United States v. Anthony Foley ( 2020 )


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  •      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
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    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
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    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
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    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
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    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
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    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
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    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
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    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”).
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    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