While the sentencing court is permitted to examine the whole picture when sentencing a particular defendant, it may not base it sentence on suspicion that the defendant has engaged in some shadowy, nefarious conduct without record support. Yesterday, in United States v. Van, the Sixth Circuit reversed a sentence based on the district court's conjecture that there was “something more going on here than a mere misuse of a phony identification.” The defendant was caught using a false social security number, which the district court suspected indicated that the defendant was engaged in a more wide-ranging criminal enterprise than was apparent from the record. Because of the court's suspicions, Mr. Van received a 9 month sentence when the guideline range was 0-6 months.
The Sixth Circuit reversed, but began by rejecting the defendant's procedural reasonableness argument. Van had not objected to the court's decision to base its sentence on speculation about the his conduct, so the Sixth Circuit held it could not find plain error. The Van Court did, however, find an abuse of discretion concerning the substantive reasonableness of the sentence. The takeaway line from the opinion is "[e]ven if a district court relies on a large number of relevant factors, we must vacate and remand for resentencing if the court considers an impermissible factor in calculating a defendant’s sentence." In Van, the district court's speculation that Mr. Van was up to no good was not based on the record, and was therefore an impermissible factor, rendering the resulting sentence an abuse of discretion.
A similar issue presents when a district court relies on the defendant's arrest record when imposing sentence. Arrests which do not result in convictions may not serve as the basis for an upward departure. U.S.S.G. § 4A1.3(a)(3). But be careful- if you do not object to the facts listed in the PSR concerning the prior arrest, those facts are fair game for the district court. United States v. Mateo, 471 F.3d 1162 (10th Cir. 2006). While a district court that reasons from the existence of prior arrests is considering an impermissible factor, the court can consider any facts to which you did not object in selecting a sentence above the guideline range.