                                      PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
              ______________

                    No. 17-1095
                  _______________

         UNITED STATES OF AMERICA

                          v.

               TYRONE MITCHELL,
                   a/k/a Fox

                  Tyrone Mitchell,
                           Appellant
                  ______________

     Appeal from the United States District Court
       for the Eastern District of Pennsylvania
            (D.C. No. 2-12-cr-00172-001)
        District Judge: Hon. Paul S. Diamond
                   ______________

               Argued March 14, 2019
                  ______________

Before: McKEE, ROTH, and FUENTES, Circuit Judges.

              (Filed: December 5, 2019)
                  ______________
Lisa Van Hoeck [Argued]
Office of the Federal Public Defender
22 South Clinton Avenue
Station Plaza #4, 4th Floor
Trenton, NJ 08609

      Counsel for Appellant

Robert A. Zauzmer [Argued]
Randall Hsia
Office of the United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106

      Counsel for Appellee

                      ______________

                OPINION OF THE COURT
                    ______________

FUENTES, Circuit Judge.

       A jury found Tyrone Mitchell guilty of seventeen drug
distribution and firearms offenses. Mitchell appeals his
judgment of conviction and sentence of 1,020 months’
imprisonment, raising eight arguments nearly all of which are
unavailing. We do, however, agree with Mitchell as to one
sentencing-related argument—that the District Court plainly
erred by relying on Mitchell’s bare arrest record to determine
his sentence. We therefore affirm Mitchell’s judgment of




                              2
conviction, vacate the judgment of sentence, and remand for
resentencing.
                             I.

                            A.

       In May and July 2010, a confidential informant
working with agents of the Pennsylvania Attorney General’s
Office, Bureau of Narcotics Investigation, made three
controlled purchases of phencyclidine (“PCP”) from Mitchell.
Before making each purchase, the informant would arrange to
meet Mitchell at a specific location in Philadelphia, and
agents would conduct surveillance of both the meeting
location and Mitchell. During this surveillance, agents
observed Mitchell or one of his associates traveling between
the meeting location and properties located at 3153 North
Carlisle Street (“Carlisle Street”) and 3248 Goodman Street
(“Goodman Street”).1 They also observed Mitchell using keys
to enter and exit those properties. Based on the controlled
purchases and surveillance, agents obtained and executed
search warrants for the properties at Carlisle Street and
Goodman Street.




1
  The Carlisle Street property was owned by an individual
named Geraline Ashmore, and the Goodman Street property
was owned by TSM Property Group, LLC, a company which
had no reported income between 2009 and 2011 and was
owned by Mitchell’s wife.




                             3
    i. Search of Carlisle Street Property

        Before executing the warrant at the Carlisle Street
property, agents saw Mitchell leave the property and enter a
blue Dodge minivan. Agents blocked the minivan and then
placed Mitchell under arrest.2 During a search incident to
arrest, agents found keys to the Carlisle Street property, keys
to the Goodman Street property, and $2,947 in cash on
Mitchell’s person.

       Inside the Carlisle Street property, agents recovered,
among other things, a loaded .357 caliber handgun hidden in
a lazy boy recliner, a box of .357 caliber bullets, a photograph
of Mitchell and an unidentified male, $350 in cash, 95 grams
of crack cocaine, 6.9 grams of marijuana, and drug
paraphernalia. At trial, Alfred Jenkins testified that he
purchased powder cocaine from Mitchell on a weekly basis
between 2009 and May 2011 at different locations including
the Carlisle Street property. Jenkins further testified that on
occasion, Mitchell would instruct him to go to Carlisle Street
and purchase cocaine there from Warren Lawson, an
individual who agents found sitting on the lazy boy recliner
when they executed the search warrant.3

2
  Mitchell was initially charged with local offenses in the
Philadelphia Court of Common Pleas. He was in local
custody from July 21, 2010 to October 25, 2010, the date on
which he made bail. Mitchell was subsequently arrested on
January 17, 2013 and charged with the federal offenses
underlying this case. The local charges were eventually
dismissed.
3
  Lawson did not testify at trial.




                               4
    ii. Search of Goodman Street Property

       On that same day, agents executed a search warrant at
       the Goodman Street property, another property from
       which Jenkins had purchased cocaine from Mitchell.
       Once inside, the agents found, among other things, a
       .44 caliber loaded handgun beneath a pile of clothes
       and blankets, a photograph of Mitchell, a billing
       statement addressed to Mitchell at that address, keys
       with a tag labelled 2447 Firth Street, drug
       paraphernalia, and six small glass jars containing about
       131 grams of PCP.

                              B.

       Over a year later, based on information learned from
Jenkins, agents conducted surveillance of 2447 West Firth
Street (“Firth Street”), another property where Jenkins had
purchased cocaine from Mitchell.4 On October 11, 2011,
agents saw an individual named Dante Black enter and exit
the Firth Street property with the use of a key. Two days later,
agents saw Black allow an individual later identified as Curtis
Williams inside the house. Williams left the house about
fifteen minutes later. Agents subsequently stopped Williams
and confiscated about five grams of cocaine from him. They
also stopped Black after he left the house and detained him
while they obtained a search warrant. Agents searched Black
and recovered a cell phone, keys to the Firth Street property,
and money.


4
  This investigation was a joint investigation with the FBI. Id.
at 963.




                               5
   i. Search of Firth Street Property

       After obtaining the search warrant, agents entered the
Firth Street property, which was owned by TSM Property
Group, the company owned by Mitchell’s wife. In the
property, agents found, among other things, a loaded .40
caliber semi-automatic Glock handgun in a couch cushion, a
spare magazine for the Glock pistol, numerous photographs
of Mitchell, cocaine, crack, oxycodone tablets, marijuana
drug paraphernalia, a notepad containing drug tally work with
Mitchell’s alias on the back, and cash.

        At trial, Black testified that he had been living in the
Firth Street house with Mitchell since late August, early
September 2011. Black stayed in the second-floor back room
and Mitchell stayed in the second-floor front room—the room
where agents had found the spare magazine for the gun and
photographs of Mitchell including one which had a note on
the back addressed to one of Mitchell’s aliases. Black recalled
that he and Mitchell stored drugs in the house including
cocaine, crack cocaine, marijuana, and Percocet pills, and
they would each sell drugs on a daily basis. According to
Black, prior to moving in with Mitchell, he would purchase
cocaine powder and crack cocaine from Mitchell and would
resell them to his customers. Black acknowledged that (1) he
continued to do so when he was living in the Firth Street
house, and (2) on Mitchell’s instructions, he also sold drugs
to Mitchell’s customers when Mitchell was away from the
house.

      Black testified that there was a Glock .40 pistol in a
couch in the living room—the same gun that police found




                               6
during the execution of the search warrant.5 According to
Black, Mitchell placed the gun in the couch. Black also stated
that it was Mitchell’s idea to get a gun for the purpose of
protecting themselves and the drugs in the house, and
Mitchell reimbursed him for the cost of the gun.

                              II.

       In December 2013, Mitchell was indicted on seventeen
counts: one count of conspiracy to distribute 500 grams or
more of cocaine6 (Count 1); four counts of distribution of
cocaine7 (Counts 2-5); three counts of maintaining a house for
drug distribution8 (Counts 6, 10, and 14); one count of
possession of 28 grams or more of cocaine base (“crack”)
with intent to distribute, and aiding and abetting such
possession9 (Count 7); two counts of possession of a firearm
in furtherance of a drug trafficking crime, and aiding and
abetting such possession10 (Counts 8 and 16); three counts of
possession of a firearm by a convicted felon11 (Counts 9, 13,

5
   Black’s testimony was corroborated by Jenkins’ testimony.
Jenkins similarly testified that he had seen a firearm in the
Firth Street property.
6
  21 U.S.C. § 846.
7
  Id. § 841(a)(1).
8
  Id. § 856(a)(2). Count 6 relates to the Firth Street property,
Count 10 relates to the Carlisle Street property, and Count 14
relates to the Goodman Street property.
9
  Id. § 841(a)(1); 18 U.S.C. § 2.
10
    18 U.S.C. §§ 2, 924(c)(1). Count 8 relates to the firearm
found in the Carlisle Street property and Count 16 relates to
the firearm found in the Firth Street property.
11
   Id. § 922(g)(1).




                               7
and 17); one count of possession of 100 grams or more of
PCP with intent to distribute12 (Count 11); one count of
possession of a firearm in furtherance of a drug trafficking
crime13 (Count 12); and one count of possession of at least 28
grams of crack and 500 grams of cocaine with intent to
distribute, and aiding and abetting such possession14 (Count
15).

       After a seven-day trial in October 2015, a jury found
Mitchell guilty of all seventeen counts. Mitchell then filed a
motion for a judgment of acquittal, or in the alternative, for a
new trial, which the District Court denied. The District Court
ultimately sentenced Mitchell to 1,020 months’ (85 years’)
imprisonment followed by 8 years of supervised release.15

12
   21 U.S.C. §§ 841(a)(1), (b)(1)(B).
13
    18 U.S.C. § 924(c)(1). Count 12 relates to the firearm
found in the Goodman Street property.
14
   21 U.S.C. §§ 841(a)(1), (b)(1)(B), (b)(1)(C), (b)(1)(D); 18
U.S.C. § 2.
15
   Mitchell was sentenced to 360 months’ imprisonment on
Counts 1, 2, 3, 4, 5, 7, 11, and 15, 240 months’ imprisonment
on Counts 6, 10, and 14, and 120 months’ imprisonment on
Counts 9, 13, and 17, to be followed by a consecutive 60
months’ imprisonment on Count 8, a consecutive 300
months’ imprisonment on Count 12, and a consecutive 300
months’ imprisonment on Count 16.

        Pursuant to 18 U.S.C. § 924(c)(1)(A)(i), for the first
count of possession of a firearm in furtherance of a drug
trafficking crime (Count 8), the District Court imposed a
mandatory minimum sentence of 5 years. For the second and
third firearm counts (Counts 12 and 16), the Court imposed




                               8
Defendant now appeals the judgment of conviction and
sentence.
                        III.16

       In this appeal, Mitchell challenges both his conviction
and sentence of 1,020 months’ imprisonment. He presents
four arguments as to why his conviction should be vacated,
and four arguments as to why his sentence should be vacated.

        Regarding his conviction, Mitchell maintains that: (1)
the District Court violated his Sixth Amendment right to a
fair trial before an impartial jury by failing to investigate
possible juror bias; (2) the District Court’s admission of
certain statements violated the rule against hearsay and his
rights under the Confrontation Clause; (3) the District Court
plainly erred by failing to instruct the jury that aiding and
abetting the possession of a firearm in furtherance of a drug
trafficking crime requires that the accomplice have advance
knowledge that the principal would possess a gun, as required
by Rosemond v. United States;17 and (4) the Government
presented insufficient evidence that he aided and abetted
Lawson’s possession of a loaded .357 caliber firearm in
furtherance of distribution of crack at Carlisle Street, or
constructively possessed the firearm. We have carefully
considered Mitchell’s arguments regarding his conviction and



two 25-year sentences as required by 18 U.S.C. §
924(c)(1)(C).
16
   The District Court had jurisdiction under 18 U.S.C. § 3231.
We have jurisdiction under 18 U.S.C. § 3742(a) and 28
U.S.C. § 1291.
17
   134 S. Ct. 1240 (2014).




                              9
find them to be without merit. Accordingly, we affirm
Mitchell’s judgment of conviction.

       As to his sentence, Mitchell argues that: (1) the
District Court plainly erred by relying on his bare arrest
record at sentencing; (2) the District Court erred in
concluding that he qualified as a career offender under the
Sentencing Guidelines; (3) we should remand for
resentencing in light of the Supreme Court’s 2017 decision in
Dean v. United States;18 and (4) his 55-year mandatory
consecutive sentence violates the Eighth Amendment’s
prohibition on cruel and unusual punishment. We have
examined each of Mitchell’s arguments and find nearly all of
them to be meritless. However, for the reasons set forth
below, we agree with Mitchell that the District Court plainly
erred by relying on Mitchell’s bare arrest record to determine
his sentence. We will therefore vacate and remand for
resentencing.19

      Under the Due Process Clause, “[a] defendant cannot
be deprived of liberty based upon mere speculation.”20
Accordingly, in determining a sentence, although a court can
mention a defendant’s record of prior arrests that did not lead
to conviction, it cannot rely on such a record.21 As we

18
   137 S. Ct. 1170 (2017).
19
    We do not take a position on the merits of Mitchell’s
argument that the District Court erred in concluding that he
qualified as a career offender under the Sentencing
Guidelines. Mitchell can renew this contention before the
District Court on remand.
20
   United States v. Berry, 553 F.3d 273, 284 (3d Cir. 2009).
21
   See id.




                              10
recognized in United States v. Berry, “a bare arrest record—
without more—does not justify an assumption that a
defendant has committed other crimes.”22

        Here, the Presentence Investigation Report (“PSR”)
calculated Mitchell’s criminal history category as VI.
According to the PSR, 50-year-old Mitchell had 7 juvenile
adjudications and 6 prior adult convictions, including 2
Pennsylvania convictions for robbery and 1 federal conviction
for conspiracy to distribute cocaine. The PSR also listed
Mitchell’s arrests that did not lead to conviction. From the
age of 18 to 46, Mitchell had a total of 18 arrests. The PSR
listed 1 arrest related to “Other Criminal Conduct,”23 2 arrests
related to “Pending Charges,”24 and 15 “Other Arrests.”25
Notably, the PSR did not contain any information about the
underlying facts or circumstances of 17 of those 18 arrests.26

      At sentencing, defense counsel did not discuss
Mitchell’s criminal history. He only noted that the Guidelines




22
   Id. See United States v. Ferguson, 876 F.3d 512, 515 (3d
Cir. 2017) (recognizing that it is a court’s “reliance on an
arrest record bereft of facts, and thus resulting in unsupported
speculation, that raises due process concerns”).
23
   PSR ¶ 50.
24
   Id. at ¶ 51.
25
   Id. at ¶ 52.
26
   The PSR only provided information for a 1984 arrest for
possession with intent to distribute a controlled substance and
possession of a controlled substance.




                              11
numbers were “staggering.”27 Thereafter, the prosecutor
mentioned Mitchell’s criminal history and stated:

      [s]ince the age of 18, since 1984, [Mitchell] has
      not gone more than three years without some
      sort of criminal contact. He has two prior felony
      drug convictions. He has a theft conviction and
      two robbery convictions. . . .

      Furthermore, he was on probation for a robbery
      conviction when he committed these current
      crimes.

      [Mitchell] has demonstrated by his conduct,
      both previously and in this case, that he has zero
      respect for the law.28

While the prosecutor was speaking, the District Court
interrupted him, emphasizing that it “count[ed] seven
adjudications, six adult convictions, and eighteen other
arrests.”29 The prosecutor responded: “I think that’s accurate,
Your Honor.”30

       Thereafter, in calculating Mitchell’s sentence, the
District Court relied in part on Mitchell’s record of arrests

27
    App. 1409. The resulting Guidelines range was 360
months’ to life imprisonment. However, given Mitchell’s
three § 924(c) convictions, the effective Guidelines range was
1,020 months’ to life imprisonment.
28
   Id. at 1411-12.
29
   Id. at 1411.
30
   Id. at 1412.




                              12
that did not lead to conviction. Specifically, after (1)
describing Mitchell’s juvenile adjudications and adult
convictions, and (2) enumerating each of Mitchell’s 18 arrests
without mentioning the details of disposition, the Court
stated, in relevant part:

      [t]his is as long and serious of [a] criminal
      record as I’ve seen in twelve and a half years
      on the bench. I’m not sure what [Mitchell] was
      referring to when he talked about the crimes
      committed against him,31 but I certainly know
      the crimes he is convicted of committing and
      the crimes he was adjudicated delinquent for
      committing, as well as the crimes he was
      arrested for.

      I consider the need for the sentence imposed to
      reflect the seriousness of the offense, to
      promote respect for the law, to provide just
      punishment or for adequate deterrence [of]
      criminal conduct, to promote and to protect the
      public from further crimes [Mitchell] might
      commit.

      It is perfectly apparent that [Mitchell] has
      absolutely no respect for the law at all. And if

31
   The District Court was presumably referring to Mitchell’s
allocution during which he said: “I never intended to present
myself as an innocent in the world[,] for the truth is, I am
guilty of some crimes against the society from which I come,
just as true is that the society from which I come is guilty of
some crimes against me.” Id. at 1410.




                              13
       he remains at liberty, his criminal record will
       simply go on.

       I have considered the need to provide [Mitchell]
       with educational, vocational training and
       medical care. . . . From his statement, his
       allocution, it is perfectly clear that [Mitchell] is
       . . . a very bright individual. It is a pity that he
       did not turn his intelligence to legitimate efforts,
       and instead, appears to have turned him
       exclusively to breaking the law.32

        The District Court then referenced defense counsel’s
sentencing memorandum and comments at sentencing.
Speaking directly to defense counsel, the Court stated, in
relevant part: “[y]ou have indicated that the . . . guideline
numbers are staggering and I agree they are, but so is your
client’s criminal record.”33 Immediately following that
statement, the Court sentenced Mitchell to a total term of
1,020 months’ imprisonment followed by 8 years of
supervised release. In the Court’s Statement of Reasons,
“extensive criminal history” is the only justification given for
the sentence.34

       On appeal, Mitchell correctly points out “[t]he Court
drew no distinction between adjudications, adult convictions,
and arrests in making the claim that Mitchell’s record was ‘as
long as serious’ as the court had seen in ‘twelve and a half


32
   Id. at 1416-17 (emphasis added).
33
   Id. at 1417-18.
34
   Statement of Reasons at 2.




                               14
years on the bench.’”35 Likewise, in its Statement of Reasons,
in stating that Mitchell’s “extensive criminal history” justified
his sentence, the Court did not distinguish between
adjudications, adult convictions, and adult arrests.36
        Contrary to the Government’s assertions, Mitchell did
not just demonstrate that the District Court “noticed that he
had a number of arrests that did not result in convictions.”37
To the contrary, Mitchell has “bridge[d] the gap between
reference and reliance,” and has thus shown plain error.38
Looking at the record below in its entirety, we conclude that
the District Court improperly relied on Mitchell’s bare arrest
record in determining his sentence. For example, the Court
interrupted the prosecutor to highlight Mitchell’s arrests and
later recited all 18 of Mitchell’s arrests. The Court also
explicitly referred to Mitchell’s arrests when describing his
“long and serious”39 criminal record and identified Mitchell’s
“extensive criminal history”40 as the sole justification for his
sentence. Resentencing is therefore required.41

35
   Def. Br. 53 (quoting App. 1416).
36
   Statement of Reasons at 2.
37
   Gov’t. Br. 69.
38
   Ferguson, 876 F.3d at 517. See United States v. Mateo-
Medina, 845 F.3d 546, 550 (3d Cir. 2017) (footnote omitted)
(stating that “our precedent clearly demonstrates that a district
court’s consideration, even in part, of a bare arrest record is
plain error”).
39
   App. 1416.
40
   Statement of Reasons at 2.
41
   We note that although Mitchell was sentenced at the lowest
end of the Guidelines range on the non-§ 924(c) counts, we
have emphasized that “[t]he Guidelines are, after all, purely
advisory, and unsupported speculation about a defendant's




                               15
                             IV.

       For the reasons stated, we will affirm the District
Court’s judgment of conviction, vacate the judgment of
sentence, and remand to the District Court for resentencing.42




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.” Berry, 553 F.3d at 281 (citing United States
v. Booker, 543 U.S. 220 (2005)).
42
   Post-oral argument, counsel for Mitchell filed a motion for
leave to file a supplemental brief raising a new sentencing-
related issue: whether Mitchell is eligible for a reduction of
sentence under the First Step Act of 2018, Pub. L. No. 115-
391, § 404, 132 Stat. 5194, 5222 (2018). In light of our
decision to remand the case for resentencing, we will deny the
motion without prejudice to Mitchell’s ability to renew that
argument before the District Court.




                             16
