Published on:

Third Circuit: District court’s reliance on bare arrests, not resulting in convictions, was plain error at sentencing

United States v. Mateo-Medina, — F.3d —, 2017 WL 76944, 2017 U.S. App. LEXIS 342, No. 15-2862 (3d Cir. Jan. 9, 2017) (plain error for district court to rely upon, at sentencing, arrests that did not result in conviction; racial disparities in arrest rates)

Maximo Mateo-Medina appealed his sentence of imprisonment for twelve months and one day for illegal reentry in violation of 8 U.S.C. §§ 1326(a) & (b)(1). The Third Circuit held that the district court erred in considering, at sentencing, arrests that had not resulted in convictions. The error was plain under controlling Third Circuit precedent: United States v. Berry, 553 F.3d 273, 281-84 (3d Cir. 2009). Notably, the opinion relies upon implicit racial bias and racial disparities in arrest rates.

Mr. Mateo-Medina pled guilty to the reentry offense. The PSR calculated his criminal history as category II based on a 2000 conviction for driving under the influence and a 2012 conviction for fraudulently applying for a passport. The PSR also listed six other arrests that had not resulted in convictions; the PSR did not describe underlying conduct.

The Guidelines range was 8-14 months’ imprisonment. “At the sentencing hearing, both the prosecutor and the defense argued for a sentence of time served, which would have been the equivalent of roughly six months, or the lower end of the Guidelines range.” The district court disagreed, and imposed a significantly longer sentence. In explaining the sentence, the district court commented on Mr. Mateo-Medina’s arrest record:

I also cannot overlook the defendant’s rather extensive . . . interaction with the criminal justice system. But there were as I counted, I believe seven [sic] arrests, two convictions in three states since 1988. So, the defendant . . . has engaged in conduct which to the Court’s view belied and made ring hollow a little bit his desire to merely come to America to seek a better life.

The Third Circuit had held in United States v. Berry that a district court cannot consider bare arrest records at sentencing, because “[a] defendant cannot be deprived of liberty based on mere speculation.” Berry, 553 F.3d at 284.

In that case, the court explained, “[R]eliance on arrest records may also exacerbate sentencing disparities arising from economic, social and/or racial factors. For example, officers in affluent neighborhoods may be very reluctant to arrest someone for behavior that would readily cause an officer in the proverbial ‘high-crime’ neighborhood to make an arrest. A record of a prior arrest may, therefore, be as suggestive of a defendant’s demographics as his/her potential for recidivism or his/her past criminality.” Berry, 553 F.3d at 285.

Mateo-Medina expands upon that reasoning, describing the “substantial research and commentary” published since Berry describing socioeconomic disparities in arrest rates. The opinion relies upon a 2013 Sentencing Project report[1] “indicating that police are more likely to stop, and arrest, people of color due to implicit bias.” The opinion also relies upon an empirical study of racial disparities in drug arrests among African-American, Hispanic and white subjects.[2] The study found that despite “roughly the same” rates of drug use, by age 27 African Americans had a 235% greater chance of a drug arrest.

The error affected substantial rights. Although the arrests were not the only factor relied upon by the district court at sentencing, “We think it highly unlikely that the court was thereafter able to unring the bell when considering the guidelines or the factors contained in Section 3553(a).”

Congratulations to Assistant Federal Defenders Tracy Frederick (now practicing in the District of Connecticut, previously practicing in the Eastern District of Pennsylvania) and Brett Sweitzer (Eastern District of Pennsylvania) on this win.

Maria Pulzetti is an Assistant Federal Defender in the Eastern District of Pennsylvania.

[1] The Sentencing Project, Report of The Sentencing Project to the United Nations Human Rights Committee Regarding Racial Disparities in the United States Criminal Justice System (August 2013), available at

[2] Ojmarrh Mitchell & Michael S. Caudy, Examining Racial Disparities in Drug Arrests, Justice Quarterly (Jan. 2013), available at

Contact Information