Petition for Writ of Certiorari — Anthony Ray Foley, Petitioner v. United States

Supreme Court briefJul 6, 2020

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NO._____________

IN THE SUPREME COURT OF THE UNITED STATES

ANTHONY RAY FOLEY,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

MARJORIE A. MEYERS

Federal Public Defender

Southern District of Texas

Attorney of Record

H. MICHAEL SOKOLOW

First Assistant Federal Public Defender

Attorneys for Petitioner

440 Louisiana Street, Suite 1350

Houston, Texas 77002-1056

Telephone: (713) 718-4600

QUESTIONS PRESENTED

Is the “reasonableness” standard, under United States v.

Booker, 543 U.S. 220 (2005), the proper standard for appellate

review of a sentence imposed upon revocation of supervised

release, as a number of federal circuit courts have held, or is

the “plainly unreasonable” standard set forth in 18 U.S.C.

§3742(a)(4) (applicable to non-Guidelines offenses) the proper

standard, as other federal circuits have held?

II.

Should a federal court of appeals vacate a sentence imposed

upon revocation of supervised release when it finds that the

sentence is unreasonable due to an error that was preserved in

the court below, or should it require a showing that such a

sentence, even though unreasonable, is “plainly unreasonable”

under published circuit precedent?

PARTIES TO THE PROCEEDINGS

The parties to the proceedings are named in the caption of the case before this Court.

LIST OF DIRECTLY RELATED CASES

United States v. Foley, 946 F.3d 681 (5th Cir. 2020), reh’g denied, No. 1920129 (5th Cir. Feb. 5, 2020).

United States v. Foley, Case No. 4:08-CR-331-1 (S.D. Tex.).

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................................................................................................ i

PARTIES TO THE PROCEEDINGS ................................................................................. ii

LIST OF DIRECTLY RELATED CASES ....................................................................... ii

TABLE OF CONTENTS ................................................................................................... iii

TABLE OF CITATIONS ................................................................................................... iv

PRAYER ............................................................................................................................. 1

OPINIONS BELOW ........................................................................................................... 1

JURISDICTION .................................................................................................................. 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED.......................... 3

STATEMENT OF THE CASE ........................................................................................... 7

BASIS OF FEDERAL JURISDICTION IN THE

UNITED STATES DISTRICT COURT ........................................................................... 12

REASONS FOR GRANTING THE WRIT ...................................................................... 13

This Court should grant certiorari because the federal circuits are divided on

the standard of review for revocation sentences, because the “plainly

unreasonable” standard contravenes this Court’s precedent, and because this

case presents a question of exceptional importance. .............................................. 13

CONCLUSION ................................................................................................................. 23

APPENDIX A: Opinion of the Court of Appeals in

United States v. Foley, 946 F.3d 681

(5th Cir. 2020) ................................................................................................................. 24

APPENDIX B: Order of the Court of Appeals Denying Rehearing in

United States v. Foley, No. 19-20129

(5th Cir. Feb. 5, 2020) ...................................................................................................... 32

iii

TABLE OF CITATIONS

Page

CASES

Camreta v. Greene, 563 U.S. 692 (2011) ...................................................................... 2, 22

Deakins v. Monaghan, 484 U.S. 193 (1988) ................................................................. 2, 22

Gall v. United States, 552 U.S. 38 (2007) ....................................................... 10, 17, 19-20

Holguin-Hernandez v. United States, 140 S. Ct. 762 (2020) ............................................ 20

Kimbrough v. United States, 552 U.S. 85 (2007) .............................................................. 19

Pepper v. United States, 562 U.S. 476 (2011)..............................................................19-20

Spears v. United States, 555 U.S. 261 (2009) ................................................................... 21

United States v. Adams, 873 F.3d 512 (6th Cir. 2017) ...................................................... 18

United States v. Alaniz-Alaniz, 38 F.3d 788 (5th Cir. 1994) ............................................. 10

United States v. Bolds, 511 F.3d 568 (6th Cir. 2007)...................................................14-15

United States v. Booker, 543 U.S. 220 (2005)............................................................ passim

United States v. Bungar, 478 F.3d 540 (3d Cir. 2007) ...................................................... 14

United States v. Cotton, 399 F.3d 913 (8th Cir. 2005) ................................................ 14, 16

United States v. Crudup, 461 F.3d 433 (4th Cir. 2006) .................................................... 15

United States v. Fleming, 397 F.3d 95 (2d Cir. 2005) ...................................................... 14

United States v. Foley, 946 F.3d 681 (5th Cir. 2020),

reh’g denied, No. 19-20129 (5th Cir. Feb. 5, 2020)............................................... passim

United States v. Foley, Case No. 4:08-CR-331-1 (S.D. Tex.)............................................. ii

United States v. Kizeart, 505 F.3d 672 (7th Cir. 2007) ..................................................... 15

TABLE OF CITATIONS – (cont’d)

Page

CASES – (cont’d)

United States v. Miller, 634 F.3d 841 (5th Cir. 2011) ....................................................... 15

United States v. Miqbel, 444 F.3d 1173 (9th Cir. 2006) ................................................... 14

United States v. Mora, 135 F.3d 1351 (10th Cir. 1998) ................................................ 2, 22

United States v. Munsingwear, Inc., 340 U.S. 36 (1950) .............................................. 2, 22

United States v. Perez, 460 Fed. Appx. 294

(5th Cir. 2012) (unpublished) ..................................................................................... 9, 11

United States v. Riggans, 346 Fed. Appx. 309

(10th Cir. 2009) (unpublished) ................................................................................. 14, 16

United States v. Ryans, 237 Fed. Appx. 791

(4th Cir. 2007) (unpublished) ......................................................................................... 13

United States v. Schaffer, 240 F.3d 35 (D.C. Cir. 2001) ............................................... 2, 22

United States v. Standefer, No. 95-50043, 1996 WL 46805

(5th Cir. Jan. 15, 1996) (unpublished) ............................................................................. 9

United States v. Sweeting, 437 F.3d 1105 (11th Cir. 2006) ........................................ 14, 16

United States v. Warren, 720 F.3d 321 (5th Cir. 2013) ...............................................10-11

CONSTITUTION

U.S. Const. amend. V .......................................................................................................... 3

STATUTES

18 U.S.C. § 3231 ............................................................................................................... 12

18 U.S.C. § 3553 ................................................................................................................. 3

18 U.S.C. § 3553(a) .................................................................................................... passim

TABLE OF CITATIONS – (cont’d)

Page

STATUTES – (cont’d)

18 U.S.C. § 3553(a)(1) ..................................................................................................... 3,5

18 U.S.C. § 3553(a)(2) ........................................................................................................ 3

18 U.S.C. § 3553(a)(2)(B) ................................................................................................... 5

18 U.S.C. § 3553(a)(2)(C) ................................................................................................... 5

18 U.S.C. § 3553(a)(2)(D) ................................................................................................... 5

18 U.S.C. § 3553(a)(3) ........................................................................................................ 3

18 U.S.C. § 3553(a)(4) .....................................................................................................3-5

18 U.S.C. § 3553(a)(5) .....................................................................................................4-5

18 U.S.C. § 3553(a)(6) .....................................................................................................4-5

18 U.S.C. § 3553(a)(7) .....................................................................................................4-7

18 U.S.C. § 3553(b)(1) .....................................................................................................4-5

18 U.S.C. § 3583 ................................................................................................................. 5

18 U.S.C. § 3583(e)(1) ........................................................................................................ 5

18 U.S.C. § 3583(e)(2) ........................................................................................................ 5

18 U.S.C. § 3583(e)(3) .....................................................................................................5-6

18 U.S.C. § 3583(e)(4) ........................................................................................................ 6

18 U.S.C. § 3742(a)(4) ......................................................................................................... i

18 U.S.C. § 3742(g) ............................................................................................................. 4

28 U.S.C. § 994(a)(1) .......................................................................................................... 3

TABLE OF CITATIONS – (cont’d)

Page

STATUTES – (cont’d)

28 U.S.C. § 994(a)(2) .......................................................................................................... 4

28 U.S.C. § 994(a)(3) .......................................................................................................... 4

28 U.S.C. §994(p) ................................................................................................................ 4

28 U.S.C. § 1254(1) ............................................................................................................. 2

Tex. Health & Safety Code § 481.112 ................................................................................ 7

Tex. Penal Code § 22.01...................................................................................................... 7

RULES

Sup. Ct. R. 13.1.................................................................................................................... 1

MISCELLANEOUS

Judicial Business of the United States Courts: Annual Report

of the Director, Post-Conviction Supervision and Table 8 (2019)................................. 22

Miscellaneous Order Addressing the Extension of Filing Deadlines

(Sup. Ct. Mar. 19, 2020) .................................................................................................. 1

vii

PRAYER

Petitioner Anthony Ray Foley respectfully prays that a writ of certiorari be granted

to review the judgment of the United States Court of Appeals for the Fifth Circuit. The

Fifth Circuit issued its opinion on January 3, 2020, and denied rehearing on February 5,

2020. In the alternative, Mr. Foley prays that the Court grant equitable vacatur of the Fifth

Circuit’s judgment or grant certiorari, vacate the judgment, and remand. See infra text, at

2 & nn.1-2, 22-23 & nn.6-7.

OPINIONS BELOW

On January 3, 2020, the Fifth Circuit entered its judgment and opinion affirming

Mr. Foley’s judgment of conviction and sentence. See United States v. Foley, 946 F.3d 681

(5th Cir. 2020). The Fifth Circuit’s opinion is reproduced as Appendix A to this petition.

On February 5, 2020, the Fifth Circuit entered its order denying panel rehearing. See Order,

United States v. Foley, No. 19-20129 (5th Cir. Feb. 5, 2020). The order denying rehearing

is reproduced as Appendix B to this petition.

JURISDICTION

On January 3, 2020, the Fifth Circuit entered its opinion and judgment in this case.

On February 5, 2020, the Fifth Circuit entered its order denying Mr. Foley’s petition for

panel rehearing in this case. This petition is filed within 150 days after the order denying

rehearing and thus is timely. See Sup. Ct. R. 13.1; see also Miscellaneous Order Addressing

the Extension of Filing Deadlines (Sup. Ct. Mar. 19, 2020). The jurisdiction of this Court

is invoked under 28 U.S.C. § 1254(1).

Moreover, should this case become moot in light of the October 20, 2020, release

date for Mr. Foley shown on the Bureau of Prisons’ web site, 1 Mr. Foley requests that the

Court grant equitable vacatur of the Fifth Circuit’s opinion and judgment to prevent that

decision “‘from spawning any legal consequences’’” and “‘strip the decision below of its

binding effect.’” Camreta v. Greene, 563 U.S. 692, 713 (2011) (quoting United States v.

Munsingwear, Inc., 340 U.S. 36, 40-41 (1950), and Deakins v. Monaghan, 484 U.S. 193,

200 (1988)). 2 In the further alternative and to expedite this case, Mr. Foley requests that

the Court grant certiorari, vacate the judgment, and remand for resentencing.

Mr. Foley’s projected release day can be found at https://www.bop.gov/inmateloc/.

See also United States v. Schaffer, 240 F.3d 35, 36 (D.C. Cir. 2001) (applying

Munsingwear in a criminal case); United States v. Mora, 135 F.3d 1351, 1358 & n.4 (10th Cir.

1998) (same).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The United States Constitution provides in pertinent part as follows:

No person shall . . . be deprived of life, liberty, or property, without due

process of law . . . .

U.S. Const. amend. V

Section 3553 of Title 18, United States Code, provides in pertinent part as follows:

(a) Factors to be considered in imposing a sentence.--The court shall impose

a sentence sufficient, but not greater than necessary, to comply with the

purposes set forth in paragraph (2) of this subsection. The court, in

determining the particular sentence to be imposed, shall consider—

(1) the nature and circumstances of the offense and the history and

characteristics of the defendant;

(2) the need for the sentence imposed—

(A) to reflect the seriousness of the offense, to promote respect for the

law, and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(D) to provide the defendant with needed educational or vocational

training, medical care, or other correctional treatment in the most

effective manner;

(3) the kinds of sentences available;

(4) the kinds of sentence and the sentencing range established for—

(A) the applicable category of offense committed by the

applicable category of defendant as set forth in the

guidelines—

(i) issued by the Sentencing Commission pursuant to

section 994(a)(1) of title 28, United States Code, subject

to any amendments made to such guidelines by act of

Congress (regardless of whether such amendments have

yet to be incorporated by the Sentencing Commission

into amendments issued under section 994(p) of title

28); and

(ii) that, except as provided in section 3742(g), are in

effect on the date the defendant is sentenced; or

(B) in the case of a violation of probation or supervised release,

the applicable guidelines or policy statements issued by the

Sentencing Commission pursuant to section 994(a)(3) of title

28, United States Code, taking into account any amendments

made to such guidelines or policy statements by act of

Congress (regardless of whether such amendments have yet to

be incorporated by the Sentencing Commission into

amendments issued under section 994(p) of title 28);

(5) any pertinent policy statement—

(A) issued by the Sentencing Commission pursuant to section

994(a)(2) of title 28, United States Code, subject to any

amendments made to such policy statement by act of Congress

(regardless of whether such amendments have yet to be

incorporated by the Sentencing Commission into amendments

issued under section 994(p) of title 28); and

(B) that, except as provided in section 3742(g), is in effect on

the date the defendant is sentenced.

(6) the need to avoid unwarranted sentence disparities among

defendants with similar records who have been found guilty of similar

conduct; and

(7) the need to provide restitution to any victims of the offense.

(b) Application of guidelines in imposing a sentence.—

(1) In general.--Except as provided in paragraph (2), the court shall

impose a sentence of the kind, and within the range, referred to in

subsection (a)(4) unless the court finds that there exists an aggravating

or mitigating circumstance of a kind, or to a degree, not adequately

taken into consideration by the Sentencing Commission in

formulating the guidelines that should result in a sentence different

from that described. In determining whether a circumstance was

adequately taken into consideration, the court shall consider only the

sentencing guidelines, policy statements, and official commentary of

the Sentencing Commission. In the absence of an applicable

sentencing guideline, the court shall impose an appropriate sentence,

having due regard for the purposes set forth in subsection (a)(2). In

the absence of an applicable sentencing guideline in the case of an

offense other than a petty offense, the court shall also have due regard

for the relationship of the sentence imposed to sentences prescribed

by guidelines applicable to similar offenses and offenders, and to the

applicable policy statements of the Sentencing Commission.

18 U.S.C. § 3553(a)-(b)(1).

Section 3583 of Title 18, United States Code, provides in pertinent part as follows:

(e) Modification of conditions or revocation.--The court may, after

considering the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C),

(a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7)—

(1) terminate a term of supervised release and discharge the defendant

released at any time after the expiration of one year of supervised

release, pursuant to the provisions of the Federal Rules of Criminal

Procedure relating to the modification of probation, if it is satisfied

that such action is warranted by the conduct of the defendant released

and the interest of justice;

(2) extend a term of supervised release if less than the maximum

authorized term was previously imposed, and may modify, reduce, or

enlarge the conditions of supervised release, at any time prior to the

expiration or termination of the term of supervised release, pursuant

to the provisions of the Federal Rules of Criminal Procedure relating

to the modification of probation and the provisions applicable to the

initial setting of the terms and conditions of post-release supervision;

(3) revoke a term of supervised release, and require the defendant to

serve in prison all or part of the term of supervised release authorized

by statute for the offense that resulted in such term of supervised

release without credit for time previously served on postrelease

supervision, if the court, pursuant to the Federal Rules of Criminal

Procedure applicable to revocation of probation or supervised release,

finds by a preponderance of the evidence that the defendant violated

a condition of supervised release, except that a defendant whose term

is revoked under this paragraph may not be required to serve on any

such revocation more than 5 years in prison if the offense that resulted

in the term of supervised release is a class A felony, more than 3 years

in prison if such offense is a class B felony, more than 2 years in prison

if such offense is a class C or D felony, or more than one year in any

other case; or

(4) order the defendant to remain at his place of residence during

nonworking hours and, if the court so directs, to have compliance

monitored by telephone or electronic signaling devices, except that an

order under this paragraph may be imposed only as an alternative to

incarceration.

18 U.S.C. § 3583(e)(1)-(4).

STATEMENT OF THE CASE

In 2008, the petitioner, ANTHONY RAY FOLEY, was sentenced to serve 120

months in custody and a three-year term of supervised release for possessing a firearm

subsequent to a felony conviction. Two years after Mr. Foley began his term of supervised

release, his probation officer filed a petition to revoke his supervised release alleging that

he had: (1) possessed with intent to manufacture or deliver a controlled substance; (2)

assaulted a family member; and (3) failed to notify the probation officer of his arrest within

72 hours.

The allegations in the petition were as follows:

On or about December 29, 2018, in Houston, Harris County, Texas, Anthony

Foley did then and there commit the offense of possession with intent to

man/del a controlled substance, in violation of Texas Health and Safety

Code, Chapter 481.112. Mr. Foley was arrested by the Houston Police

Department and charged under Cause No. 1616504 in the 339th Criminal

District Court in Harris County, Texas. On January 1, 2019, Mr. Foley was

released on a $20,000 bond, and the next Court date is February 27, 2019.

On or about December 29, 2018, in Houston, Harris County, Texas, Anthony

Foley did then and there commit the offense of assault-family member, in

violation of Texas Penal Code, Section 22.01. Mr. Foley was arrested by the

Houston Police Department and charged under Cause No. 2240131 in the

339th Harris County Criminal Court at Law No. 2. On January 1, 2019, Mr.

Foley was released on a $3,000 bond, and the next Court date is February 28,

2019.

Mr. Anthony Foley was arrested on December 29, 2018 as evidenced by the

Houston Police Department offense report number 163774118. Mr. Foley

failed to notify the U.S. Probation Officer within 72 hours of his arrest.

At the revocation hearing, defense counsel and the prosecutor informed the court

that the government did not intend to proceed on the controlled substance violation or the

assault violation and was withdrawing them. The court confirmed that the government was

only proceeding on the Grade C violation of failing to timely inform the probation officer

of an arrest, and Mr. Foley then pleaded true to the Grade C violation.

Defense counsel requested a prison sentence of 7 months based on the applicable

Guideline range of 7 to 13 months for a Grade C violation, the imposition of the maximum

sentence for the original offense, the completion of 2 out of the 3 years of supervised

release without incident, and the potential penalty Mr. Foley was facing on pending charges

in state court. Mr. Foley personally requested leniency, and the government asked for a

prison term of 13 months.

The court then imposed sentence as follows:

THE COURT: 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.

The sentence is being imposed pursuant to the chapter seven policy

statements, and with the variance, I believe, now satisfies 18, United States

Code, Section 355 – Section 3553(a).

The sentence – the, what is it – the supervised release is hereby

revoked. He’s sentenced to – back to the federal penitentiary for a term of 24

months with no term of supervision of release as follows and is to run

concurrent to any other sentence that he might – I mean, to run consecutive

to any sentence that he might receive in the current pending state

proceedings. (Emphasis added).

Defense counsel “object[ed] to the sentence imposed as being greater than necessary

to serve the purposes of [§] 3553(a), specifically, that Mr. Foley is being unduly punished

for conduct that is pending before the state.” The court responded that the objection was

noted.

On appeal, Mr. Foley argued that the district court had erred by sentencing him

based on unsupported allegations in the revocation petition. See App. Br. 8-11. In its

opinion, the Fifth Circuit recognized its unpublished opinions holding that a district court

errs by revoking supervised release and sentencing a defendant based on unsubstantiated

allegations. United States v. Foley, 946 F.3d 681, 686-87 (5th Cir. 2020) (relying United

States v. Perez, 460 Fed. Appx. 294, 302 (5th Cir. 2012) (unpublished), and United States

v. Standefer, No. 95-50043, 1996 WL 46805, *3 (5th Cir. Jan. 15, 1996) (unpublished)),

The Fifth Circuit thus agreed with Mr. Foley and decided:

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.

Foley, 946 F.3d at 687. The Fifth Circuit also specifically held that “[t]he 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.” Id.

But, the Fifth Circuit affirmed the sentence because it applied the “plainly

unreasonable” standard of review, which it articulated as follows: “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.” Id.

at 685. The Fifth Circuit held that “this error was not clear under existing law” and that

“the district court’s error was not plainly unreasonable” because “[w]e 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 the petitions.” Id. at 688.

Mr. Foley filed a petition for panel rehearing, in which he pointed out that the Fifth

Circuit’s opinions in Standefer and Perez were unpublished because they relied on and

were merely applications of binding precedent articulating the well-established legal rules

that the preponderance of the evidence standard applies at a revocation hearing and that,

when a trial court relies upon erroneous information or assumptions, a remand for

resentencing is required. See Pet. Reh’g 6-7 (quoting 5th Cir. R. 47.5.1 (regarding

unpublished opinions), and noting that Perez cited Gall v. United States, 552 U.S. 38, 51

(2007), and that Standefer cited United States v. Alaniz-Alaniz, 38 F.3d 788, 792 (5th Cir.

1994)). The petition also pointed out that a published Fifth Circuit opinion, United States

v. Warren, 720 F.3d 321, 330 (5th Cir. 2013), had reiterated that sentences based upon

erroneous and material information or assumptions violate due process, that this principle

covers a revocation sentencing as well as an original sentencing, and that it is procedural

error at a revocation sentencing to base a sentence on clearly erroneous facts. Pet. Reh’g

8-9 (quoting Warren, 720 F.3d at 331, and noting that Warren relied on, among other cases,

Perez, 460 Fed. Appx. at 302). The petition additionally pointed out that, after deciding to

vacate and remand on other grounds, the Warren opinion stated that the district court would

have procedurally erred had it imposed a revocation sentence based on conduct charged in

the revocation petition when the defendant had not pleaded true to that conduct and the

court had declined to hear the government’s supporting evidence. Pet. Reh’g 9 (quoting

Warren, 720 F.3d at 331).

On February 5, 2020, the Fifth Circuit denied rehearing. Order, United States v.

Foley, No. 19-20129 (5th Cir. Feb. 5, 2020).

BASIS OF FEDERAL JURISDICTION IN THE

UNITED STATES DISTRICT COURT

The district court had jurisdiction pursuant to 18 U.S.C. § 3231.

REASONS FOR GRANTING THE WRIT

This Court should grant certiorari because the federal circuits are

divided on the standard of review for revocation sentences, because

the “plainly unreasonable” standard contravenes this Court’s

precedent, and because this case presents a question of exceptional

importance.

Introduction

This case presents an issue that is of significant import. The decision below as well

as the holdings of other courts of appeals stand in direct contravention of the standard

announced in Booker that “courts of appeals review sentencing decisions for

unreasonableness.” United States v. Booker, 543 U.S. 220, 264 (2005). This case presents

a unique opportunity for the Court to provide guidance to the lower courts and notice to

prosecutors and defense attorneys regarding the standards that apply to review of sentences

imposed upon revocation of probation and supervised release.

The Circuits Are Divided on the Question Presented.

Prior to Booker, federal courts of appeals reviewed revocation sentences using the

“plainly unreasonable” standard articulated in § 3742(e)(4) because such revocation

sentences were not expressly governed by actual Sentencing Guidelines but instead by

advisory policy statements. See United States v. Ryans, 237 Fed. Appx. 791, 793 (4th Cir.

2007) (unpublished) (“Pre-Booker, courts agreed . . . the policy statements in Chapter 7 are

merely advisory.”) This Court’s opinion in Booker, however, made the Sentencing

Guidelines advisory and excised the appellate standard of review set forth in § 3742(e),

which depended upon the Guidelines’ “mandatory nature.” Booker, 543 U.S. at 245. In so

doing, this Court instructed appellate courts to apply a standard of reasonableness in

reviewing sentences. Id. at 264.

1. The Second, Third, Eighth, Ninth, and Eleventh Circuits have held that Booker

did replace the “plainly unreasonable” standard found in § 3742(e)(4). United States v.

Bungar, 478 F.3d 540, 541 (3d Cir. 2007) (holding, on an appeal of a sentence imposed

upon revocation of supervised release, “post-Booker, that our review should be for

reasonableness”); United States v. Miqbel, 444 F.3d 1173, 1176 n.5 (9th Cir. 2006)

(“Booker’s ‘reasonableness’ standard has displaced the former ‘plainly unreasonable’

standard in the context of revocation sentencing.”); United States v. Sweeting, 437 F.3d

1105, 1106 (11th Cir. 2006) (“In Booker . . . the Supreme Court excised § 3742(e) and

replaced it with a reasonableness standard.”); United States v. Fleming, 397 F.3d 95, 99

(2d Cir. 2005) (“the [Supreme] Court is fairly understood as requiring that its announced

standard of reasonableness now be applied not only to review of sentences for which there

are guidelines but also to review of sentences for which there are no applicable guidelines.

Thus, we will review the District Court’s sentence for reasonableness.”); United States v.

Cotton, 399 F.3d 913, 916 (8th Cir. 2005) (“The new standard is review for

unreasonableness with regard to § 3553(a).”). Two circuits, the Sixth and Tenth, also apply

a reasonableness standard of review, but do not deem that standard to be different than the

standard applied before Booker. United States v. Riggans, 346 Fed. Appx. 309, 311 n.3

(10th Cir. 2009) (plainly unreasonable “is the same level of review as the reasonableness

standard of review called for by Booker and its progeny”); United States v. Bolds, 511 F.3d

568, 575 (6th Cir. 2007) (“we hold that there is no practical difference between the preBooker ‘plainly unreasonable’ standard of review of supervised release revocation

sentences and our postBooker review of sentences for ‘unreasonableness’”). All of these

courts have reviewed revocation sentences to determine whether such sentences are

unreasonable.

In contrast, the Fourth, Fifth, and Seventh Circuits have found that Booker did not

abrogate the “plainly unreasonable” standard of review for revocation sentences. United

States v. Miller, 634 F.3d 841, 843 (5th Cir. 2011) (agreeing with the Fourth Circuit’s

holding that Booker did not abrogate the “plainly unreasonable standard”); United States

v. Kizeart, 505 F.3d 672, 674 (7th Cir. 2007) (“a defendant who challenges his sentence

for violating supervised release must show that the sentence is plainly unreasonable”);

United States v. Crudup, 461 F.3d 433, 437 (4th Cir. 2006) (“[W]e hold that revocation

sentences should be reviewed to determine whether they are ‘plainly unreasonable’ with

regard to those § 3553(a) factors applicable to supervised release revocation sentences.”).

These courts have rejected the Booker reasonableness standard and have continued to use

their pre-Booker approaches to review of revocation sentences.

The split is acknowledged and characterized not only by the language of the

standard to be applied, but different interpretations of that language. Bolds, 511 F.3d at 574

(stating that, “[f]rom the twelve circuits, five different approaches have emerged,” and

explaining the standard of review in other circuits). Several circuits have attempted to

reconcile the split. The Sixth, Eighth, Tenth, and Eleventh Circuits have held that review

under the Booker reasonableness standard is effectively the same as review under the

“plainly unreasonable” standard. Riggans, 346 Fed. Appx. at 311 n.3 (plainly unreasonable

“is the same level of review as the reasonableness standard of review called for by Booker

and its progeny”); Bolds, 511F.3d at 575 (“we hold that there is no practical difference

between the pre-Booker ‘plainly unreasonable’ standard of review of supervised release

revocation sentences and our post-Booker review of sentences for ‘unreasonableness’”);

Sweeting, 437 F.3d at 1106 (“numerous circuits applying the reasonableness standard

prescribed in Booker to sentences imposed upon revocation of supervised release have

concluded that the reasonableness standard of Booker is essentially the same as the ‘plainly

unreasonable’ standard of § 3742(e)(4). We agree.”); Cotton, 399 F.3d at 916 (“The new

standard is review for unreasonableness with regard to § 3553(a). This is the same standard

prescribed in § 3742(e)(4).”).

2. There is, however, a meaningful difference between the two standards of review

because the “plainly unreasonable” standard is interpreted to impose a standard of review

that is even more stringent than abuse of discretion. Indeed, under the “plainly

unreasonable” standard, a procedurally and substantively unreasonable sentence may be

upheld if the district court’s error is not “obvious.” This case is a prime example of that.

Here, the Fifth Circuit acknowledged that its prior unpublished opinions had held that a

district court errs by revoking supervised release and sentencing a defendant based on

unsubstantiated allegations. Foley, 946 F.3d at 686-87. And, the Fifth Circuit even agreed

with Mr. Foley and decided 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.” Id. at 687. Moreover,

the Fifth Circuit also specifically held that “[t]he 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.” Id.

But, the Fifth Circuit applied the “plainly unreasonable” standard of review to affirm

the sentence, holding that the district court’s error was not “plainly unreasonable” because

it was not clear under existing law: “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.” Id. at 688. And, when Mr. Foley subsequently filed a

petition for panel rehearing, the Fifth Circuit still refused to vacate the sentence even

though his petition pointed out that published Fifth Circuit case law recognized that it is

procedural error for a district court to impose a revocation sentence based on conduct

charged in the revocation petition when the defendant has not pleaded true to that conduct

and the court has heard no supporting evidence for it. Pet. Reh’g 9. In other words, here

the sentence was unreasonable, see, e.g., Gall, 552 U.S. at 51 (reiterating that “selecting a

sentence based on clearly erroneous facts” is a significant error and unreasonable), but that

was insufficient under the Fifth Circuit’s “plainly unreasonable” standard of review. And,

it is clear not only from the Fifth Circuit’s opinion that the sentence in this case would have

been vacated under the reasonableness standard, but also from cases in other circuits. See,

e.g., United States v. Adams, 873 F.3d 512, 523 (6th Cir. 2017) (finding sentence imposed

on revocation of supervised release to be unreasonable because the court imposed the

sentence based on unreliable information, and vacating and remanding for resentencing).

Because the “plainly unreasonable” standard of review produces different outcomes

for similarly-situated defendants when a judge imposes an unreasonable sentence upon

revocation of supervised release, and because this creates geographic disparities that are

wholly inconsistent with Congress’s goals in sentencing reform, see Booker, 543 U.S. at

265, this Court should grant certiorari.

Application of the “Plainly Unreasonable” Standard of Review Contravenes

the Court’s Precedent in this Area.

Although Booker involved review of an initial Guidelines-governed sentence and

not a sentence resulting from revocation of supervised release, the Court’s pronouncements

regarding the appellate standard of review were clear. The statute that dictated the “plainly

unreasonable” standard for non-Guidelines cases was excised in Booker. 543 U.S. at 25862. Appellate courts should instead review sentencing decisions for “reasonableness.” Id.

at 260. In excising § 3742(e), this Court found that “a statute that does not explicitly set

forth a standard of review may nonetheless do so implicitly.” Id. The Court inferred an

appropriate review standard based on “related statutory language, the structure of the

statute, and the ‘sound administration of justice.’” Id. at 260-61. The Court found that these

factors implied “a practical standard of review already familiar to appellate courts: review

for ‘unreasonableness.’” Id.

Although Booker did not excise § 3742(a)(4), which permits a defendant to file a

notice of appeal if the sentence “was imposed for an offense for which there is no

sentencing guideline and is plainly unreasonable,” the Court’s dicta makes clear that it did

not intend for appellate courts to look to § 3742(a) for a standard of review. Indeed, in its

pronouncement of the reasonableness standard of appellate review, the Court cited six

exemplary “reasonableness” cases – all of which were appeals from revocation decisions.

Booker, 543 U.S. 262. If the Court had intended that appellate courts review revocation

sentences using a “plainly unreasonable” standard of review, it would not have cited these

revocation decisions as evidence that appellate judges were well-equipped to engage in

reasonableness review.

The Court’s post-Booker jurisprudence further suggests that the proper standard of

appellate review of any sentencing decision is “reasonableness.” See Gall, 552 U.S. at 46

(“As a result of our decision [in Booker], the Guidelines are now advisory, and appellate

review of sentencing decisions is limited to determining whether they are ‘reasonable.’”);

see also Kimbrough v. United States, 552 U.S. 85, 90-91 (2007) (“Booker further instructed

that ‘reasonableness’ is the standard controlling appellate review of the sentence district

courts impose.”) Indeed, this Court has repeatedly instructed appellate courts to review

sentencing decisions for reasonableness. In Pepper v. United States, 562 U.S. 476 (2011),

for example, this Court reiterated that “district courts may impose sentences within

statutory limits based on appropriate consideration of all of the factors listed in § 3553(a),

subject to appellate review for ‘reasonableness.’” Id. at 490 (citing Gall, 552 U.S. at 4919

51).

Most recently, in a case involving an appeal of a sentence imposed upon revocation

of supervised release, this Court stated that an appellate court’s task is to review “whether

the trial court’s chosen sentence was ‘reasonable’ or whether the judge instead ‘abused his

discretion in determining that the § 3553(a) factors supported’ the sentence imposed.”

Holguin-Hernandez v. United States, 140 S. Ct. 762, 766 (2020) (quoting Gall, 552 U.S.

at 56, and citing Booker, 543 U.S. at 261-262); see also id. at 766 (“Our decisions make

plain that reasonableness is the label we have given to ‘the familiar abuse-of-discretion

standard’ that ‘applies to appellate review’ of the trial court’s sentencing decision.”)

(quoting Gall, 552 U.S. at 46). “The “reasonableness” standard announced in Booker

coupled with this Court's subsequent jurisprudence suggest that reasonableness is the

appropriate standard of review for revocation sentences. The Court’s failure to strike §

3742(a)(4) in Booker is no more significant, for purposes of the standard of review, than

its failure to strike § 3742(a)(3). 3 It was not an invitation for appellate courts to apply the

“plainly unreasonable” standard of review to sentencing decisions.4

The Fifth Circuit and other courts applying the “plainly unreasonable” standard of

Moreover, review of revocation sentences using the “plainly unreasonable” standard

necessarily relies on the same statutory language that was excised in §3742(e)(4). It cannot be the

case that this Court intended courts of appeals to review revocation sentences using a “plainly

unreasonable” standard when it clearly excised the portion of the statute that provided for such

review.

More importantly, Mr. Foley’s appeal was proper under § 3742(a)(l) because his sentence

“was imposed in violation of the law,” specifically § 3583(e)(3). Because his right to appeal arose

independent of § 3742(a)(4), that provision should not affect appellate review of his case.

review to revocation sentences have “so far departed from the accepted and usual course

of judicial proceedings . . . as to call for an exercise of this Court's supervisory power.”

Sup. Ct. R. 10(a). They have seized upon the Court's failure to excise §3742(a)(4) in order

to stand by the course of review they had adopted pre-Booker. In this case, the Fifth

Circuit’s application of its version of the “plainly unreasonable” standard produced a

clearly unjust result. At the revocation hearing, Mr. Foley’s counsel objected to the

sentence because it was based on an improper consideration of conduct that was pending

adjudication in the state court. Despite finding that the district court erred by reliance

unsubstantiated allegations, the Fifth Circuit upheld the sentence. Mr. Foley thus has no

relief from his unreasonable sentence that was twice the top end of the Guideline range and

was based on bare allegations. As even the Fifth Circuit’s opinion shows, the error in this

case is evident and demonstrates “the need to clarify at once” the standard of review for

revocation sentences. See Spears v. United States, 555 U.S. 261, 268 (2009). Review is

necessary to provide Mr. Foley with relief and to clarify the standard of review for the

multitude of other defendants will face revocation of their supervised release.

Review Is Warranted Because this Case Presents Questions Of Exceptional

Importance.

The questions presented in this case are exceptionally important, meriting this

Court’s immediate attention. Most noteworthy is the sheer number of defendants affected

by this issue. As of September 30, 2019, 128,904 federal offenders were under postconviction supervision, and 113,198 federal offenders were serving terms of supervised

release. See Judicial Business of the United States Courts: Annual Report of the Director,

Post-Conviction Supervision and Table 8 (2019). 5 Moreover, there were 17,208

revocations of post-conviction supervision. See id.

Under the Fifth Circuit's application of the “plainly unreasonable” standard of §

3742(a)(4), an individual serving a term of supervised release may be forced to endure an

unreasonable sentence if the district court committed an error and imposed an unreasonable

sentence merely because the error is determined not to be “obvious” or “plain” under

existing precedent.

For the foregoing reasons, this Court should grant certiorari to clarify the proper

standard of appellate review of revocation sentences and to make clear that the proper

standard is reasonableness. Should this case become moot in light of the October 20, 2020,

release date for Mr. Foley shown on the Bureau of Prisons’ web site, 6 he alternatively

requests that the Court grant equitable vacatur of the Fifth Circuit’s opinion and judgment

to prevent that decision “‘from spawning any legal consequences’’” and “‘strip the decision

below of its binding effect.’” Camreta v. Greene, 563 U.S. 692, 713 (2011) (quoting United

States v. Munsingwear, Inc., 340 U.S. 36, 40-41 (1950), and Deakins v. Monaghan, 484

U.S. 193, 200 (1988)). 7 In the further alternative and to expedite this case, Mr. Foley

requests that the Court grant certiorari, vacate the judgment, and remand for resentencing.

Available at https://www.uscourts.gov/post-conviction-supervision-judicial-business-

Mr. Foley’s projected release day can be found at https://www.bop.gov/inmateloc/.

2019.

See also United States v. Schaffer, 240 F.3d 35, 36 (D.C. Cir. 2001) (applying

Munsingwear in a criminal case); United States v. Mora, 135 F.3d 1351, 1358 & n.4 (10th Cir.

1998) (same).

CONCLUSION

For the foregoing reasons, the petitioner, Anthony Ray Foley, prays that this Court

grant certiorari. In the alternative, Mr. Foley request that this Court grant equitable vacatur

of the Fifth Circuit’s opinion and judgment or grant certiorari, vacate the judgment, and

remand for resentencing. See supra text, at 2 & nn.1-2; see also supra text, at 22 & n.6-7.

Date: July 6, 2020

Respectfully submitted,

MARJORIE A. MEYERS

Federal Public Defender

Southern District of Texas

Attorney of Record

H. MICHAEL SOKOLOW

First Assistant Federal Public Defender

Attorneys for Petitioner

440 Louisiana Street, Suite 1350

Houston, Texas 77002-1669

Telephone: (713) 718-4600

United States v. Foley, 946 F.3d 681 (2020)

When defendant preserves his objection for

appeal, the Court of Appeals reviews a sentence

imposed on revocation of supervised release

under a “plainly unreasonable” standard.

946 F.3d 681

United States Court of Appeals, Fifth Circuit.

UNITED STATES of America, Plaintiff - Appellee

Anthony Ray FOLEY, Defendant – Appellant

[2]

No. 19-20129

FILED January 3, 2020

Criminal Law

Probation

Criminal Law

Sentencing

On appeal from sentence imposed on revocation

of supervised release, the Court of Appeals

first ensures that district court committed no

significant procedural error, such as failing

to consider the statutory sentencing factors,

selecting a sentence based on clearly erroneous

facts, or failing to adequately explain the chosen

sentence, including failing to explain a deviation

Synopsis

Background: Defendant was found, on his plea of true, to

have violated condition of his supervised release, for failing to

timely report the fact that he had been arrested, and the United

States District Court for the Southern District of Texas, David

Hittner, Senior District Judge, imposed maximum 24-month

sentence. Defendant appealed.

from the Guidelines range.

3553(a).

[3]

Holdings: The Court of Appeals, Wiener, Senior Circuit

Judge, held that:

18 U.S.C.A. §

Criminal Law

Revocation of probation or

supervised release

If sentence imposed on revocation of supervised

release is not procedurally unreasonable, the

Court of Appeals, on challenge to sentence,

considers the substantive reasonableness of the

sentence under an abuse-of-discretion standard.

[1] as matter of first impression, district court errs when it

relies on a bare allegation of a new law violation contained in

a revocation petition in order to impose revocation sentence;

[2] district court improperly relied on bare allegations of new

law violations when sentencing defendant on revocation of

supervised release violation, and its reliance on those bare

allegations was dominant factor in sentence imposed; but

[4]

Sentencing and Punishment

Purposes in General

Factors or

Sentence is substantively unreasonable if it: (1)

does not account for a factor that should have

received significant weight, (2) gives significant

weight to irrelevant or improper factor, or (3)

represents a clear error of judgment in balancing

[3] the Court would not set aside defendant's sentence as

plainly unreasonable, where it had never before held, in

published opinion, that it was impermissible for court to

rely on “bare allegations” of new law violations alleged in

revocation petition.

the sentencing factors.

18 U.S.C.A. § 3553(a).

Affirmed.

[5]

Procedural Posture(s): Appellate Review; Sentencing or

Penalty Phase Motion or Objection.

Criminal Law

Sentencing and Punishment

Even if the Court of Appeals determines

that sentence imposed by district court is

substantively unreasonable, the Court will only

vacate it if the error is obvious under existing law,

so that the sentence is not just unreasonable, but

is plainly unreasonable.

West Headnotes (14)

[1]

Criminal Law

Probation

APPENDIX A 1

United States v. Foley, 946 F.3d 681 (2020)

has an adequate evidentiary basis with sufficient

indicia of reliability.

[6]

Sentencing and Punishment

considered

Matters

[10]

Sentence imposed on revocation of supervised

release is substantively unreasonable if it gives

significant weight to an irrelevant or improper

factor, and if that impermissible consideration

is a dominant factor in the court’s revocation

sentence.

[7]

In sentencing defendant following revocation of

supervised release, 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.

Sentencing and

Punishment

Admissibility in General

Sentencing and

Punishment

Documentary evidence

While, as general rule, no limitation should be

placed on information concerning background,

character, and conduct of defendant which

federal court may receive and consider for

purpose of imposing an appropriate sentence,

it is improper for a district court to rely on a

“bare” arrest record in the context of sentencing

following a criminal conviction.

§ 3661.

[8]

[11]

Sentencing and Punishment

Sentence

within statutory or other limitation for offense

of conviction

District court improperly relied on bare

allegations of new law violations when

sentencing defendant on revocation of

supervised release, where revocation petition

contained only bare allegations regarding

defendant’s state arrest on firearm possession

and assault charges without providing any

context regarding the underlying facts and

circumstances surrounding defendant’s arrest or

his conduct leading to the arrest, and where

the government, defense counsel, and defendant

while each referenced the pending state charges

at revocation hearing, never introduced any

evidence relating to those charges.

18 U.S.C.A.

Sentencing and

Punishment

Documentary evidence

Arrest record is “bare arrest record,” on which

district court should not rely when sentencing

following a criminal conviction, if it refers

to the mere fact of arrest, I.e., to the date,

charge, jurisdiction and disposition, without

corresponding information about the underlying

facts or circumstances regarding defendant’s

conduct that led to the arrest.

[9]

Sentence

Sentencing and Punishment

within statutory or other limitation for offense

of conviction

[12]

Criminal Law

dispositions

Probation and related

Even when district court considers an

impermissible factor in imposing a sentence on

revocation of supervised release, the Court of

Appeals will not vacate that sentence unless the

impermissible factor was a dominant factor in the

court’s decision.

Sentencing and

Punishment

Documentary evidence

Arrest record is not “bare arrest record,” and

is one on which district court may rely when

sentencing following a criminal conviction,

if it is accompanied by factual recitation of

defendant’s conduct that gave rise to a prior

unadjudicated arrest, and if that factual recitation

[13]

Criminal Law

dispositions

Probation and related

United States v. Foley, 946 F.3d 681 (2020)

Sentence

Sentencing and Punishment

within statutory or other limitation for offense

of conviction

Marjorie A. Meyers, Federal Public Defender, Evan Gray

Howze, Assistant Federal Public Defender, H. Michael

Sokolow, Assistant Federal Public Defender, Federal Public

Defender's, Office Southern District of Texas, Houston, TX,

for Defendant-Appellant.

Unsubstantiated state assault and firearm

possession charges against defendant whose

supervised release had been revoked were a

dominant factor in district court’s imposition of

a maximum 24-month sentence, as required for

the Court of Appeals to vacate the revocation

sentence as substantively unreasonable, where

those charges pervaded the revocation hearing,

and it was clear from transcript of revocation

hearing that district court impermissibly gave

substantial weight to the unsubstantiated assault

and firearm possession charges alleged in

revocation petition.

[14]

Criminal Law

dispositions

Before WIENER, HIGGINSON, and HO, Circuit Judges.

Opinion

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 *684 now and AFFIRM the decision of the

district court.

Probation and related

While district court, in sentencing defendant

on revocation of supervised release, improperly

relied on bare allegations of unsubstantiated state

assault and firearm possession charges pending

against defendant, and while its reliance on

these bare allegations was dominant factor in

the maximum 24-month sentence that it imposed

for defendant's violation of supervised release

condition in failing to timely report his arrest

on these state charges, the Court of Appeals

would not set aside defendant's sentence as

plainly unreasonable, where the Court had never

before held, in prior published opinion, that it

was impermissible for court, in sentencing for

supervised release violation, to rely on “bare

allegations” of new law violations alleged in

revocation petition.

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.

*683 Appeals from the United States District Court for the

Southern District of Texas, David Hittner, U.S. District Judge

Attorneys and Law Firms

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]

Andrew C. Sand, Carmen Castillo Mitchell, Assistant U.S.

Attorney, U.S. Attorney's Office, Southern District of Texas,

Houston, TX, for Plaintiff-Appellee.

United States v. Foley, 946 F.3d 681 (2020)

based his sentence on the unsupported allegations regarding

his commission of the possession and assault offenses.

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

II. STANDARD OF REVIEW

[1]

[2]

[3]

[4]

[5] When a defendant preserves

his objection for appeal, we review a sentence imposed

on revocation of supervised release under a “plainly

United States Sentencing Guideline § 7B1.1(a)

under

(3). Foley had a criminal history category of V, so his

revocation guideline range was seven to thirteen months

unreasonable” standard. 3 Under this standard, we first

“ensure that the district court committed no significant

of imprisonment. 1 The maximum revocation sentence for

a grade C violation of supervised release is twenty-four

months.

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

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.”

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

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:

unreasonable. 7

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.

III. ANALYSIS

[6] 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

Foley promptly objected to the sentence on the grounds that it

was greater than *685 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

United States v. Foley, 946 F.3d 681 (2020)

and because this impermissible factor was a *686 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.

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

[7]

[8]

[9] Generally, “[n]o limitation shall be placed [10] We now hold that a district court errs when it relies

on the information concerning the background, character,

on a bare allegation of a new law violation contained in

and conduct of a person convicted of an offense which a

a revocation petition unless the allegation is supported by

court of the United States may receive and consider for the

evidence adduced at the revocation hearing or contains other

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

indicia of reliability, such as the factual underpinnings of the

conduct giving rise to the arrest.

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

[11] 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 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.

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 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

United States v. Weatherton, we

supervised release. 15 In

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

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

“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 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 *687 United States

v. Standefer, we concluded that the district court erred in

United States v. Foley, 946 F.3d 681 (2020)

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.”

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.

When imposing the sentence, the district court explained

[12]

[13] Even when the district court considers an

that it had considered: (1) the seriousness of the pending

impermissible factor in imposing a revocation sentence,

charges, (2) the defendant’s criminal history category, (3) the

we will not vacate that sentence unless the impermissible

defendant’s willful failure to notify his probation officer of

factor was a dominant factor in the court’s decision. 22

his arrest, and (4) the defendant’s continued threat to society,

based on the pending charges. It is clear from the transcript

United States v. Walker, we upheld

For example, in

of the revocation hearing that the district court impermissibly

the imposition of a revocation sentence which gave some

gave substantial weight to the unsubstantiated assault and

weight to the impermissible factor of the *688 defendant’s

rehabilitative needs because “it was at most a secondary

possession charges alleged in the revocation petition. 26

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

[14] 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.

§ 3553(a) factors. 24 In contrast,

United States v. Wooley that the

we concluded in

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

*689 IV. CONCLUSION

purposes of getting [him] that help.” 25

The judgment of the district court is AFFIRMED.

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

All Citations

946 F.3d 681

Footnotes

See

18 U.S.C. § 3583(e)(3);

U.S.S.G. § 7B1.4(a).

18 U.S.C. § 3583(e)(3).

United States v. Warren, 720 F.3d 321, 326 (5th Cir. 2013).

Id. (quoting United States v. Kippers, 685 F.3d 491, 497 (5th Cir. 2012)).

United States v. Foley, 946 F.3d 681 (2020)

United States v. Winding, 817 F.3d 910, 913 (5th Cir. 2016) (quoting

841, 843 (5th Cir. 2011)).

Warren, 720 F.3d at 332 (quoting

United States v. Miller, 634 F.3d

United States v. Peltier, 505 F.3d 389, 392 (5th Cir. 2007)).

Miller, 634 F.3d

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

at 843.

Foley 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).

Warren, 720 F.3d at 332 (internal quotation omitted).

United States v. Rivera, 784 F.3d 1012, 1017 (5th Cir. 2015) (citing

614, 616 (5th Cir. 2014)).

United States v. Walker, 742 F.3d

18 U.S.C. § 3661.

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).

United States v. Windless, 719 F.3d 415, 420 (5th Cir. 2013) (quoting Harris, 702 F.3d at 229) (alteration

in original).

Id. (quoting Harris, 702 F.3d at 231).

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).

Weatherton, 567 F.3d at 154.

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.”).

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).

Perez, 460 F. App'x at 302.

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).

Standefer, 1996 WL 46805 at *3.

Rivera, 784 F.3d at 1017;

Walker, 742 F.3d at 617.

Id.

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”).

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).

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

United States v. Foley, 946 F.3d 681 (2020)

“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).

End of Document

Case: 19-20129

Document: 00515298815

Page: 1

Date Filed: 02/05/2020

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

___________________

No. 19-20129

___________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee

ANTHONY RAY FOLEY,

Defendant - Appellant

_______________________

Appeal from the United States District Court

for the Southern District of Texas

_______________________

ON PETITION FOR REHEARING

Before WIENER, HIGGINSON, and HO, Circuit Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing is DENIED.

ENTERED FOR THE COURT:

__/s/ Jacques L. Wiener, Jr._________

UNITED STATES CIRCUIT JUDGE

APPENDIX B

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.