     Case: 19-20129   Document: 00515256583        Page: 1   Date Filed: 01/03/2020




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                    United States Court of Appeals
                                                                             Fifth Circuit

                                                                           FILED
                                    No. 19-20129                     January 3, 2020
                                                                      Lyle W. Cayce
UNITED STATES OF AMERICA,                                                  Clerk


             Plaintiff - Appellee

v.

ANTHONY RAY FOLEY,

             Defendant – Appellant




                Appeals from the United States District Court
                     for the Southern District of Texas


Before WIENER, HIGGINSON, and HO, Circuit Judges.
WIENER, Circuit Judge:
      Defendant-Appellant Anthony Foley appeals his twenty-four month
sentence for violating a condition of his supervised release. Foley contends that
the district court improperly relied on “bare allegations” of new violations of
law contained in the revocation petition. We have not previously held in a
published decision whether such reliance constitutes error. We do so now and
AFFIRM the decision of the district court.
    Case: 19-20129     Document: 00515256583     Page: 2   Date Filed: 01/03/2020



                                  No. 19-20129
                              I. BACKGROUND
      In March 2009, Foley pleaded guilty to one count of being a felon in
possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The
district court sentenced him to 120 months of imprisonment, followed by three
years of supervised release. The conditions of supervised release prohibited
Foley from committing any crime and required him to report any arrest or
questioning by law enforcement to his probation officer within seventy-two
hours.
      Foley’s supervised release began in December 2016. In January 2019,
the U.S. Probation Office filed a petition to revoke Foley’s supervised release,
alleging that he had violated his supervised release by: (1) committing a new
violation of law because he was arrested and charged by the state with
possession with the intent to manufacture or deliver a controlled substance, (2)
committing a new violation of law because he was arrested and charged by the
state with assault of a family member, and (3) failing to notify his probation
officer within seventy-two hours following his arrest.
      At the revocation hearing, the government withdrew the first two alleged
violations because the possession and assault charges remained pending in
state court. Explaining the decision to withdraw the first two alleged
violations, counsel for the government said: “Having conversed with the
[state’s] prosecutor actually handling the cases, I believe that they have a very
strong case that they wish to pursue. And given the amount of time that he’s
looking at on the state side versus what he’s looking at here, I don’t wish to
interfere in their prosecution.” Foley pleaded true to the remaining revocation
charge of failure to notify the probation officer of his arrest within seventy-two
hours, a grade C violation under United States Sentencing Guideline
§ 7B1.1(a)(3). Foley had a criminal history category of V, so his revocation


                                        2
    Case: 19-20129         Document: 00515256583             Page: 3   Date Filed: 01/03/2020



                                        No. 19-20129
guideline range was seven to thirteen months of imprisonment. 1 The
maximum revocation sentence for a grade C violation of supervised release is
twenty-four months. 2
      The government requested a sentence of thirteen months imprisonment.
Defense counsel requested a sentence of seven months of imprisonment, with
no additional supervised release. During allocution, Foley implored the court,
“please let me be done with the federal system, and let me go back to Harris
County because I’m dealing with a tougher matter than, you know, what I’m
dealing with [in] the federal.”
      The      district    court    sentenced      Foley      to   twenty-four   months     of
imprisonment, to run consecutively to any state sentence given for the pending
charges, with no additional term of supervised release. At sentencing, the
district court explained:
      Considering the seriousness of the pending charges, his criminal
      history category of five, which is second highest in the whole
      federal system—six is the very highest. He’s back in front of me at
      a criminal history category of five—and his willful failure to notify
      the probation office within 72 hours of arrest, and I believe, based
      upon these pending—just pending charges, he’s a continued threat
      to the community. I believe an upward variance is appropriate.
      Foley promptly objected to the sentence on the grounds that it was
greater than necessary to satisfy the objectives of 18 U.S.C. § 3553(a), and he
timely filed a notice of appeal. On appeal, Foley contends that the district court
erred when it based his sentence on the unsupported allegations regarding his
commission of the possession and assault offenses.




      1   See 18 U.S.C. § 3583(e)(3); U.S.S.G. § 7B1.4(a).
      2   18 U.S.C. § 3583(e)(3).
                                               3
     Case: 19-20129       Document: 00515256583          Page: 4     Date Filed: 01/03/2020



                                       No. 19-20129
                            II. STANDARD OF REVIEW
       When a defendant preserves his objection for appeal, we review a
sentence imposed on revocation of supervised release under a “plainly
unreasonable” standard. 3 Under this standard, we first “ensure that the
district court committed no significant procedural error, such as failing to
consider the § 3553(a) factors, selecting a sentence based on clearly erroneous
facts, or failing to adequately explain the chosen sentence, including failing to
explain a deviation from the Guidelines range.” 4 We “then consider ‘the
substantive reasonableness of the sentence imposed under an abuse-of-
discretion standard.’” 5 “A sentence is substantively unreasonable if it ‘(1) does
not account for a factor that should have received significant weight, (2) gives
significant weight to an irrelevant or improper factor, or (3) represents a clear
error of judgment in balancing the sentencing factors.’” 6 Even if we determine
that a sentence is substantively unreasonable, we only vacate it if the error is
“obvious under existing law,” so that the sentence is not just unreasonable but
is plainly unreasonable. 7
                                      III. ANALYSIS
       The parties agree that Foley preserved his objection to the sentence and
that we should review his sentence under the plainly unreasonable standard.
Foley argues that the district court imposed a substantively unreasonable
sentence because it improperly gave significant weight to the unsubstantiated,
bare allegations in the revocation petition concerning his commission of the



       3  United States v. Warren, 720 F.3d 321, 326 (5th Cir. 2013).
       4  Id. (quoting United States v. Kippers, 685 F.3d 491, 497 (5th Cir. 2012)).
        5 United States v. Winding, 817 F.3d 910, 913 (5th Cir. 2016) (quoting United States

v. Miller, 634 F.3d 841, 843 (5th Cir. 2011)).
        6 Warren, 720 F.3d at 332 (quoting United States v. Peltier, 505 F.3d 389, 392 (5th Cir.

2007)).
        7 United States v. Sanchez, 900 F.3d 678, 682 (5th Cir. 2018); Warren, 720 F.3d at 326;

Miller, 634 F.3d at 843.
                                               4
       Case: 19-20129      Document: 00515256583          Page: 5     Date Filed: 01/03/2020



                                        No. 19-20129
possession and assault offenses. 8 “A sentence is substantively unreasonable if
it . . . gives significant weight to an irrelevant or improper factor” 9 and that
“impermissible consideration is a dominant factor in the court’s revocation
sentence.” 10 We first consider whether the district court gave weight to an
impermissible factor and, if it did so, we then determine whether that factor
was dominant in the revocation sentence. Doing so in this case, we conclude
that the district court erred because it gave significant weight to the bare
allegations contained in the revocation petition regarding Foley’s arrest on the
assault and possession charges and because this impermissible factor was a
dominant factor in its decision. Nonetheless, we ultimately affirm the instant
decision of the district court because this error is not clear under our existing
law.
        Generally, “[n]o limitation shall be placed on the information concerning
the background, character, and conduct of a person convicted of an offense
which a court of the United States may receive and consider for the purpose of
imposing an appropriate sentence.” 11 However, we have routinely held that it
is improper for the district court to rely on a “bare” arrest record in the context
of sentencing following a criminal conviction. 12 “An arrest record is ‘bare’ when
it refers . . . ‘to the mere fact of an arrest—i.e.[,] the date, charge, jurisdiction
and disposition—without corresponding information about the underlying
facts or circumstances regarding the defendant’s conduct that led to the



        8Foley does not argue that the district court committed procedural error and has thus
waived any argument regarding procedural error. See, e.g., United States v. Ogle, 415 F.3d
382, 383 (5th Cir. 2005) (holding an argument not raised in appellant’s brief is waived).
       9 Warren, 720 F.3d at 332 (internal quotation omitted).
       10 United States v. Rivera, 784 F.3d 1012, 1017 (5th Cir. 2015) (citing United States v.

Walker, 742 F.3d 614, 616 (5th Cir. 2014)).
       11 18 U.S.C. § 3661.
       12 See, e.g., United States v. Fields, 932 F.3d 316, 320 (5th Cir. 2019); United States v.

Harris, 702 F.3d 226, 232 (5th Cir. 2012).
                                               5
     Case: 19-20129       Document: 00515256583          Page: 6     Date Filed: 01/03/2020



                                       No. 19-20129
arrest.’” 13 In contrast, an arrest record is not bare, and may be relied on, “when
it is accompanied by a ‘factual recitation of the defendant’s conduct that gave
rise to a prior unadjudicated arrest’ and ‘that factual recitation has an
adequate evidentiary basis with sufficient indicia of reliability.’” 14
       We have applied this rule in the context of probation revocation and
sentencing relating to a special condition of supervised release. 15 In United
States v. Weatherton, we held that the district court properly relied on
information in the revocation petition which alleged that a warrant for the
defendant’s arrest had been issued for attempted first degree murder,
aggravated kidnapping, and aggravated rape. 16 We concluded that the
allegations had sufficient indicia of reliability to be relied on because they
contained a “reasonably detailed” account of the alleged crimes. 17
       We have intimated that this rule applies in the context of supervised
release revocation and sentencing, but we have not expressly done so in a
published opinion. 18 In United States v. Perez, the district court declined to
hear evidence related to the defendant’s commission of three new law
violations alleged in the revocation petition despite the government’s readiness




       13 United States v. Windless, 719 F.3d 415, 420 (5th Cir. 2013) (quoting Harris, 702
F.3d at 229) (alteration in original).
       14 Id. (quoting Harris, 702 F.3d at 231).
       15 United States v. Weatherton, 567 F.3d 149, 153 (5th Cir. 2009); United States v.

Deleon, 280 F. App’x 348, 351 (5th Cir. 2008).
       16 Weatherton, 567 F.3d at 154.
       17 Id. at 154 n.3 (“The petition for revocation states: The offense details indicate the

defendant took a female to a[n] open field where he beat, strangled, and raped her. After she
pled for her life, he left her bound at the ankles and wrists and unclothed from the waist
down. The victim managed to get only her feet untied and she ran to a nearby chemical plant,
where workers discovered her walking with her hands bound and unclothed from the waist
down.”).
       18 See United States v. Perez, 460 F. App’x 294, 302 (5th Cir. 2012) (unpublished);

United States v. Standefer, No. 95-50043, 1996 WL 46805, *3 (5th Cir. Jan. 15, 1996)
(unpublished).
                                              6
     Case: 19-20129      Document: 00515256583         Page: 7    Date Filed: 01/03/2020



                                      No. 19-20129
to offer testimony and documentation about the violations. 19 We concluded, in
an unpublished opinion, that any reliance on the bare allegations of the
violations to determine the appropriate revocation sentence would constitute
error. 20 Similarly, in United States v. Standefer, we concluded that the district
court erred in revoking the defendant’s supervised release because the
government had failed to produce any evidence regarding the new law
violations alleged in the revocation petition as the reasons for revocation. 21
       We now hold that a district court errs when it relies on a bare allegation
of a new law violation contained in a revocation petition unless the allegation
is supported by evidence adduced at the revocation hearing or contains other
indicia of reliability, such as the factual underpinnings of the conduct giving
rise to the arrest.
       In this case, the revocation petition contains only bare allegations
regarding Foley’s state arrest on the possession and assault charges. The
revocation petition includes information about the date, charge, jurisdiction,
and disposition of the pending possession and assault charges, including that
Foley was (1) arrested by the Houston Police Department on December 29,
2019; (2) charged with possession with the intent to manufacture or deliver a
controlled substance in violation of Texas Health and Safety Code, Chapter
481.112 under cause number 1616504 in Harris County Criminal Court; (3)
charged with assault of a family member in violation of Texas Penal Code
Section 22.01 under cause number 2240131 in Harris County Criminal Court;
and (4) released on bond on January 1, 2019. The petition also states that
Foley’s next state court dates were February 27, 2019 on the possession charge



       19 Perez, 460 F. App’x at 302.
       20 Id. (vacating sentence on other grounds and remanding with instructions to clearly
indicate whether the court relied on the unsupported new law violations in sentencing).
       21 Standefer, 1996 WL 46805 at *3.

                                             7
    Case: 19-20129         Document: 00515256583         Page: 8   Date Filed: 01/03/2020



                                       No. 19-20129
and February 28, 2019 on the assault charge. The revocation petition does not
provide any context regarding the underlying facts and circumstances
surrounding Foley’s arrest or his conduct leading to the arrest.
      Although the government, defense counsel, and the defendant each
referenced the pending charges at the revocation hearing, none introduced
evidence relating to those charges. In fact, the government stated, “we wish to
allow [the state] to handle [the possession and assault] cases and not bring
them here to have to prove them up.” Despite the government’s
acknowledgement of the “strong case” in state court, it did not introduce
evidence of the underlying facts and circumstances related to the pending
charges. Defense counsel likewise acknowledged that the defendant faced
“state charges with a significant penalty” but did not provide any information
regarding the underlying charges. Foley requested that he be released from
the federal system so that he could handle the “tougher matter” pending in
state court. He did not, however, admit to the behavior, provide context
surrounding the charges, or otherwise give the charges any indicia of
reliability.
      The revocation petition included only bare allegations of new violations
of law, and the allegations were not supported by evidence at the revocation
hearing and do not have other indicia of reliability. As a result, these bare
allegations were impermissible factors for the district court to consider. We
next consider whether these improper factors were dominant factors in the
revocation sentence.
      Even when the district court considers an impermissible factor in
imposing a revocation sentence, we will not vacate that sentence unless the
impermissible factor was a dominant factor in the court’s decision. 22 For


      22   Rivera, 784 F.3d at 1017; Walker, 742 F.3d at 617.
                                              8
     Case: 19-20129       Document: 00515256583          Page: 9     Date Filed: 01/03/2020



                                       No. 19-20129
example, in United States v. Walker, we upheld the imposition of a revocation
sentence which gave some weight to the impermissible factor of the defendant’s
rehabilitative needs because “it was at most a secondary concern or additional
justification for the sentence, not a dominant factor.” 23 We did so because “the
district court referred to rehabilitation only after detailing [the defendant’s]
multiple violations of his conditions of supervised release” and after
considering the § 3553(a) factors. 24 In contrast, we concluded in United States
v. Wooley that the impermissible factor of the defendant’s rehabilitative needs
“pervaded the court’s sentencing determination,” despite the court’s reference
to other factors, because the court repeatedly expressed concern for the
defendant’s need for treatment and expressly stated that it sentenced him to
thirty months “for purposes of getting [him] that help.” 25
       In the instant case, the unsubstantiated assault and possession charges
were a dominant factor in the court’s imposition of the twenty-four month
sentence because those charges pervaded the hearing. At the beginning of the
revocation hearing, the district court expressed frustration with the
government’s withdrawal of the alleged violations of supervised release related
to the commission of new offenses, repeatedly questioning the government’s
reasoning for doing so. The court expressed concern about the government’s
decision to defer to the state-court prosecution of the charges, noting that even
though Foley faced a prison term of twenty-five years to life on those charges,
“there’s no guarantee what’s going to happen in those cases, correct? . . . In
state court, as you know . . . there’s parole or, . . . they can give him 25 years
probated, walk him out the door.”


       23  Walker, 742 F.3d at 617.
       24  Id.
        25 United States v. Wooley, 740 F.3d 359, 361, 363 (5th Cir. 2014); see also Rivera, 784

F.3d at 1017 (holding impermissible factor was dominant in the revocation sentence because
it was “the district court’s main focus throughout the hearing”).
                                               9
    Case: 19-20129        Document: 00515256583         Page: 10     Date Filed: 01/03/2020



                                       No. 19-20129
       When imposing the sentence, the district court explained that it had
considered: (1) the seriousness of the pending charges, (2) the defendant’s
criminal history category, (3) the defendant’s willful failure to notify his
probation officer of his arrest, and (4) the defendant’s continued threat to
society, based on the pending charges. It is clear from the transcript of the
revocation hearing that the district court impermissibly gave substantial
weight to the unsubstantiated assault and possession charges alleged in the
revocation petition. 26
       Nevertheless, this error was not clear under existing law. And we only
reverse a sentencing court if we further determine that the error was “obvious
under existing law.” 27 We have never held, in a published opinion, that it is
impermissible for the sentencing court to rely on “bare allegations” of new law
violations alleged in a revocation petition. Consequently, the district court’s
error was not plainly unreasonable.
                                   IV. CONCLUSION
       The judgment of the district court is AFFIRMED.




       26 Contra United States v. Torres, 680 F. App’x 349 (5th Cir. 2017) (finding no reliance
on pending state charges, which had in fact been dropped, because the court referenced the
charges only in the context of ordering the revocation sentence to be served consecutively to
any state sentence).
       27 Miller, 634 F.3d at 843 (upholding a revocation sentence even though the district

court erred in giving significant weight to an impermissible factor because the error was not
obvious under existing law, noting that “our circuit’s law on this question was unclear”);
United States v. Salinas, 480 F.3d 750, 759 (5th Cir. 2007) (holding that because of unsettled
case law, district court’s error was not obvious and, therefore, not plain).
                                             10
