘s counsel whether she had a “legal objection to the [proposed] sentence” or a request for “any further elaboration ... under [
In imposing the sentence, the district court asked whether Mansfield had “[a]nything further.” For the final time, Mansfield‘s counsel responded she did not. Mansfield appealed later that day and before us challenges only his sentence.
II
First, we address Mansfield‘s argument that United States v. Esposito, 1 F.4th 484 (7th Cir. 2021), supports de novo review of his sentence. We disagree.
On appeal, Esposito argued the district court‘s decision should be reviewed de novo because his challenge was procedural. Id. (citing United States v. Ballard, 950 F.3d 434, 436 (7th Cir. 2020); United States v. Pennington, 908 F.3d 234, 238 (7th Cir. 2018)). Our court agreed with his characterization and held that de novo review was proper under the circumstances. Id. at 487. Specifically, we reasoned that Esposito‘s disputes were “properly characterized as a procedural error” because they challenged the court‘s pronouncement and explanation of his sentence. Id. (citing Gall v. United States, 552 U.S. 38, 51 (2007); Pennington, 908 F.3d at 238).
As this court has concluded, “courts only elicit waiver when they ask specific questions—like whether the defendant is satisfied with the court‘s treatment of their main arguments in mitigation—not generalized inquiries about whether the defendant was confused or had anything else to say.” Esposito, 1 F.4th at 486 (citing United States v. Speed, 811 F.3d 854, 857-58 (7th Cir. 2016); see also United States v. Mzembe, 979 F.3d 1169, 1173 (7th Cir. 2020) (“A general invitation for objections or asking, ‘anything else?’ at the end of the hearing is not sufficient, however, to show a waiver of challenges to the sufficiency of an explanation.“)). The district court‘s inquiry at the end of Esposito‘s sentencing hearing was best characterized as a “broad,” although “not completely general,” question. Id. at 486.
The circumstances here differ substantially from those in Esposito. Mansfield had many opportunities throughout his case and at the sentencing hearing to object or to seek clarification. He was asked specifically whether he had any objection or response to the presentence investigation report, the offense level and criminal history category, or the proposed sentence. Each time his counsel stated she had none. In contrast, Esposito asked for clarification about a complicated combination of concurrent and consecutive sentences after those sentences were pronounced. Neither Esposito nor his counsel could have sought this clarification before the district court made its pronouncement.
The circumstances here did not involve the type of procedural error challenged in Esposito, so we decline Mansfield‘s request for de novo review.
III
We next consider whether Mansfield waived his right to challenge the use of his arrest history during sentencing. Waiver is the intentional relinquishment of a known right. United States v. Flores, 929 F.3d 443, 447 (7th Cir. 2019), cert.
In United States v. Robinson, we explained that even though “‘a lawyer‘s statement that a defendant has no objection to the PSR does not automatically constitute a waiver,’ we consider it in light of the surrounding circumstances and the record as a whole to determine whether counsel and the defendant made a knowing and intentional decision.” Id. at 641 (quoting United States v. Garcia, 580 F.3d 528, 542 (7th Cir. 2009)). In making this determination, we consider express statements of waiver, as well as evidence of acquiescence. Id.
There is “no rigid rule for finding waiver in acquiescence.” Id. (quoting United States v. Anderson, 604 F.3d 997, 1001 (7th Cir. 2010)). Such a finding “often requires some conjecture.” Id. at 641-42 (citing Garcia, 580 F.3d at 542). In United States v. Staples, we held that the defendant “waived his right to appeal the calculation of his criminal history” because “[d]espite being provided advance notice of the PSR‘s contents and an opportunity to object before and during the sentencing hearing, [he] and his counsel did not.” 202 F.3d at 995. In other words, an affirmative decision not to object when one knows the contents of the PSR “shows intent to waive the right, not ignorance or neglect of the right.” Id.
We also consider “whether the lack of an objection could have been tactical or strategic.” Robinson, 964 F.3d at 641 (citing United States v. Jaimes-Jaimes, 406 F.3d 845, 848 (7th Cir. 2005)). Our court “will find waiver ‘if the defendant had a strategic reason to forego the argument, that is, only if the defendant‘s counsel would not be deficient for failing to raise the objection.‘” Id. at 642 (quoting United States v. Allen, 529 F.3d 390, 395 (7th Cir. 2008)). But “[i]f the government cannot proffer any strategic justification for a defendant‘s omission, we will presume an inadvertent forfeiture rather than an intentional relinquishment.” Id. (citing United States v. Moody, 915 F.3d 425, 429 (7th Cir. 2019)). In short, “[a]lthough we construe waiver principles liberally in favor of the defendant, we have time and again found waiver ... where a defendant or his counsel either concurs with the facts found in a pre-sentence report, or expressly declines to make an objection to those facts at sentencing, or both.” Id. at 642-43 (citation omitted) (collecting cases).
The question, then, is whether Mansfield waived his challenge to the court‘s consideration of his arrest history at sentencing. Mansfield raises this challenge for the first time on appeal. At no point in the previous proceedings did he ever object on this topic. That failure was not for lack of opportunity. Before his sentencing hearing, Mansfield filed a Notice of Request for Departure Due to Role
At his sentencing hearing, Mansfield‘s counsel represented that she and Mansfield had reviewed and discussed the PSR. She also made several statements constituting express waiver. The district court directly asked whether Mansfield had (1) any objection to the PSR, (2) “any objection or response” to the court‘s calculation of the offense level and criminal history category, and (3) any “legal objection to the [proposed] sentence.” Each time, Mansfield‘s counsel stated she had no objection. These express denials, combined with the missed opportunities, constitute waiver.
The government has also proffered a strategic justification for Mansfield to forego his argument before the district court. Raising Mansfield‘s arrest history—which included 26 arrests—would have highlighted his risk of recidivism. That arrest history was a bad fact. So, Mansfield‘s counsel appears to have made a strategic decision to focus on arguments for a downward departure, rather than draw the district court‘s attention to Mansfield‘s criminal history. Indeed, in the end, the court sentenced Mansfield to a prison term at the very bottom of the guideline range. In United States v. Brodie, this court recognized that “when [a] defendant selects among arguments as a matter of strategy, he also waives those arguments he decided not to present.” 507 F.3d 527, 531 (7th Cir. 2007) (citations omitted). The government‘s contention fits squarely within this precedent.
For these reasons, we hold that Mansfield waived his challenge in the district court.
IV
Even if we were to conclude that Mansfield did not waive this challenge, then at the least he forfeited his objection to the district court‘s consideration of his arrest history in the PSR. We review a forfeited objection for plain error.4 See
public reputation of judicial proceedings.‘” United States v. Julius, 14 F.4th 752, 755 (7th Cir. 2021) (quoting Greer v. United States, 141 S. Ct. 2090, 2096-97 (2021)).
Here, the first requirement—whether there was an error—determines the outcome. To decide that, initially we review if and when a criminal defendant‘s prior arrests may be considered at sentencing. Then, we judge whether the district court erred when it considered Mansfield‘s arrest history.
A
The text of relevant statutes, the U.S. Sentencing Guidelines, and this court‘s precedent form the legal framework under which a district court may
As always, our analysis begins with the text of the statute. Hughey v. United States, 495 U.S. 411, 415 (1990); Loja v. Main St. Acquisition Corp., 906 F.3d 680, 683 (7th Cir. 2018). Title
Factors to be considered in imposing a sentence. — The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider —
(1) the nature and circumstances of the offense and the history and characteristics of the defendant.
See also
The U.S. Sentencing Guidelines provide insight into the proper use of a defendant‘s arrest history. The once-mandatory Guidelines now serve as an “advisory yet still important” resource for district courts. United States v. Vasquez-Abarca, 946 F.3d 990, 994 (7th Cir. 2020); see also Booker, 543 U.S. at 233-37. As the Supreme Court has explained, “sentencing judges have discretion under
The 2018 Sentencing Guidelines Manual—the version in effect when Mansfield was sentenced—addresses how a defendant‘s arrest history may be considered. It states in pertinent part:
(2) Types of Information Forming the Basis for Upward Departure. — The information described in subsection (a)(1) may include information concerning the following:
...
(E) Prior similar adult criminal conduct not resulting in a criminal conviction.
(3) Prohibition. — A prior arrest record itself shall not be considered for purposes of an upward departure under this policy statement.
This court has ruled as to when a defendant‘s prior arrests may be considered in several decisions. In United States v. Guajardo-Martinez, we made clear that a “district judge has wide discretion to consider a defendant‘s background at sentencing.” 635 F.3d 1056, 1059 (7th Cir. 2011) (citing
One year later, in United States v. Lopez-Hernandez, a defendant argued the district court improperly considered “41 arrests that did not lead to convictions,” without first determining that he “actually engaged in the conduct for which he had been arrested.” 687 F.3d 900, 901-02 (7th Cir. 2012). The district court stated that it imposed a sentence at the top of the guideline range because of the defendant‘s “extraordinary criminal history, especially the number of arrests for serious offenses that did not lead to convictions.” Id. at 902. This court used Lopez-Hernandez as an opportunity to clarify the holding in Guajardo-Martinez, which had held that “a sentencing court may not rely on the prior arrest record itself in deciding on a sentence.” Id. (citations omitted) (quoting Guajardo-Martinez, 635 F.3d at 1059). But the “italicized [word] is key, because” a “court may still consider the underlying conduct detailed in arrest records” so long as it is reliable. Id. (quoting Guajardo-Martinez, 635 F.3d at 1059). Thus, a district court may consider arrest history during sentencing when “police reports ... supply ‘underlying facts’ which at least arguably contain reliable information about [the defendant‘s] prior similar adult conduct” and the defendant has “failed to object to [those] underlying facts.” Id. (citations omitted) (quoting United States v. Terry, 930 F.2d 542, 546 (7th Cir. 1991)).
In United States v. Drain, we considered whether the district court violated the Fifth Amendment‘s Due Process Clause when it sentenced a defendant “based on unfounded speculation that his unadjudicated arrests stemmed from actual criminal activity.” 740 F.3d at 432. We explained “that [d]ue process requires that courts base their sentencing decisions on reliable information.” Id. (citation omitted). Unadjudicated arrests may present a due-process problem when “the arrests do not reflect reliable information of wrongdoing.” Id. (quoting Guajardo-Martinez, 635 F.3d at 1059).
Drain reaffirmed that “a substantial history of arrests, especially if they are similar to the offense of conviction, can be a reliable indicator of a pattern of criminality, suggesting a recidivism risk, and may be considered in weighing the sentencing factors under § 3553(a).” Id. (citations omitted). The Drain case was “one of those ‘situations where the number of prior arrests, and/or the similarity of prior charges to the offense of conviction, becomes so overwhelming and suggestive of actual guilt that they become exceedingly difficult to ignore.‘” Id. (quoting United States v. Berry, 553 F.3d 273, 284 (3d Cir. 2009), cited with approval in Lopez-Hernandez, 687 F.3d at 904).
In sum, the relevant sentencing statutes, the U.S. Sentencing Guidelines, and our precedent establish that a district court may consider a defendant‘s arrest history during sentencing, provided that the information is reliable. Reliability can be shown by “the number of prior arrests” or “the similarity of prior charges to the offense of conviction.” Id. at 432 (internal quotation marks and citation omitted). We apply this rule with deference. A district court is best positioned to make reliability determinations based on facts such as the number, nature, and resolution of a defendant‘s prior arrests, and to make a record of its decisions and its reasons therefor.
B
Under this legal framework, we conclude the district court did not err in considering Mansfield‘s arrest history.
As explained above, “a substantial history of arrests, especially if they are similar to the offense of conviction, can be a reliable indicator of a pattern of criminality, suggesting a recidivism risk, and may be considered in weighing the sentencing factors under”
Further, reviewing courts should “expect more of an explanation for a non-guideline sentence than for a within-guideline sentence.” Vasquez-Abarca, 946 F.3d at 994 (citing Peugh v. United States, 569 U.S. 530, 542 (2013)). Here, the district court imposed a sentence at the very bottom of the guideline range. As a result, we do not expect the detailed explanation that we would in Lopez-Hernandez or Drain. We can therefore say that “[a]lthough the presentence investigation report did not describe the underlying facts of the unadjudicated arrests, the district court could reasonably rely on [Mansfield‘s] long arrest record in combination with his adjudicated criminal history as a part of its holistic evaluation of the § 3553(a) factors.” Drain, 740 F.3d at 433.
Finally, Mansfield argues an affirmance will create a circuit split with the First, Third, and Fifth Circuits. We disagree. This court has already addressed the majority of out-of-circuit cases Mansfield cites. In Lopez-Hernandez, we explained that we had “no quarrel” with the Third Circuit‘s statement “that ‘unsupported speculation about a defendant‘s background is problematic.‘” 687 F.3d at 903-04 (quoting Berry, 553 F.3d at 281). Nor did we have issue with its “statement that a ‘bare arrest record’ is an inadequate ground for a sentence adjustment.” Id. at 904 (quoting Berry, 553 F.3d at 284). In fact, both the Third and Fifth Circuits
Lopez-Hernandez also addressed the First Circuit precedent cited by Mansfield—United States v. Zapete-Garcia, 447 F.3d 57 (1st Cir. 2006). Our court distinguished Zapete-Garcia because the defendant in that case “was arrested only a single time, more than a decade ago.” Lopez-Hernandez, 687 F.3d at 904 (quoting Zapete-Garcia, 447 F.3d at 60-61).5 The remaining circuit decision we must address—United States v. Mateo-Medina,
845 F.3d 546 (3d Cir. 2017)—is distinguishable for the same reason. Id. at 552 (noting that it “strain[ed] credulity to argue” that a fifteen-year-old DUI and a passport violation constituted an “extensive interaction with the criminal justice system“). So, the First, Third, and Fifth Circuits’ precedents are consistent with our ruling today, both in theory and in application.
The number of arrests and similarity of charges in Mansfield‘s case are “so overwhelming and suggestive of actual guilt that they become exceedingly difficult to ignore.” Drain, 740 F.3d at 432 (citations omitted). Thus, the district court did not err in considering Mansfield‘s arrest history.
V
Mansfield waived his challenge to the district court‘s consideration of his arrest history at sentencing. In the alternative, the district court did not err when it considered his arrest history, which was sufficiently reliable given the number of prior arrests and the similarity of previous charges. We therefore AFFIRM Mansfield‘s sentence.