                                   PRECEDENTIAL

  UNITED STATES COURT OF APPEALS
       FOR THE THIRD CIRCUIT
            ___________

                No. 16-1405
                ___________

      UNITED STATES OF AMERICA

                      v.

     ARTHUR MATTHEW FERGUSON,
             a/k/a SIFE


     ARTHUR MATTHEW FERGUSON,
                      Appellant
             __________

On Appeal from the United States District Court
   for the Eastern District of Pennsylvania
       (E.D. Pa. No. 2-00-cr-00705-001)
  District Judge: Honorable Paul S. Diamond
                 ___________

 Submitted Under Third Circuit L.A.R. 34.1(a)
             November 7, 2017

Before: JORDAN, HARDIMAN, and SCIRICA,
             Circuit Judges.
            (Opinion Filed: November 28, 2017)

Leigh M. Skipper, Chief of Federal Defender
Brett G. Sweitzer, Assistant Federal Defender, Chief of
Appeals
Christy Martin, Assistant Federal Defender
Federal Community Defender Office
for the Eastern District of Pennsylvania
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106
        Counsel for Appellant

Louis D. Lappen, Acting United States Attorney
Robert A. Zauzmer, Assistant United States Attorney, Chief
of Appeals
Jeffery W. Whitt, Assistant United States Attorney
Office of United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
       Counsel for Appellee

                       ____________

                OPINION OF THE COURT
                     ____________

HARDIMAN, Circuit Judge.

       After spending seven years in federal prison for
unlawful possession of a firearm, Arthur Ferguson began
serving a three-year term of supervised release. That term of
supervised release was revoked after Ferguson was convicted




                              2
in Pennsylvania state court of sexually assaulting a 10-year-
old girl. The United States District Court for the Eastern
District of Pennsylvania sentenced Ferguson to an additional
24 months’ imprisonment, to run consecutively to his 10 to 20
year state sentence. Ferguson appeals, claiming that the
District Court deprived him of due process when it considered
his “bare prior arrest record” to determine his sentence.

                               I

       On February 7, 2001, Ferguson pleaded guilty in the
District Court to one count of possession of a firearm by a
convicted felon in violation of 18 U.S.C. § 922(g)(1).
Ferguson was sentenced to 84 months’ imprisonment, to be
followed by three years of supervised release.

       Two years into that term of supervision, the United
States Probation Office petitioned the District Court to revoke
Ferguson’s supervised release because he had committed
another crime. The Probation Office informed the District
Court that Ferguson had been convicted and sentenced in the
Delaware County Court of Common Pleas on seven counts of
aggravated indecent assault on a person less than 13 years
old, one count of criminal solicitation of a person less than 13
years old, and eight counts of indecent assault on a person
less than 13 years old. Ferguson was sentenced to a term of
10 to 20 years’ confinement in state custody, to be followed
by seven years’ probation.

       In light of his state court convictions, Ferguson did not
contest in the District Court that he had violated the
conditions of his supervised release. The parties and the
District Court agreed that although Ferguson’s violation
carried a range of 30 to 37 months’ imprisonment under the




                               3
United States Sentencing Guidelines (USSG), the statutory
maximum sentence was 24 months’ imprisonment followed
by three years of supervision. Neither party asked the Court to
impose a sentence less than the 24-month statutory maximum,
but Ferguson requested that the sentence run concurrently
with his state sentence, while the Government sought a
consecutive sentence.

       After hearing the parties’ arguments, the District Court
explained the factors it considered in fashioning Ferguson’s
sentence. One of these factors was Ferguson’s criminal
history, which the Court recounted as follows:

      I have also reviewed the original presentence
      report . . . , and the defendant has a long and
      serious criminal history.

      Adjudicated delinquent for criminal trespass in
      1979 at the age of 13. Simple assault 1980.
      Adjudicated delinquent. Criminal attempted
      rape, indecent assault and indecent exposure in
      1981 at the age of 15. Criminal attempt and
      theft by unlawful taking. Adjudicated
      delinquent at the age of 16 in 1982. Adjudicated
      delinquent in 1983 in State Court for second
      degree burglary in Delaware County. At age 17
      adjudicated or adjudged delinquent. Disorderly
      conduct and hindering prosecution.

      Also, he has adult convictions. In 1985 at the
      age of 19, criminal attempt in Delaware County
      Common Pleas Court. In 1986 at the age of 20,
      robbery and conspiracy, Delaware County
      Common Pleas Court. In 1988 at the age of 21,




                              4
      disorderly conduct also in Delaware County. In
      1989 possession of marijuana for personal use
      at the age of 23. And at the age of 25 in 1991,
      knowing or intentionally possessing a
      controlled substance, manufacture, delivery or
      possession with intent to deliver. Another drug
      conviction in 1995, again in Delaware County
      Common Pleas Court.

      And one, two, three, four, five, arrests for
      burglary, burglary, possession of an instrument
      of crime, criminal conspiracy and homicide. It
      appears that the defendant is incapable of
      abiding by the law.

App. 25–28. The District Court then remanded Ferguson to
the custody of the Bureau of Prisons to be imprisoned for 24
months, running consecutive to his state sentence, with no
period of supervised release to follow. The Court asked
counsel for each party if they had any objections, but neither
did. Ferguson filed this timely appeal.

                              II

      The District Court had jurisdiction under 18 U.S.C.
§§ 3231 and 3583. We have jurisdiction under 18 U.S.C.
§ 3742 and 28 U.S.C. § 1291.

       As Ferguson acknowledges, his failure to preserve his
objection to the District Court’s arrest record reference at
sentencing means we review it only for plain error. Fed. R.
Crim. P. 52(b); see also United States v. Flores-Mejia, 759
F.3d 253, 256 (3d Cir. 2014) (en banc). Under this standard,
Ferguson bears the burden of showing: “(1) error, (2) that is




                              5
plain or obvious, and (3) that affects a defendant’s substantial
rights.” United States v. Goodson, 544 F.3d 529, 539 (3d Cir.
2008) (citing Johnson v. United States, 520 U.S. 461, 467
(1997)). “If all three conditions are met, an appellate court
may then exercise its discretion to notice a forfeited error, but
only if . . . the error seriously affect[s] the fairness, integrity,
or public reputation of judicial proceedings.” Id. (citation
omitted).

                                III

                                 A

       Ferguson relies on our opinions in United States v.
Berry, 553 F.3d 273 (3d Cir. 2009), and United States v.
Mateo-Medina, 845 F.3d 546 (3d Cir. 2017), to argue that the
District Court plainly erred by considering arrests that did not
lead to convictions. In both of those cases, the defendants’
Presentence Investigation Reports listed arrests for charges
that did not result in convictions and did not offer any
evidence regarding the alleged offenses. Ferguson’s
Presentence Investigation Report does the same. He argues
that—like the sentencing courts in Berry and Mateo-
Medina—the District Court deprived him of due process of
law by relying on his arrest record in determining his
sentence.

       In Berry, in addition to considering the relevant factors
under 18 U.S.C. § 3553(a) at sentencing, the district court
explicitly relied on the two defendants’ arrests. It was
necessary to do so, the court stated, because their lack of prior
criminal convictions did not adequately reflect the
“seriousness of their criminal exposure in the past. The fact
that they were charged with crimes and then, the prosecution




                                 6
was dropped because nobody showed up to prosecute or
something like that, means that their criminal history points
were probably understated.” Berry, 553 F.3d at 279. It was
“rather obvious,” the court continued, that “reading between
the lines . . . the reason [defendant Berry] doesn’t have any
actual adult convictions is because of the breakdowns in the
court—in the state court system—and not because of
innocence.” Id. at 277. The sentencing judge’s speculation
was based on an inaccurate reading of the defendants’
Presentence Investigation Reports. Even more importantly,
the court relied on mere arrests to determine the sentences.
And that constituted plain error that required resentencing. Id.
at 281.

        We recognized in Berry that while the Guidelines
permit district courts to consider “[p]rior similar adult
criminal conduct not resulting in a criminal conviction,” id.
(alteration in original) (quoting USSG § 4A1.3(a)(2)(E)), they
also caution that “[a] prior arrest record itself shall not be
considered for purposes of an upward departure.” Id.
(alteration in original) (quoting USSG § 4A1.3(a)(3)). Despite
the absence of an upward departure in Berry, we concluded
that any reliance by the district court on the arrests
themselves amounted to plain error: “unsupported speculation
about a defendant’s background is problematic whether it
results in an upward departure, denial of a downward
departure, or causes the sentencing court to evaluate
the § 3553(a) factors with a jaundiced eye.” Id. (citation
omitted). We explained that under the Due Process Clause,
“[a] defendant cannot be deprived of liberty based upon mere
speculation.” Id. at 284. Accordingly, we held “that a bare
arrest record—without more—does not justify an assumption
that a defendant has committed other crimes[,] and it




                               7
therefore cannot support increasing his/her sentence in the
absence of adequate proof of criminal activity.” Id.1

        We applied the principles articulated in Berry in
Mateo-Medina, where the district court sentenced the
defendant—a citizen of the Dominican Republic who pleaded
guilty to illegal reentry—based in part on its consideration of
arrests that did not lead to convictions. 845 F.3d at 551. As in
Berry, the district court made clear that there was a direct link
between the arrests and the sentence to be imposed:

       I also cannot overlook the defendant’s rather
       extensive . . . interaction with the criminal
       justice system. But there were as I counted, I
       believe seven arrests, two convictions in three
       states since 1988. So, the defendant who was in
       this country initially illegally since at least the
       80s has engaged in conduct which to the
       Court’s view belied and made ring hollow a

       1
         Indeed, it is only reliance on an arrest record bereft of
facts, and thus resulting in unsupported speculation, that
raises due process concerns. We have permitted sentencing
courts to consider arrests if the underlying conduct has been
proven by a preponderance of the evidence. See United States
v. Zabielski, 711 F.3d 381, 391 (3d Cir. 2013) (explaining that
“a bare arrest record—without more—does not justify an
assumption that a defendant has committed other crimes”
(quoting Berry, 553 F.3d at 284), but that a sentencing court
nevertheless “may consider ‘[p]rior similar adult criminal
conduct not resulting in a criminal conviction’” (alteration in
original) (quoting USSG § 4A1.3(a)(2)(E)), “as long as that
conduct has been proven by a preponderance of the evidence”
(citation omitted)).



                                8
       little bit his desire to merely come to America
       to seek a better life.

Id. at 549. Both parties recommended that the defendant be
sentenced to time served, which would have translated to
roughly six months’ imprisonment, but the court sentenced
him to a year and a day. Id. We concluded that the court’s
consideration of Mateo-Medina’s bare arrest record had
tainted its sentencing decision, as forbidden by Berry. Id. at
552.

        We did not arrive at this conclusion mechanically. We
did not, for example, hold that any reference by the district
court to prior arrests not leading to conviction amounted to
plain error. Instead, we carefully examined the court’s
statements in context to discern whether or not it actually
relied on Mateo-Medina’s arrest record when fashioning his
sentence. Id. at 552–54. In doing so, we rejected the
Government’s attempt to distinguish the case from Berry. The
Government argued that the court’s reference to Mateo-
Medina’s bare arrests reflected the court’s “doubt as to [his]
credibility in stating his reasons to return to the United States,
not his criminal nature.” Id. at 552. We found this explanation
implausible, given that Mateo-Medina had only two prior
convictions, one for fraudulently obtaining a passport five
years earlier (the offense for which he was removed) and the
other a 15-year-old conviction for driving under the influence.
It “strain[ed] credulity” to argue, as the Government did, “that
the sentencing court was referring only to these two
convictions as an extensive interaction with the criminal
justice system.” Id. We thus concluded that the district court
had erred in the same way as had the Berry court: it
impermissibly allowed a bare arrest record to influence the
sentencing decision. Id. at 554. When such influence is



                                9
evidenced in the record, a new sentencing is required.
Notwithstanding a district court’s subsequent consideration of
factors appropriate under the Guidelines or § 3553(a), most
likely the court will not have been able to “unring the bell,”
and ipso facto the defendant will have been prejudiced by the
error. Id. In other words, when a district court relies on mere
arrests to determine a sentence, it is likely to engage in the
kind of “unsupported speculation” forbidden in Berry and
Mateo-Medina and thus to commit “plain error that affects
substantial rights.” Fed. R. Crim. P. 52(b).

                                   B

       According to Ferguson, the District Court relied on his
bare arrest record to determine his consecutive sentence of 24
months’ imprisonment. In support of this argument, he cites
the Court’s reference to his arrests in its recitation of his
criminal history, which in turn he asserts factored into the
sentencing decision. The Court’s mention of these arrests,
preceded by its observation that “the defendant has a long and
serious criminal history,” App. 25, suffices, on Ferguson’s
view, to establish that these arrests affected the Court’s
sentencing decision, rendering his sentence unconstitutional.
We disagree.

        The district courts in Mateo-Medina and Berry erred
not because they mentioned prior arrests, but because they
relied on them. Accepting Ferguson’s invitation to infer such
reliance from any reference to bare arrests, without
considering the full context of the reference, would be both
illogical and inconsistent with the deference we owe district
courts’ sentencing decisions, which are by their nature
individualized and context-specific. See, e.g., United States v.
Bungar, 478 F.3d 540, 543 (3d Cir. 2007) (noting that



                              10
appellate courts adopt a “highly deferential” stance toward
district courts’ application of the § 3553(a) factors (citation
omitted)). In order to show plain error, Ferguson must
therefore bridge the gap between reference and reliance. It
does not suffice merely to compare, as Ferguson does, the
District Court’s reference to his arrest record to the remarks
made by the sentencing judges in Mateo-Medina and Berry.
Ferguson correctly observes that, at least in isolation, the
District Court’s reference to his arrest record contains echoes
of the references we found problematic in those cases. But
those references were problematic only insofar as they
indicated actual reliance by the court on the arrests when
determining a sentence.

        In this appeal, we are not persuaded that the District
Court actually relied on Ferguson’s arrests in determining his
sentence. It is true that the Court mentioned the arrests in its
recitation of Ferguson’s “long and serious criminal history.”
App. 25. But that characterization of his criminal history was
accurate regardless of the arrests, as made abundantly clear
by the many convictions and adjudications of delinquency the
Court had noted just seconds before it mentioned Ferguson’s
arrest record. Beginning at the age of 13 in 1979, Ferguson
was adjudicated delinquent on six occasions as a minor and
went on to accumulate six adult convictions, including serious
crimes like robbery and drug trafficking offenses, prior to his
federal conviction for possession of a firearm by a felon and
his state conviction for sexual assault, which triggered the
supervised release violation in this case. After reciting this
criminal history, which by any definition would qualify as
“long and serious” on its own, the District Court mentioned,
without emphasis or reliance, Ferguson’s five prior arrests for




                              11
burglary, possession of an instrument of crime, criminal
conspiracy, and homicide.

       In contrast to the sentencing transcript in this appeal,
arrests not leading to convictions were central to the
sentencing decisions we vacated in Berry and Mateo-Medina.
The district court in Berry, faced with two defendants with no
adult convictions, used the fact of their arrests to “read[]
between the lines.” 553 F.3d at 277. Based on the arrests
alone, it found that their “criminal history points” probably
understated their propensity to commit crimes. Id. at 279.
And had those arrests not been deemed evidence of
criminality, the court’s sentencing decision might well have
turned out differently. Similarly, in Mateo-Medina it was
evident that the arrests influenced the court’s sentencing
calculus because they were essential to its finding that the
defendant had a “rather extensive . . . interaction with the
criminal justice system,” 845 F.3d at 549.

        Ferguson is right to note that—despite the tradition of
deference to sentencing courts’ ability to examine all relevant
information—the “rule of Berry and Mateo-Medina exists for
good reason.” Ferguson Br. 9. But fidelity to that rule does
not compel a reflexive inference that the mere recognition of
a defendant’s arrest record tainted his sentencing hearing.
Unable to point to any evidence beyond the District Court’s
mere mention of his arrest record, Ferguson has not shown
error, much less plain error.

       Our conclusion that there was no error in this case is
not the result of a requirement that “a record . . . be explicit in
showing that a defendant’s bare arrest record contributed to
the sentence,” as Ferguson characterizes the Government’s
position. Reply Br. 1–2. But just as such reliance need not be



                                12
made explicit in order to constitute error, the inverse rule
Ferguson appears to advocate—wherein any reference to
prior arrests not leading to conviction is plain error, no matter
how insignificant in context—is equally unwarranted. As we
have explained, whether a district court has run afoul of the
principles we articulated in Berry and Mateo-Medina is a
question that cannot be divorced from the facts and
circumstances of each sentencing hearing.

                               IV

       For the reasons stated, the District Court did not
plainly err when it mentioned Ferguson’s prior arrest record.
Accordingly, we will affirm its judgment of sentence.




                               13
