In the

United States Court of Appeals

For the Seventh Circuit ____________________ 

No. 20-2981 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v.

NATHAN MANSFIELD, 

Defendant-Appellant. 

____________________ 

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. 

____________________ 

ARGUED NOVEMBER 3, 2021 — DECIDED DECEMBER 28, 2021 

____________________ 

Before KANNE, BRENNAN, and KIRSCH, Circuit Judges. 

BRENNAN, Circuit Judge. Nathan Mansfield was convicted 

of possession with intent to distribute methamphetamine and 

sentenced to 188 months in prison. He now argues the district 

court erred by considering his arrest history during 

sentencing. But Mansfield waived this challenge when his 

counsel did not object to the district court’s consideration of 

the presentence investigation report or its contents. Even if 

this point was not waived, a substantial history of arrests, 
2 No. 20-2981 

especially if they are similar to the offense of conviction, can 

be a reliable factor to consider at sentencing. We therefore 

conclude the district court did not err when it reviewed 

Mansfield’s arrest history.

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 21 

U.S.C. § 841(a)(1) and (b)(1)(A) and 18 U.S.C. § 2. 

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, 

1 An anticipatory search, like the one executed in this case, is “a warrant based upon an affidavit showing probable cause that at some future 

time (but not presently) certain evidence of crime will be located at a specified place.” United States v. Grubbs, 547 U.S. 90, 94 (2006) (quoting 2 

WAYNE R. LAFAVE, SEARCH AND SEIZURE § 3.7(c), at 398 (4th ed. 2004)); 

United States v. Whited, 539 F.3d 693, 697 (7th Cir. 2008) (same).
No. 20-2981 3

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, Mansfield filed a Notice of Request for Departure Due to Role Reduction at Sentencing. This notice 

stated that Mansfield would request “the court depart downward and adjust his base level commensurate to his minimal 

role in the criminal activity that led to his arrest.” The notice 

did not challenge the accuracy of the PSR or the inclusion of 

Mansfield’s arrest history. Several weeks later, in advance of 

his sentencing hearing, Mansfield filed a sentencing memorandum. Once again, he did not challenge the accuracy of the 

report or the inclusion or accuracy of his arrest history. Rather, the sentencing memorandum focused on Mansfield’s

health, role in the crime, lack of dangerousness, and character. 

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 

2 “[A] plea made by the defendant without the benefit of a plea agreement entered into with the Government.” United States v. Booth, 432 F.3d 

542, 543 n.1 (3d Cir. 2005) (citation omitted).
4 No. 20-2981 

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 18 U.S.C. 

§ 3553(a) factors. It highlighted considerations related to the

§ 3553(a) factors, such as the presence of two young girls at 

the drug bust, the current drug epidemic, past leniency 

during sentencing, evidence of Mansfield’s desire to improve, 

and the potential effects of COVID-19 on Mansfield’s health. 

In this discussion, the court made only a brief, two-sentence 

reference to Mansfield’s arrest history:

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 
No. 20-2981 5

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 [§] 3553(a) as to the length of imprisonment 

or as to the length and/or conditions of supervised release.” 

Once again, Mansfield’s counsel stated she had none. 

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. 

Jeffrey Esposito was convicted of multiple counts of 

sexually exploiting a child and possessing child pornography. 

Id. at 485. At his sentencing hearing, the district court 

“pronounced Esposito’s sentences, count by count, imposing 

six 30-year sentences to be served consecutive to each other, 

followed by fifteen 20-year sentences to be served concurrent 

with each other but consecutive to the 30-year sentences.” Id.

at 486. In total, Esposito was sentenced to 200 years in prison. 

Id. Following this pronouncement, the district court asked 

Esposito if he had an objection to the proposed sentence or a 

“request [for] any further elaboration of [the court’s] reasons 

under Section 3553(a) as to the length of imprisonment or as 

to the length and/or conditions of supervised release.” Id. at 

486–87. Esposito “did not object” to the court’s sentencing 

method but sought and received “clarification of the 
6 No. 20-2981 

consecutive-versus-concurrent aspect of the sentences and 

how the 200 years was calculated.” Id. at 486. 

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 
No. 20-2981 7

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. 

denied, 140 S. Ct. 504 (2019).3 When a defendant waives an 

argument—“for example, when he states on the record that 

he has no objection to the pre-sentence report—he waives the 

right to appeal.” United States v. Robinson, 964 F.3d 632, 639–

40 (7th Cir. 2020) (citing United States v. Staples, 202 F.3d 992, 

995 (7th Cir. 2000) (“Waiver extinguishes the error and 

precludes appellate review.”)). Forfeiture “comes about 

through neglect.” Staples, 202 F.3d at 995. We review a 

forfeited argument for “plain error only.” Robinson, 964 F.3d 

at 640 (citation omitted). 

3 Before issuing its decision, the panel in Flores “invoked Circuit Rule 

40(e) and circulated the opinion to all judges in active service, and no 

judge voted to hear the case en banc.” United States v. Withers, 960 F.3d 

922, 929 n.7 (7th Cir. 2020) (citing Flores, 929 F.3d at 450 n.1).
8 No. 20-2981 

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 
No. 20-2981 9

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 Reduction at Sentencing, as well as a sentencing memorandum. Neither of these 

filings challenged the accuracy of the presentence investigation report or its inclusion of his arrest history. 

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 
10 No. 20-2981 

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 FED. R.

CRIM. P. 52(b); Robinson, 964 F.3d at 640. Under this standard, 

Mansfield must “show: (1) an error; (2) that is plain; (3) that 

affected his substantial rights, meaning there is a reasonable 

probability that the error changed the outcome of the trial; 

and (4) that ‘had a serious effect on the fairness, integrity or 

4 Even when an issue may have been waived, in some decisions we 

have considered forfeited arguments and reviewed for plain error. See, 

e.g., United States v. Freed, 921 F.3d 716, 720 (7th Cir. 2019) (reviewing defendant’s objection to jury instructions for plain error after his failure to 

object at jury instruction conference); United States v. Groce, 891 F.3d 260, 

269 (7th Cir. 2018) (same); Anderson, 604 F.3d at 1002 (reviewing challenge 

to sentence for plain error after defendant’s counsel accepted PSR).
No. 20-2981 11

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 consider a defendant’s arrest 

history during criminal sentencing. 

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 18 

U.S.C. § 3553(a) states in relevant part: 

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 18 U.S.C. § 3661 (“No limitation shall be placed on the 

information concerning the background, character, and 
12 No. 20-2981 

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.”). Thus, § 3553(a) requires 

that courts consider “the history and characteristics of the defendant” before sentencing. This factor—taken with the other

§ 3553(a) factors—helps a district court determine “whether 

the sentence is unreasonable.” United States v. Booker, 543 U.S. 

220, 261 (2005). 

The U.S. Sentencing Guidelines provide insight into the 

proper use of a defendant’s arrest history. The oncemandatory 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 § 3553(a) to give 

non-guideline sentences for reasons specific to the defendant 

or based on policy disagreements with the Guidelines.” 

Vasquez-Abarca, 946 F.3d at 994 (citations omitted). In fact, a 

sentencing judge will “actually err” if he or she “presume[s] 

that a guideline sentence will be reasonable.” Id. (citing Rita v. 

United States, 551 U.S. 338, 351 (2007); Gall, 552 U.S. at 50). But 

at sentencing, the judge must still “calculate the guideline 

range correctly, and failure to do so will be a ‘plain error’ that 

will often need to be corrected on appeal even if no objection 

was made in the district court.” Id. (citations omitted). 

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 
No. 20-2981 13

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.

U.S.S.G. § 4A1.3(a). So, the Guidelines support reliance on 

similar adult criminal conduct but prohibit considering a 

“prior arrest record itself” for purposes of an upward departure. Id. § 4A1.3(a)(3). Importantly, though, this “prohibition” 

is a nonbinding policy statement. District courts may consider 

the Guidelines while conducting the § 3553(a) analysis, but 

their “failure to do so is not grounds for reversal.” United 

States v. Drain, 740 F.3d 426, 431–32 (7th Cir. 2014). 

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 18 U.S.C. 

§ 3661). This discretion is confined by the Fifth Amendment’s

Due Process Clause, which requires that the “information 

used for sentencing be accurate.” Id. (citing United States v. 

Tucker, 404 U.S. 443, 447 (1972)). Therefore, a judge “may consider information only if it has ‘sufficient indicia of reliability 

to support its probable accuracy.’” Id. (quoting United States 

v. Hankton, 432 F.3d 779, 790 (7th Cir. 2005)). A court “may not 

rely” on arrest history “itself in deciding on a sentence or in 

imposing an upward departure,” but it “may still consider the 
14 No. 20-2981 

underlying conduct detailed in arrest records where there is 

a sufficient factual basis for the court to conclude that the conduct actually occurred.” Id. (citations omitted).

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 
No. 20-2981 15

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. 
16 No. 20-2981 

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” § 3553(a). Drain, 740 F.3d at 432. At 

least 13 of Mansfield’s 26 arrests were related to narcotics, 

firearms, battery, intimidation, resisting law enforcement, or

escape charges. This number of arrests, and their similarity to 

the offense of conviction, is consistent with our case law. See, 

e.g., id. at 428, 431, 433 (upholding an above-guidelines 

sentence based on 31 prior arrests); Lopez-Hernandez, 687 F.3d 

at 901–04 (upholding a sentence at the top of the guideline

range that was based, in part, on the defendant’s 41 prior 

arrests); Guajardo-Martinez, 635 F.3d at 1058 (upholding the 

district court’s below-guidelines sentence and determining 

the defendant was not prejudiced, even though two of the 

three arrests listed in the presentence investigation report 

were unreliable); United States v. Walker, 98 F.3d 944, 947–48 

(7th Cir. 1996) (upholding, pre-Booker, an upward departure

because the defendant was not prejudiced by the district 

court’s improper reliance on 23 prior arrests). 

Further, reviewing courts should “expect more of an explanation for a non-guideline sentence than for a withinguideline 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 
No. 20-2981 17

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 agree with the holding in Drain. 

Id. (citing Berry, 553 F.3d at 284); see also United States v. Johnson, 648 F.3d 273, 278 (5th Cir. 2011) (citing with approval the 

passage from Berry). 

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, 

5 In Zapete-Garcia, the First Circuit acknowledged that “a series of past 

arrests might legitimately suggest a pattern of unlawful behavior even in 

the absence of convictions.” 447 F.3d at 61.
18 No. 20-2981 

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.