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United States v. Drain

United States Court of Appeals, Seventh Circuit

January 21, 2014

UNITED STATES of America, Plaintiff-Appellee,
v.
Lovoyne DRAIN, Defendant-Appellant.

Argued June 13, 2013.

Page 427

Maryann T. Mindrum, Attorney, James M. Warden, Attorney, Office of the United States Attorney, Indianapolis, IN, for Plaintiff-Appellee.

William H. Dazey, Jr., Attorney, Sara J. Varner, Attorney, Indiana Federal Community Defenders, Inc., Indianapolis, IN, for Defendant-Appellant.

Before MANION, SYKES, and TINDER, Circuit Judges.

SYKES, Circuit Judge.

Lovoyne Drain appeals his above-guidelines sentence for possession of a firearm by a felon, 18 U.S.C. § 922(g)(1). He argues that the district judge ran afoul of U.S.S.G. § 4A1.3(a)(3) and the Due Process Clause by considering his record of unadjudicated arrests, many for offenses involving drugs or violence. But § 4A1.3(a)(3), like every provision of the sentencing guidelines, is advisory. And the judge did not violate Drain's right to due process by taking account of his arrest history as part of her evaluation of the sentencing factors under 18 U.S.C. § 3553(a). Accordingly, we affirm Drain's sentence.

I. Background

In February 2010 Drain sold a rifle engraved with the warning " Law Enforcement Use Only" to a government informant. The rifle had been stolen from an FBI vehicle a few months earlier. Later, in July 2010, police officers went to Drain's home to execute a warrant for his arrest on charges of dealing cocaine. They observed drug paraphernalia in the home, obtained a search warrant for the residence, and recovered a loaded Beretta 9mm pistol with an obliterated serial number. Drain's fingerprints were found on bullets in the gun's magazine. The officers also discovered seven injured and

Page 428

malnourished pit bulls held in squalid conditions at Drain's residence.

After his arrest Drain confessed to federal agents that he had fired the stolen FBI rifle and knew it belonged to law enforcement, but he insisted that he was only hiding the weapon for an acquaintance. In a later interview, Drain initially denied that he had ever handled the Beretta— or, indeed, that he possessed any guns at his residence— but changed his story and said he was holding that gun for a jailed acquaintance. After he was confronted with the fingerprint analysis, Drain admitted loading 9mm ammunition into the Beretta and bragged that his fingerprints probably are on every gun in Indiana.

Drain was charged with two counts of unlawful possession of a firearm by a felon, see 18 U.S.C. § 922(g)(1), and one count of unlawful possession of ammunition by a felon, see id. § 924(a)(2). He eventually pleaded guilty to a single violation of § 922(g)(1) based on his possession of the Beretta. The probation officer who drafted Drain's presentence report calculated a total offense level of 18 and a criminal-history category of III, resulting in a guidelines imprisonment range of 33 to 41 months. Drain's criminal-history score did not reflect his 3 juvenile offenses, 6 of his 10 adult convictions, a pending drug case, or 17 unadjudicated arrests since 1993.[1] Accordingly, the probation officer suggested that an " upward departure" under U.S.S.G. § 4A1.3(a)(1) might be appropriate because Drain's criminal-history category understated his extensive criminal conduct, much of which involved drugs or violence. Although the presentence report described the facts underlying Drain's adult convictions and juvenile adjudications, the events underlying the unadjudicated arrests were not described. Drain objected to the probation officer's suggestion, arguing that departures are obsolete after United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and that his criminal-history category adequately accounted for his criminal history.

At sentencing the district judge adopted the guidelines calculations from the presentence report without further objection. After Drain's allocution, the judge questioned him at length about his extensive criminal history given his relative youth (33 years old) and about the role drugs have played in his life. We set forth the colloquy at length here because it forms the basis for the arguments Drain raises on appeal.

THE COURT: One of the complicating factors here is your substantial criminal history, and the fact that you've had obviously so much trouble staying on the straight and narrow.
THE DEFENDANT: Yes, ma'am.
THE COURT: You've had— you've been arrested on 31 separate occasions, which is about one a year since you were born.[2]
THE DEFENDANT: Yes, ma'am.
THE COURT: And you didn't even, I assume, get drawn into criminal behavior till you were a teenager. So you're picking them up twice a year about, right?

Page 429

THE DEFENDANT: (Witness nodded head.)
THE COURT: So there's some disconnect that keeps you from living within the law....
The only thing that society says is conform your behavior to the legal requirements. And you haven't been able to do that. Right?
THE DEFENDANT: Yes, ma'am.
THE COURT: Why isn't this a lesson you've been able to learn for yourself?
THE DEFENDANT: I guess getting caught up in the streets, I guess, and doing the drugs that I was doing.
THE COURT: The presentence report says that marijuana is your drug of choice, an every day pursuit, right?
THE DEFENDANT: Yes, ma'am.
THE COURT: But probably cocaine, too, because you've got a prior conviction for possessing cocaine, right?
THE DEFENDANT: Yes, ma'am.
THE COURT: Where are you getting the money to buy ...

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