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

Anthony Foley pleaded guilty in 2009 to being a felon in possession of a firearm; he received 120 months imprisonment and three years of supervised release.
Supervised release began in Dec. 2016; in Jan. 2019 a federal revocation petition alleged three violations: two new-state-law offenses (possession with intent to deliver; assault of a family member) and failure to notify his probation officer within 72 hours.
At the revocation hearing the government withdrew the two new-law allegations to allow state prosecution to proceed; Foley admitted the failure-to-notify charge (a Grade C violation). His Guidelines range on revocation was 7–13 months; statutory maximum was 24 months.
The district court imposed a 24-month sentence (consecutive to any state term), citing the seriousness of the pending state charges and Foley’s criminal history and finding him a continued threat.
Foley appealed, arguing the court improperly relied on bare, unsubstantiated allegations of the pending state charges; the Fifth Circuit found the court erred in relying on those bare allegations but affirmed because the error was not plain under existing circuit law.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a district court may rely on "bare" allegations of new-law violations in a revocation petition when sentencing on supervised release	Foley: Relying on unsupported, bare arrest allegations is an improper factor and made the sentence substantively unreasonable	Gov't: Court may consider pending charges; it declined to adjudicate them to avoid interfering with state prosecution and emphasized their seriousness	Court: It is error to rely on bare allegations unless supported by evidence or other indicia of reliability; here the district court did rely impermissibly, but the error was not "plain" under existing Fifth Circuit precedent, so the sentence was affirmed

United States v. Windless, 719 F.3d 415 (5th Cir. 2013) (defines "bare" arrest records and permits reliance only when supported by factual recitation with indicia of reliability)
United States v. Harris, 702 F.3d 226 (5th Cir. 2012) (discusses limits on using bare arrest information at sentencing)
United States v. Weatherton, 567 F.3d 149 (5th Cir. 2009) (upheld reliance on a revocation petition where allegations contained reasonably detailed factual account)
United States v. Walker, 742 F.3d 614 (5th Cir. 2014) (impermissible factor may be harmless if only a secondary concern, not dominant)
United States v. Wooley, 740 F.3d 359 (5th Cir. 2014) (impermissible factor can pervade and dominate sentencing, requiring reversal)
United States v. Miller, 634 F.3d 841 (5th Cir. 2011) (plainly unreasonable/plain error standard for revocation sentencing review)
United States v. Warren, 720 F.3d 321 (5th Cir. 2013) (standards for reviewing supervised-release revocation sentences)