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United States v. Foley

United States Court of Appeals, Fifth Circuit

January 3, 2020

UNITED STATES OF AMERICA, 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.

         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 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.

         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 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 arrest.'"[13] In contrast, an arrest record is not bare, and may be relied on, "when it is accompanied by a 'factual recitation of ...


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