United States of America v. Derrek E. Arrington

# United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 21, 2025

Decided December 2, 2025

No. 24-3077

UNITED STATES OF AMERICA,
APPELLEE

V.
DERREK E. ARRINGTON,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 1:00-cr-00159-1)

Lisa B. Wright, Assistant Federal Public Defender,
argued the cause for appellant. With her on the briefs was A. J.
Kramer, Federal Public Defender. Tony Axam Jr., Assistant
Federal Public Defender, entered an appearance.

Timothy R. Cahill, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Jeanine Ferris
Pirro, U.S. Attorney, and Chrisellen R. Kolb, Assistant U.S.
Attorney.

Before: CHILDS and GARCIA, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.

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Opinion for the court filed by Senior Circuit Judge
RANDOLPH.

RANDOLPH, Senior Circuit Judge: A jury convicted
Derrek Arrington on two counts: (1) assaulting a Park Police
Officer with a deadly weapon (a car) when Arrington, trying to
avoid arrest, trapped the officer's arm in the driver's side
window and drove away, dragging the officer through an
intersection; and (2) being a felon in possession of a stolen
firearm. We affirmed Arrington's convictions, for which Judge
Robertson imposed a sentence of 240 months' imprisonment.
See United States v. Arrington, 309 F.3d 40 (D.C. Cir. 2002).

For reasons unnecessary to recount, in 2024 a different
district judge-Lamberth, J .- set aside Arrington's original
sentence. By then Arrington had finished serving his time for
the assault and gun charges. But he remained in prison because
he committed those two offenses while he was on parole for an
armed robbery conviction in the D.C. Superior Court. That court
revoked his parole and required him to serve the remaining 11
years' imprisonment of his armed robbery sentence. Arrington's
Superior Court parole-revocation sentence ran from the end of
his federal imprisonment. So Arrington asserts that if Judge
Lamberth resentenced him to less than 240 months, Arrington's
release date from his parole violation sentence would be earlier.
We shall assume he is correct.

The issues on appeal deal with whether Judge Lamberth
erred in resentencing Arrington to a 240-month term of
imprisonment.

Arrington's Sentencing Guidelines range was 140-175
months' imprisonment. APP 236. Judge Lamberth decided to

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order an upward variance of 65 months from the top of the
range, thus making the resentence equal to the original
sentence-the maximum sentence permissible. APP 211.
Foremost in the judge's remarks at the hearing and in his written
Statement of Reasons was "the moral depravity" of Arrington's
attempted murder of the Park Police officer-after dragging the
officer down the street in his car, Arrington shot him in the face
at point-blank range, severing one of the officer's facial nerves
and causing permanent facial paralysis and loss of vision.1 The
judge's Statement of Reasons also mentioned Arrington's
convictions for armed robberies, one of which came after his
original sentencing in this case, and the felon-in-possession
charge, which the judge thought was not adequately factored into
the overall Guideline calculation.

The main ground of appeal is that Judge Lamberth failed
to consider Arrington's purported rehabilitation while in prison
between the first sentence in this case and the hearing on
resentencing. Arrington is correct that on resentencing, a
defendant's interim rehabilitation is a predictive consideration
that may lend support to a downward departure from the
Sentencing Guidelines range. See, e.g., Pepper v. United States,
562 U.S. 476, 481 (2011). Judge Lamberth, an experienced
federal judge, knew this full well, as our court recognized in
United States v. Hunter, 809 F.3d 677, 684-85 (D.C. Cir. 2016).

" Judge Lamberth stated at the hearing: "If I merely hued
to the high end of the guideline range, it would not provide
adequate penalty for the heinous act which was coming within
a millimeter of ending the officer's life by the shot which I find
that you did, in fact, shoot him in the face. I think then, that
there's a variance upward in the guidelines to the maximum
sentence under the statute." APP 257.

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Arrington's counsel presumably realized that Judge
Lamberth did not need to be reminded to consider evidence of
reformation. Even when prompted, defense counsel registered
no objection to the judge's treatment of Arrington's
rehabilitation claim. We therefore may reverse only if Judge
Lamberth committed a "plain error" under Federal Rule of
Criminal Procedure 52(b)-that is, a mistake so obvious that the
judge should have recognized his blunder even though counsel
failed to point it out. See United States v. Olano, 507 U.S. 725,
734 (1993).

To support his argument, Arrington cites the judge's
remarks at the hearing: "I'm not sentencing the guy that is
appearing before me here today. I'm doing what I think would
have been the sentence Judge Robertson would have imposed
were you there then." APP 259. Together these statements may
seem a bit confusing. One interpretation-Arrington's-is that
the judge was ignoring the defense's evidence of rehabilitation.
The more likely interpretation is that Judge Lamberth was
merely observing that Arrington had changed over the years.
The judge's remarks came immediately after he spoke about
sentencing many "young guys" and after he told Arrington,
"You're not that person anymore." APP 259.2 We view the
judge's next statement-particularly in light of its ending with
"were you there then"-to mean that Judge Lamberth intended

2 The judge followed this statement with: "I'm very glad
to hear you say that, and I hope that can be where we are today
in your life and you will not be set back by the things I've said
here today, because I'm sentencing the guy that was before
Judge Robertson." APP 259. This states the obvious-
Arrington's resentence would reflect the crimes Arrington was
convicted of committing when he appeared before Judge
Robertson.

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to sentence Arrington as Judge Robertson would have done if he
were resentencing Arrington. This follows from Judge
Lamberth's very next remark, which Arrington neglects to
mention: "I'd have to - I have to sentence you with what I have
today." APP 259. This contradicts Arrington's claim that the
judge was refusing to consider any developments between the
imposition of the original sentence and the resentencing hearing.

We do not suggest that our reading of Judge Lamberth's
remarks leaps from the transcript pages. Oral statements are
often not as precise as written statements;3 even legal
documents-such as opinions and statutes-are sometimes less
than perfectly clear. But here, if defense counsel had an inkling
that Judge Lamberth was refusing to consider the evidence of
rehabilitation,4 one would have expected defense counsel to
seek clarification. Yet counsel lodged no such objection. There
is also a presumption Arrington has not overcome-that the
sentencing judge considered evidence of mitigation when
defense counsel interposed no objection and the judge's ultimate
sentence was "reasonable." United States v. Pyles, 862 F.3d 82,
88 (D.C. Cir. 2017). In addition, the record shows that Judge
Lamberth did not fail to "consider" the rehabilitation evidence.
In this context the antonym of "consider" may be "ignore" or it
may be "overlook." Judge Lamberth did neither. At the hearing

3 Oral statements also have an interpretive dimension
written statements lack. See United States v. Zeigler, 994 F.2d
845, 849 (D.C. Cir. 1993).

4 Arrington's counsel admitted that before her client's
scales fell from his eyes, he was not exactly a model prisoner.
He had been disciplined three times for getting into violent
altercations with other inmates and twice for possessing hidden
weapons. APP 128-131.

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Judge Lamberth congratulated Arrington on his progress. See
note 2 supra. But it became clear as the hearing drew to a close,
that rather than departing downward, Judge Lamberth was going
to depart upward. And as we next discuss, he expressed a sound
basis for doing so.

Despite Arrington's claim to the contrary, Judge
Lamberth sufficiently explained his decision to impose an
upward variance. He had good reason to find that Arrington's
conduct was "more harmful or egregious" than the typical
conduct of a defendant found guilty of assault with a dangerous
weapon causing severe injuries. United States v. Brown, 808
F.3d 865, 867 (D.C. Cir. 2015) (quoting United States v. Nicely,
492 F. App'x. 119, 121 (D.C. Cir. 2012)); see United States v.
Brown, 892 F.3d, 385, 406 (D.C. Cir. 2018); United States v.
Iracks, 106 F.4th 61, 68 (D.C. Cir. 2024). At the hearing Judge
Lamberth stated that "the guidelines are really contemplating
that you drug the policeman through the intersection while
fleeing from a traffic stop and that caused the debilitating injury"
and that "because of the gravity of Officer Daniels's injury and
the wrongfulness of using the firearm, I will depart and treat the
case the same as if - wasn't just drug through the intersection,
but also you shot officer Daniels." APP 257. As the
government puts it: "The district court did not abuse its
discretion by determining that Arrington's conduct in this
case-which included both a vehicular assault and an attempt to
murder a police officer by shooting him in the face at close
range-was more harmful and egregious than that of a defendant
who had only committed a vehicular assault that caused similarly
serious injuries." Appellee Br. 32. That rationale is enough to
justify the upward variance ordered here. See Gall v. United
States, 552 U.S. 38, 50 (2007).

Arrington also claims that Judge Lamberth's variance

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was improper because the judge partly relied on a reason he did
not adequately explain-namely, that the Guidelines' calculation
completely erased the felon-in-possession charge. But this is
beside the point. As suggested above, the judge indicated at the
resentencing hearing that Arrington's shooting of the officer in
the face by itself justified a variance up to the statutory
maximum sentence of 240 months. See note 1 supra; APP 257.
Thus, any error in the treatment of the felon-in-possession
conviction was harmless. See 28 U.S.C. § 2111; Fed. R. Crim.
P. 52(a).

We see no need to discuss Arrington's other arguments.
These have been considered and rejected.

Affirmed.