Sentence Upheld for|Serial Felon in Chicago

CHICAGO (CN) - A Mexican citizen who has been arrested 46 times in Chicago was properly sentenced to almost six years in prison for illegally reentering the U.S. after being deported, the 7th Circuit ruled.

Edgar Ludin Lopez-Hernandez, 27, has five criminal convictions. He was sentenced to four years in prison for attempted armed robbery in 2004 but was deported less than two years into his sentence.

In 2008, Lopez-Hernandez was again imprisoned for unlawful use of a firearm by a felon. He was turned over to Immigration and Customs Enforcement and charged with illegal reentry.

He pleaded guilty and U.S. District Judge George Lindberg, noting that Lopez-Hernandez had been arrested 41 times that did not result in convictions, imposed a 71-month sentence at the top of the guidelines range.

The arrests "were for offenses that included possession of cannabis, reckless conduct, negligent driving, no driver's license, no liability insurance, domestic battery, aggravated assault, aggravated intimidation, soliciting unlawful business, reckless damage to property, disorderly conduct, and more than a dozen arrests for criminal trespass," Lindberg summarized.

On appeal, Lopez-Hernandez argued that Lindberg had violated his Due Process rights by taking the arrests into account without determining whether he had actually engaged in the illicit conduct charged.

But the 7th Circuit rejected this argument, pointing out that Lopez-Hernandez neither questioned the accuracy of the arrest summaries nor suggested that the 26 arrests for which there are no summaries were not grounded in fact.

"In light of the defendant's failure to challenge the accuracy of anything in his lengthy arrest record, the judge was entitled to assume that the 41 arrests considered as a whole, when coupled with the defendant's five convictions... justified a sentence at the top of the guidelines range," Judge Richard Posner wrote.

Lindberg's decision only added seven months to Lopez-Hernandez's term based on the median guidelines-range sentence.

"That increase can't be thought excessive," Posner noted.

"Because not all arrests even of the guilty result in prosecution-police, prosecutors, and courts lack the resources-the sentencing guidelines do not forbid a judge to consider a defendant's arrest record in deciding where to sentence within the applicable guidelines range, as happened here."

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