Revocation Sentencing and “Bare” Arrest Records: Error Exists, but Relief Requires Dominance and Plain-Error Prejudice

Introduction

In United States v. Smith (5th Cir. Jan. 12, 2026) (unpublished), Derek Dewayne Smith appealed a statutory-maximum revocation sentence imposed after he admitted five Grade C violations of supervised release. The district court varied upward from the Chapter 7 recommended range (five to eleven months) and imposed 24 months, referencing (among other factors) Smith’s “pending new law violations.”

The central issue on appeal was whether the district court’s reliance on allegedly “bare” information about pending state charges (evading arrest and failure to identify) rendered the sentence substantively unreasonable—particularly where the supporting documentation was not placed into the record and the hearing lacked reliable factual detail about the alleged conduct.

Summary of the Opinion

Holding (affirmance): The Fifth Circuit affirmed the revocation sentence.

Key determinations:

The district court erred to the extent it relied on “pending new law violations” supported only by a bare arrest record (i.e., no reliable factual basis in the record).
Because Smith did not object, review was for plain error.
The impermissible consideration was not a dominant factor in the sentencing decision; other grounds (absconding for 1.5 years, history/characteristics, drug test failure and treatment noncompliance) drove the variance.
Even assuming error, Smith failed to show prejudice (no reasonable probability of a lower sentence absent the error), and the court would not exercise discretion under the fourth prong.

Analysis

1) Precedents Cited

Case (as cited)	Principle / Role in the Decision	How It Shaped Smith
United States v. Fuentes, 906 F.3d 322 (5th Cir. 2018)	Sets the revocation appellate framework: “plainly unreasonable” review; if no procedural error, assess substantive reasonableness under abuse-of-discretion.	Anchors the court’s general revocation-sentencing lens before shifting to plain-error review due to lack of objection.
United States v. Foley, 946 F.3d 681 (5th Cir. 2020)	Core “bare arrest record” rule: it is improper to rely on “bare allegations” of new law violations (date/charge/jurisdiction/disposition only) absent evidence or indicia of reliability; also articulates “dominant factor” requirement for reversal when an improper factor is considered.	Provides the direct yardstick: the panel treats Smith’s “pending new law violations” as impermissibly “bare,” but affirms because that factor was not dominant and because plain-error prongs were not met.
United States v. Windless, 719 F.3d 415 (5th Cir. 2013)	Defines when an arrest record is “bare.”	Used (through Foley) to classify the record here as bare: the hearing lacked underlying facts and the documentation was not entered into the record.
United States v. Oyervides, No. 21-50844, 2022 WL 780424 (5th Cir. Mar. 14, 2022) (unpublished)	Illustrates when reliance on an arrest is permissible: detailed factual recitations with indicia of reliability (victim accounts, officer observations).	Serves as a contrast: Smith lacked comparable factual detail or record evidence.
United States v. Schrock, No. 24- 50050, 2024 WL 4891787 (5th Cir. Nov. 26, 2024) (unpublished)	Rejects “bare arrest record” claim where revocation petition includes detailed summary of facts and circumstances.	Further contrast: Smith’s revocation petition did not even reference the pending charges.
United States v. Campos, 922 F.3d 68 6 (5th Cir. 2019)	Confirms plain-error review applies when a defendant fails to object to an improper sentencing consideration.	Determines the standard of review and places the burden on Smith to satisfy the four prongs.
United States v. Rivera, 784 F.3d 1012 (5th Cir. 2015)	Explains “dominant factor” concept and shows that even plain error does not necessarily warrant relief where prongs three/four are not met.	Used to deny relief: even if an impermissible factor appears, reversal requires that it dominate the sentence and satisfy prejudice/discretionary prongs.
Puckett v. United States, 556 U.S. 129 (2009)	Classic articulation of the four-prong plain-error test; emphasizes appellate discretion and the integrity/public reputation prong.	Structures the analysis of why the court would not correct any assumed error given Smith’s conduct and the statutory cap.
United States v. Sanchez, 900 F.3d 6 78 (5th Cir. 2018)	Notes interplay between “obviousness” prong of Rule 52(b) and the “plainly unreasonable” concept in revocation contexts.	Supports the court’s approach to “plainness” and the role of existing law in identifying clear error.
Molina-Martinez v. United States, 578 U.S. 189 (2016)	Defines the “substantial rights” (prejudice) prong: reasonable probability of a different outcome absent the error.	Critical to rejecting prong three: the panel stresses the judge’s earlier warnings and Smith’s extensive violations as independently sufficient for the same sentence.
United States v. Mims, 992 F.3d 406 (5th Cir. 2021)	Fourth-prong discretion depends on degree of error and case facts.	Supports the decision not to correct error given Smith’s absconding and repeated noncompliance.
United States v. Davis, 602 F.3d 643 (5th Cir. 2010)	Quoted in Mims for fourth-prong framing.	Reinforces the discretionary nature of relief even after showing error and prejudice.
United States v. Cano, 981 F.3d 422 (5th Cir. 2020)	Affirms upward variances significantly based on absconding history.	Bolsters the legitimacy of treating absconding for 1.5 years as a major aggravator independent of any new charges.
United States v. Scicutella, 478 F. App'x 818 (5th Cir. 2012)	Affirms upward variance grounded in absconding/failure to abide by supervision terms.	Supports the district court’s reliance on breach-of-trust behavior rather than unproven new conduct.
United States v. Zarco-Beiza, 24 F.4th 477, n.6 (5th Cir. 2022)	Observes that when defense raises pending charges, some responsive comment by the court is understandable.	Used to contextualize why the court’s initial mention of pending charges did not signal dominance.
United States v. Daughenbaugh, 793 F. App'x 237 (5th Cir. 2019)	Revocation sentences punish breach of trust for violating supervision conditions.	Frames the normative purpose of revocation and justifies heavy weight on absconding and repeated noncompliance.

2) Legal Reasoning

A. The governing statutory framework

Under 18 U.S.C. § 3583(e)(3), a district court may revoke supervised release after considering specified § 3553(a) factors, including § 3553(a)(1) (nature/circumstances and history/characteristics) and § 3553(a)(2)(B) (deterrence), among others. The Guidelines’ Chapter 7 policy statements advise a range, but are not binding.

B. The “bare arrest record” constraint (recognized error)

The panel applies United States v. Foley to reiterate a key limitation: a court may not aggravate a revocation sentence based on a “bare” allegation of new criminal conduct—i.e., merely the existence of an arrest/charge—unless supported by evidence at the hearing or other reliable indicia in the record. Here:

The revocation petition did not list the pending charges.
At the hearing, the government identified the charges (evading arrest; failure to identify), but provided no factual narrative of Smith’s conduct.
Probation provided documentation to counsel, but it was not introduced into the record, and nothing established that it contained reliable factual details.

On that basis, the Fifth Circuit concludes the district court erred “to the extent” it relied on the “pending new law violations.”

C. Why the error did not warrant reversal (plain error; dominance; prejudice; discretion)

Because Smith did not object, the panel’s analysis is driven by plain-error doctrine and Fifth Circuit revocation-specific limits:

Dominant-factor requirement: Even where an improper factor appears, Foley and Rivera instruct that reversal is appropriate only if the impermissible consideration was a dominant factor—not merely “a secondary concern or an additional justification.” The panel finds the dominant drivers were:
- Absconding for one and one half years (highlighted by the judge; supported by United States v. Cano and United States v. Scicutella).
- History and characteristics (prior sex offense history noted; repeated noncompliance; drug violation and failure to attend treatment).
- Repeated breach-of-trust behavior consistent with the revocation purpose (citing United States v. Daughenbaugh).
No substantial-rights showing (prong three): Applying Molina-Martinez v. United States, Smith failed to show a reasonable probability of a lower sentence absent the bare-arrest consideration—particularly given the district court’s prior modification hearing warnings that violations could yield the two-year statutory maximum.
Fourth-prong discretion: Even if earlier prongs were satisfied, the panel—citing Puckett v. United States and United States v. Mims—would not exercise discretion to correct the error because Smith’s conduct (early violations, failure to comply after leniency, and prolonged absconding) did not implicate the fairness/integrity/public reputation of proceedings in a way warranting reversal.

3) Impact

Although unpublished, United States v. Smith is a clear application of the Fifth Circuit’s “bare arrest record” doctrine in the supervised-release revocation context and offers practical guidance on how revocation appeals are likely to be resolved when:

District courts: may mention pending charges, but risk error if they treat them as aggravating facts without reliable factual support in the record. Courts seeking to consider unadjudicated conduct should ensure the record contains a detailed, reliable factual basis (e.g., testimony, police reports with indicia of reliability, detailed revocation petition).
Defense counsel: must object contemporaneously if the court appears to rely on unsubstantiated pending charges. Without an objection, plain-error review makes relief difficult, especially where other aggravators (absconding, repeated violations, noncompliance after leniency) strongly support the sentence.
Appellate outcomes: even recognized “bare arrest record” error may not lead to reversal unless the improper factor is demonstrably dominant and the defendant can show a realistic probability of a different sentence.

More broadly, the decision underscores that revocation sentencing remains heavily driven by the breach-of-trust concept and compliance behavior—particularly absconding—often eclipsing marginal or weakly supported references to pending criminal matters.

Complex Concepts Simplified

Supervised release revocation: After a federal prison term, a defendant may serve supervised release. If they violate conditions (drug use, missing treatment, failing to report, absconding), the court can revoke supervision and impose prison time under 18 U.S.C. § 3583(e).
Chapter 7 policy statements: The Sentencing Guidelines provide advisory ranges for revocations (not mandatory). Here, the range was 5–11 months, but the judge imposed 24 months.
Upward variance: A sentence above the advisory range based on statutory factors (e.g., deterrence, history, breach of trust). Variances are permitted if adequately justified.
“Bare” arrest record: The mere fact that someone was arrested/charged—without reliable facts showing what they did. Courts generally cannot use a bare arrest as proof of misconduct at sentencing.
Plain error review: If no objection is made, the defendant must show (1) error, (2) clear/obvious error, (3) prejudice (likely different outcome), and (4) the error seriously harms the fairness/integrity/public reputation of proceedings.
Dominant factor test (revocation context): Even if an improper consideration appears, reversal typically requires showing it was a principal driver of the sentence—not merely an add-on.

Conclusion

United States v. Smith reinforces a two-part message in Fifth Circuit revocation sentencing: (1) courts commit error when they rely on bare pending-charge allegations without reliable factual support in the record (per United States v. Foley), but (2) reversal—especially under plain-error review—requires much more than identifying the error. The defendant must show the improper factor dominated the sentencing rationale and created a reasonable probability of a lower sentence.

In practical terms, where the record independently supports the statutory maximum—through prolonged absconding, repeated violations, and ignored opportunities for treatment—an appellate court is likely to deem any “bare arrest record” misstep non-dispositive and affirm.