In determining whether to depart upwards under Section 4A1.3 of the Criminal Code, can a defendant's prior arrest record be used to determine if they have a criminal record?
The following excerpt is from U.S. v. Miller, 263 F.3d 1 (2nd Cir. 2001):
3. This does not, of course, mean that the conduct underlying such arrests may not be considered. See, e.g., United States v. Fuller, 15 F.3d 646, 651 (7th Cir. 1994) ("In determining whether to depart upwards under Section 4A1.3, district courts may not rely on defendant's prior arrest records, but rather must rely on the facts underlying the arrest.").
3. This does not, of course, mean that the conduct underlying such arrests may not be considered. See, e.g., United States v. Fuller, 15 F.3d 646, 651 (7th Cir. 1994) ("In determining whether to depart upwards under Section 4A1.3, district courts may not rely on defendant's prior arrest records, but rather must rely on the facts underlying the arrest.").
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