Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:09-CR-00179-1-Robert M. Dow, Jr., Judge.
The opinion of the court was delivered by: Hamilton, Circuit Judge.
Before MANION, EVANS, and HAMILTON, Circuit Judges.
Juan Guajardo-Martinez, a 34-year-old Mexican national, pled guilty to illegal re-entry of a removed alien subsequent to a conviction for com-mission of an aggravated felony, in violation of 8 U.S.C. §§ 1326(a) and (b)(2). Guajardo was given a below-guidelines sentence and has appealed. We rejected defense counsel's request to withdraw as appointed counsel pursuant to Anders v. California, 386 U.S. 738 (1967), and ordered briefing as to the district court's consideration of the defendant's prior arrests that led to neither a conviction nor a finding by the district court that the alleged unlawful conduct was proven by a preponderance of the evidence. Guajardo also argues on appeal that the district court erred in not granting a lower sentence based on the fact that the Northern District of Illinois does not have a "fast-track" program, because the judge's decision was premised on the appellant's criminal record, including the prior arrests not leading to conviction. While the district court erred in considering two of the defendant's three arrests not leading to conviction, we find that there was no prejudice to defendant and no plain error. We affirm the district court's judgment.
Guajardo apparently first entered the United States with his mother on a tourist visa in August 1995, when he was 18 years old, to visit an older sister who was living in Illinois. He overstayed his visa, found work, and eventually married. In 2000, he was arrested and convicted in state court of possession with intent to deliver more than 5,000 grams of cannabis. He was sentenced to four years in prison. He was released on parole in 2002 and was deported to Mexico. Sometime later in 2002, Guajardo illegally returned to the United States. He found employment as a carpenter and a foreman. He and his wife had a child and later divorced.
In February 2009, Guajardo was arrested for driving under the influence of alcohol. After it was discovered that he was living unlawfully in the United States, he was taken into custody by Immigration and Customs Enforcement agents. On May 27, 2009, Guajardo pled guilty to illegal re-entry.
The Presentence Investigation Report calculated Guajardo's Sentencing Guidelines range as 46 to 57 months. The range was based on a total offense level of 21, including a 16-level enhancement because of the drug trafficking offense in 2000, and a criminal history category of III based on a total of 6 criminal history points.
The presentence report also documented numerous other arrests, minor convictions, and warrants for Guajardo's arrest. The adult criminal convictions were for operating an uninsured motor vehicle (in 1997 and 1998) and for driving without a license (in 1997, 1998, and 1999). In addition, the presentence report listed three arrests for driving under the influence of alcohol (in 1999, 2000, and 2009) not leading to conviction, which are the subject of this appeal, and two pending charges for domestic battery incidents (both in 2001). The defendant made no objections at sentencing with respect to the calculation of the guidelines nor to any of the factual findings in the presentence report. The district court sentenced Guajardo to a below-guidelines sentence of 40 months in prison.
Appellant Guajardo argues on appeal that the district judge erred both in relying on prior arrests not leading to conviction and in basing his decision not to consider the absence of a "fast track" program in the Northern District of Illinois on the appellant's criminal record, including the prior arrests.
Because the appellant did not raise these objections during the sentencing hearing, we review the decisions for plain error. United States v. Longstreet, 567 F.3d 911, 928 (7th Cir. 2009) (citations omitted). To establish plain error, the defendant must show: "(1) an error; (2) that is plain; (3) that affected his substantial rights; and (4) that seriously affects the fairness, integrity, or public reputation of the judicial proceedings." United States v. Montgomery, 390 F.3d 1013, 1017 (7th Cir. 2004). We find no plain error.
I. Arrests Not Leading to Conviction
A district judge has wide discretion to consider a defendant's background at sentencing. See 18 U.S.C. § 3661 ("No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence."). There is a constitutional limit, however. The Due Process Clause of the Fifth Amendment requires that information used for sentencing be accurate. United States v. Tucker, 404 U.S. 443, 447 (1972); see also Townsend v. Burke, 334 U.S. 736, 741 (1948) (Fourteenth Amendment); United States ex rel. Welch v. Lane, 738 F.2d 863, 864 (7th Cir. 1984) (Fourteenth Amendment). The judge may consider information only if it has ...