IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-10670

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

DAVID ELLIOTT BURNEY,

Defendant-Appellant

Appeal from the United States District Court 

for the Northern District of Texas 

USDC No. 4:09-CR-121-Y

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:*

David Elliott Burney (“Burney”) appeals his sentence of eighteen-months

imprisonment following the revocation of his supervised release. Because we find

that the district court erred in sentencing Burney on the basis of Burney having

committed a Grade A violation, we VACATE and REMAND for resentencing.

FACTS

Burney pleaded guilty to possessing stolen mail in 2010. He was sentenced

to twelve months and one day in prison and a three-year term of supervised

United States Court of Appeals

Fifth Circuit

F I L E D

August 15, 2012

Lyle W. Cayce

Clerk

 Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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release. His supervised release term began on January 30, 2011. In the first five

months following supervised release, he violated several terms of his release,

including: (1) admitting or testing positive for use of methamphetamines six

times; (2) failing to report for urinalysis twice; (3) failing to report to group

counseling five times; (4) being arrested for possession of a controlled substance

in violation of Texas law. The district court filed a warrant for Burney’s arrest

on June 24, 2011. His supervised release violation report (“SRVR”) indicated

that being in possession of a controlled substance was a Grade A violation under

U.S.S.G. § 7B1.1(a)(1) and § 7B1.3(a)(1) and therefore required mandatory

supervised release revocation and carried a policy statement range of 24-30

months imprisonment. Because Burney’s maximum sentence under the statute

was two years imprisonment, his range was limited to twenty-four months. 

At his revocation hearing, Burney pleaded true to every allegation except

the allegation that he possessed methamphetamines, a Grade A violation. The

government then dismissed this allegation. Despite the fact that Burney no

longer warranted a sentence based upon a Grade A violation, the district court

adopted the SRVR in full. Defense counsel informed the court that the guideline

range should be different from the range given in the SRVR. The district court

did not modify its adoption of the SRVR, and proceeded to find that Burney

violated, among other conditions, “[s]tandard conditions relating to drug

possession,” and “committing another federal, state, or local crime.” The district

court further stated that the Grade A violation required revocation. The district

court revoked Burney’s release and sentenced him to eighteen months in prison

and eighteen months of supervised release. Burney timely appealed.1

Burney raised two issues on appeal. He argued, first, that the district court

1

erroneously relied on his having committed a Grade A violation after the government

dismissed that allegation. Burney also argued that his sentence was in plain error because the

district court erroneously considered 18 U.S.C. § 3553(a)(2)(A) factors. We do not reach this

second issue because we vacate the sentence and remand for resentencing on the basis of

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STANDARD OF REVIEW

Because Burney preserved his error below, we review the district court’s

interpretation of the Guidelines de novo, and its findings of fact for clear error.

United States v. Evans, 587 F.3d 667, 672 (5th Cir. 2009); United States v.

Headrick, 963 F.2d 777, 779 (5th Cir. 1992). We review sentences imposed on the

revocation of a supervised release under a “plainly unreasonable” standard. See

United States v. Miller, 634 F.3d 841, 843 (5th Cir. 2011).2

DISCUSSION

Burney argues that the district court erroneously relied on the SRVR for

the purpose of finding Burney responsible for committing a Grade A violation,

even after the government dismissed the only charge against Burney that

amounted to a Grade A violation.

In reviewing Burney’s sentence revocation under the plainly unreasonable

standard, we apply a bifurcated review process. Id.; see also Gall v. United

Burney’s first argument.

At his sentencing hearing, when the district court adopted the SRVR, Burney’s

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counsel interjected, objecting that “the guideline range would be different since the criminal

violation was dismissed.” The district court acknowledged Burney’s objection, saying, “[y]es,

sir.” When a “defendant has failed to make his objection to the guidelines calculation

sufficiently clear, the issue is considered forfeited, and we review only for plain error.” United

States v. Chavez-Hernandez, 671 F.3d 494, 497 (5th Cir. 2012). “The standard . . . shields this

court from ruling on issues that have been insufficiently vetted below.” Id. Objections must

be raised below to place the district court on notice about potential issues for appeal, and to

give the district court an opportunity to “clarif[y] or, if necessary, correct[] itself.” United

States v. Hernandez-Martinez, 485 F.3d 270, 272-273 (5th Cir. 2007). Therefore, objections that

are too vague are reviewed on appeal for plain error because they cannot “alert the court to

the legal argument he now presents.” Id. at 272. Burney’s objection was not too vague.

Although he did not specifically refer to the methamphetamine charge as a Class A violation,

he specifically informed the court that the SRVR’s guideline range recommendation should be

changed because the government dismissed the criminal violation. Of all Burney’s violations,

only possession of methamphetamine resulted in a criminal charge, and it was the only

violation that the government dismissed and the only violation that the SRVR identified as

being a Class A violation. Moreover, the district court, by saying “yes, sir,” indicated to Burney

that it understood the objection. The district court therefore was placed on sufficient notice

about this issue as to preserve it for appeal. 

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States, 552 U.S. 38, 51 (2007) (establishing a bifurcated process for reviewing

sentences). We first evaluate whether the district court procedurally erred; if

there is no error, we then consider the substantive reasonableness of the

sentence imposed under an abuse-of-discretion standard. Miller, 643 F.3d at 843.

Significant procedural errors include “failing to calculate (or improperly

calculating) the Guidelines range.” Gall, 552 U.S. at 51. We have held that “a

district court must always ‘correctly calculat[e] the applicable Guidelines range’

before imposing a sentence.” United States v. Ibarra-Luna, 628 F.3d 712, 713

(5th Cir. 2010) (citing United States v. Morales-Sanchez, 609 F.3d 637, 641-42

(5th Cir. 2010)). 

At Burney’s sentencing hearing, the district court explicitly and without

reservation adopted the SRVR, despite the fact that the SRVR included a factual

finding that Burney was responsible for possession of methamphetamine, the

only Grade A violation alleged against Burney. The government dismissed that

charge at the sentencing hearing. The district court did not modify its adoption

of the SRVR, even after the defense reminded the district court that Burney was

no longer being held accountable for the possession charge and therefore 

warranted a different guideline range. The district court then noted that “[t]he

Chapter 7 policy statements require that the Court revoke supervision for a

Grade A violation.” The government concedes that the district court erred in

concluding that Burney committed a Grade A violation. We conclude that the

district court clearly erred when it referred to Burney having committed a Grade

A violation and when it adopted the SRVR’s finding that Burney committed a

Grade A violation.

An error in calculating the policy statement range will be reversed only if

the error is found to be harmful. “[A] sentencing error may not be found

harmless unless the proponent of the sentence ‘proffer[s] sufficient evidence to

convince the appellate court that the district court would have imposed the same

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sentence, absent the error.’” Ibarra-Luna, 628 F.3d at 718 (second alteration in

original). The government argues that the error was harmless because the

district court imposed a non-Guideline sentence. A sentence need not be vacated

based on an incorrect calculation procedural error if “the district court imposes

a non-Guideline sentence and that advisory sentence did not directly ‘result’

from any Guideline error.” United States v. Tzep-Mejia, 461 F.3d 522, 526 (5th

Cir. 2006). However, a below-Guideline or non-Guideline sentence does not

necessarily render harmless an improper Guideline calculation. As we explained

in Ibarra-Luna:

Even when the district court ultimately decides to impose a

sentence outside the Guidelines range, an error in its Guidelines

calculation may still taint the non-Guidelines sentence. For

instance, the district court might settle upon a particular nonGuidelines sentence . . . by starting with the Guidelines range and

adding or subtracting a fixed number of years. In such cases it may

be clear that the district court’s reasons for rejecting a sentence in

the Guidelines range are unaffected by the error, but the error

nevertheless is not harmless because the district court would not

have imposed the very same sentence.

Id. (emphasis added). 

The government has not shown that district court’s erroneous reliance on

the Grade A violation did not “taint” the non-guidelines sentence. In addition to

adopting the SRVR and referencing the Grade A violation in holding that

revocation was mandatory, the district court cited the fact that Burney “incurred

a new felony drug arrest in Tarrant County”as a reason for sentencing Burney

to an 18-month sentence. We therefore conclude that the sentence directly

resulted from the error.

The government also argues that the error was harmless because the court

relied on the Grade A violation only in finding that revocation was mandatory,

and not in choosing the length of the prison term. To support its position, the

government noted that the district court only explicitly referenced the Grade A

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violation when it found that Burney’s action required revocation. However, this

is not evidence that the district court therefore did not rely on that Grade A

violation in sentencing Burney. Indeed, the district court did specifically

reference “a new felony drug arrest” when sentencing Burney. Moreover, the

district court sentenced Burney and determined that revocation was mandatory

only after adopting in full the SRVR, which found Burney accountable for a

Grade A violation. 

The government did not show that the district court would not have given

Burney a lower sentence, absent its error. Therefore, it has not shown that the

procedural sentencing error was harmless.

CONCLUSION

For the reasons given, we VACATE the sentence and REMAND for

resentencing.

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JERRY E. SMITH, Circuit Judge, dissenting.

The panel majority blames a district judge for misunderstanding

defense counsel’s objection when that lawyer took no action to help correct or

point out the obvious confusion. Because our precedent requires attorneys to

take responsibility for presenting and clarifying their side’s arguments in

district court, I respectfully dissent.

After the district court adopted the statements contained in the

supervised release violation report (“SRVR”), defense counsel objected: 

“[H]aving adopted the [SRVR], the guideline range would be different since

the criminal violationSSif it matters, the guideline range would be different

since the criminal violation was dismissed.” The court responded, “Yes, sir.” 

Id. After noting that it had reviewed all the evidence, the court stated, “The

Chapter 7 policy statements require that the Court revoke supervision for a

Grade A violation pursuant to Section 7B1.3(a)(1) of the sentencing guidelines

. . . .”

Defense counsel never objected to the court’s use of “Grade A violation”

during or after pronouncement of sentence. Objections in the district court

must be “ample and timely to bring the alleged federal error to the attention

of the trial court and enable it to take appropriate corrective action.” Douglas

v. Alabama, 380 U.S. 415, 422 (1965). The preemptive objection to the

sentence here failed to preserve the error, because the combination of the

court’s “Yes, sir” in response to the objection, but use of “Grade A violation”

during the sentence, plainly shows a misunderstanding regarding the nature

of the objection. Counsel’s failure to clarify the precise objection, when it was

plain the court neither followed it nor told him it was rejected, cost the court

the opportunity to correct its mistake.

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One cannot distill the requirements for preserving objections into onesize-fits-all criteria; the standard is functional rather than formalistic. The

purpose of reviewing objections that are not addressed in the district court

only for plain error is to make counsel vigilant so that issues that can be

addressed in the district court will be. We should not be asking whether 1

some theoretical judge could have understoodSSgiven what words the

attorney used and what information was on the recordSSthe error to which he

was objecting. But, rather, we need to determine whether the attorney took

the steps necessary to ensure the district judge recognized the alleged error

and decided on a corrective action (if any) to take.

Here, comparing the district court’s reaction to Burney’s objection with

the announced sentence shows that the objection did not bring the error

regarding the grade to the court’s attention so it could address the problem. 

When the court accepted the SRVR, defense counsel objected, “[T]he guideline

range would be different since the criminal violation was dismissed.” The

court responded, “Yes, sir,” which suggests the court either agreed with the

objection or at least accepted the input. Yet, when the court read the

sentence, it still said “Grade A.” The guideline range can be lowered in only

two ways: (a) Reduce the grade or (b) reduce the criminal history. Thus, there

are only three possibilities why, in the face of defense counsel’s objection, the

judge would still have said a “Grade A” violation occurred: The court (1) did

United States v. Chavez-Hernandez, 671 F.3d 494, 497 (5th Cir. 2012) (“The purpose

1

of plain error review is to instill in litigators the importance of . . . as necessary, clarifying

issues to th[e] court. Timely, adequate objections allow the trial court to rule in the first

instance and, if necessary, correct itself without spawning an appeal. This standard usually

shields the district court from reversal because of error that was unwittingly committed,

because not brought to its attention”).

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not realize Burney was objecting to the grade, (2) misspoke and meant to say 2

Grade B, or (3) overruled the objection. 3

Because the court did not overrule Burney’s pre-emptive objection,

identifying the problem to the district court after sentence was announced

would have immediately rectified the situation. Of the three options provided

above, the only thing we know for certain is that option 3 did not occur: “Yes,

sir” is not a denial. Both options 1 and 2 would have been rectified by a

timely clarification: Burney’s attorney only had to say that the offense should

not be Grade A, because the sole Grade A offense was dropped. If the court

did not realize that Burney meant to object to the grade before, pointing out

that the violation was not Grade A would have cleared up the miscommunication. If the judge meant to say “Grade B,” then he would have corrected his

previous statement. Either way, the exchange takes a matter of seconds,

avoiding the unnecessary invocation of the appellate process and

resentencing.

The adversarial process is fundamental to our criminal justice system.4

We help incentivize this vigorous representation in the trial

courtSSpreserving the truth-seeking function it achievesSSby reviewing only

for plain error those issues that counsel fails adequately to object to and

clarify in the district court. The strictness of plain-error review embodies

that incentive-based decisionmaking, because plain error is met only by “error

 That is, the court thought counsel was objecting to the criminal history, thought he 2

was merely requesting a downward departure because Burney is charged with fewer violations

than originally included in the SRVR, or something else entirely.

The remaining violations easily qualify as Grade B, which also provides for mandatory 3

revocation.

Penson v. Ohio, 488 U.S. 75, 84 (1988) (“The paramount importance of vigorous repre- 4

sentation follows from the nature of our adversarial system of justice. This system is premised

on the well-tested principle that truth-as well as fairness-is best discovered by powerful statements on both sides of the question.” (internal quotation marks omitted)).

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so ‘plain’ the trial judge and prosecutor were derelict in countenancing it,

even absent the defendant’s timely assistance in detecting it.” United States

v. Frady, 456 U.S. 152, 163 (1982). 

When we start asking judges and prosecutors to make defendants’

arguments for them, we turn the entire adversarial process on its head. That

is why we review plain error so strictly: because it is the defense attorney’s

duty to challenge mistakes that harm his client’s position. Appellate courts

reverse an error the defense did not adequately present only if it is so extreme

that even the adversarial system is not worth preserving at the cost of

tolerating it. This illustrates just how weighty the burden is on defense

counsel to help the district court understand his client’s position and the

relevant law.

Yet, the incentives that plain-error review sets cannot succeed when

appellate courtsSSas hereSScircumvent the standard by finding objections

properly preserved despite obvious displays of confusion from the district

court and ambivalence from defense counsel. If plain-error review serves to

increase trial attorney performanceSSas our precedent claims it doesSSthen

decisions narrowing the application of plain-error review can only reduce the

quality of representation at trial.

It was evident from the district court’s statements regarding sentencing

that there was miscommunication regarding counsel’s objection. The issue

should have been brought to the court’s attention so it could have been

addressed at the time, rather than making this appellate court guess at what

occurred in the district court. We are presented with a district court’s

inadvertent error, which should have been caught and brought to the court’s

attention by vigilant counsel. Because defense counsel failed in this regard,

plain-error review is appropriate.

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B.

Under plain-error review, Burney is not entitled to relief. The

plain-error test has four prongs: (1) error; (2) that is plain; (3) that affects

substantial rights; and (4) that seriously affects the fairness, integrity, or

public reputation of judicial proceedings. See Johnson v. United States, 520

U.S. 461, 466-67 (1997). The first two prongs are met: Burney was plainly

not guilty of a Grade A violation. Prong three is met where “the appellant can

show a reasonable probability that, but for the district court’s error, the

appellant would have received a lower sentence.” United States v.

Garcia-Quintanilla, 574 F.3d 295, 303-04 (5th Cir. 2009). In United States v.

Davis, 602 F.3d 643, 646 (5th Cir. 2010), the district court sentenced Davis to

24 months for breaking the terms of his supervised release, after determining

his advisory range was 15-21 months for a Grade A violation. On appeal, we

decided that Davis had committed a Grade B violation; the proper range was

therefore 6-12 months. Id. We concluded there was no plain error, because

Davis had not shown “a reasonable probability that the district court’s

consideration of an incorrect advisory range affected his sentence.” Id. at 648. 

The district court primarily relied on the seriousness of Davis’s violations

when deciding his sentence, id. at 648-49, and “had ample independent bases

for imposing the sentence that it did, and Davis has cited no statements in

the record to indicate that the court . . . relied on the incorrect advisory range

in determining his sentence,” id. at 649. 

Moreover, we have found prong three not met in similar situations

where “although the revocation sentence resulted from a misapplication of the

Guidelines, the sentences imposed fell within the two-year statutory

maximum authorized upon revocation.” In United States v. Mitchell, 212 F. 5

United States v. Posey, 212 F. App’x 302, 303 (5th Cir. 2007) (affirming on plain-error

5

(continued...)

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App’x 319, 320 (5th Cir. 2007), we affirmed on plain-error review a statutory

maximum revocation sentence of 24 months even though the district court

had erroneously concluded that the defendant had committed a Grade A

violation when the violation was truly Grade B. The sentence fell within the

two-year statutory period, and the defendant had not shown that the court

would have imposed a lesser sentence but for the guideline miscalculation.

Here, the district court also “had ample independent bases for imposing

the sentence that it did.” Davis, 602 F.3d at 649. Burney violated the terms

of his release as soon as it began by using drugs, by refusing to report for

testing, by refusing to participate in counseling, and by being arrested for

possession of methamphetamine. Furthermore, as in Davis, nothing in the

record suggests that the court relied on the incorrect range of 24 months

when deciding the sentence. Because Burney’s 18-month sentence was less

than the statutory maximum of 24 months, and Burney has not shown that

the district court would have imposed a lesser sentence but for the

miscalculation, Burney has not demonstrated the error effected his

substantial rights.

Even if prong 3 were met, this case would fail under the fourth prong of

plain-error review. Despite the fact that the guideline recommendation for

Grade A here is 24 months, the district court sentenced Burney to only

18 months; the guideline range for a Grade B violation would be 12-18

months. Thus, the sentence originally given to Burney falls within the proper

range for Grade B. The error does not seriously affect the fairness, integrity,

or public reputation of judicial proceedings because, despite being sentenced

for the wrong offense level, Burney instead received a sentence appropriate

 (...continued)

5

review a statutory maximum revocation sentence of 24 months even though the district court

had erroneously concluded that the defendant had committed a Grade B violation).

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for his proper offense level. The fourth prong is not satisfied where the

sentence is within what is recommended by the guidelines.

In summary, we should review here only for plain error, and the plainerror requirements are not met, so the sentence should be affirmed.

I respectfully dissent.

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