In United States v. Berry, No. 07-1251 (Jan. 6, 2009), Defendants pleaded guilty to robbery and using a firearm in furtherance of crime of violence. At sentencing, the district court speculated that the only reason that defendants' prior arrests had not resulted in prior convictions was because the criminal justice system must have broken down, and the arrests were therefore evidence of prior criminal activity which could support an increase in sentence.
The Third Circuit reversed, holding that the bare fact of prior arrests cannot be used in any way to increase a defendant's sentence and the district court’s reliance on those arrests violated defendants' due process right to be sentenced based on reliable information. While the Guidelines already say that bare arrest records are not to be used to justify an upward departure, Berry makes clear they cannot be used at all (upward variance, denial of downward departure/variance, in weighing the 3553(a) factors, etc).
Sentencing courts may still use prior conduct, including any conduct described in the PSR relating to prior arrests. Here, the PSR contained no such factual information, and the district court simply speculated that the defendant's prior cases were probably dropped for reasons unrelated to guilt/innocence. The Court adds at the end of the decision that “maybe” an extremely long (but still bare) arrest record -- on the magnitude of dozens of arrests -- could be used to increase a sentence; but the court discourages even that.