### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

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 fo llo win g th e r evo c atio n 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 i n p rison and a three-year term of supervised U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D August 15, 20 12 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. Case: 11-10670 Document: 00511958251 Page: 1 Date Filed: 08/15/2012No. 11-10670

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 posit ive for use of methamphetamines six times; (2) failing to report for urinalysis t w i ce; (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 repo r t (“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 § 7 B 1 .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 allegati o n
. D e s pite 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 d i d not modify its adoption of the SRVR, and proceeded to find that Burne y violated, among other conditions, “[s] t a n d a rd 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 r a i s e d tw o iss ues on app eal. He argued , fir st , that the dis tri ct cour t 1
err oneo usl y reli ed on his having com mi tte d a Gr ade A vio l a t i o n a ft er the governm ent dis mi ss ed that allegat ion. Burney als o argued that his se nten ce wa s in plai n err or beca use the dis tri ct cour t err oneo usl y cons ide red 18 U. S. C. § 3553( a)( 2)(A) fac tor s. We do not reac h this
se c ond iss ue beca use we vacat e the se nten ce and rem and for res ente ncing on the bas is of 2 Case: 11-10670 Document: 00511958251 Page: 2 Date Filed: 08/15/2012No. 11-10670 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. 201 1). 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 pl ainly u nr e a s o n ab le standard, we apply a bifurcated review process. I d

. ; s e e also Gall v. United

Burney’ s fir star gume nt.

At his se nten cing hearing, wh en the dis tri ct cour t ado pt ed the SRVR, Burn e y ’ s 2
couns el inte rjec ted , objec ting that “th e guidel ine range w ouldbe diff ere nt si nce thecrim inal violat ion wa s dism iss ed. ” The dis tri ct co urtackn ow led ged Burne y’s object ion, saying, “[y] es , sir .” When a “d e f

e n d a nt has fai led to mak e his objec tio n to the guide lines calc ulati on suf fic ient ly clea r, the iss ue is cons ide red for fei ted , and we revie w only for plai n err or. ” Uni ted States v. Chav ez -H

ern andez , 671 F.3d 494, 497 (5t h Cir. 2012)

. “The st andar d

. . . shi eld s this
cour t fr om rulin g o n i s s u e s that have been ins uff icie ntly vett ed below .” Id. Object ions mus t be rais ed below to plac e t he dis tri ct cour t on noti ce aboutp ote ntialis sue s forap pea l, and to give the dis tri c t c o u r t a n opp ort unity to “cl arif [y] or, if nece ss ary, cor rec t[] its elf.” Uni ted States v. He rna ndez -M ar tinez , 485 F.3d 270, 272- 273 (5t h Cir. 2007)

. There for e, objec tion s th at ar e t o o v a gue are revie we d on app eal for plai n err or beca use they canno t “ale rt the cour t to the legal argum ent he now pr es ents .” Id. at 272. B u r ney’s objec tio n wa s not too vague. Altho ugh he did not sp ecif ical ly ref

er to the me tham phet ami ne char ge as a Clas s A violat ion, he sp ecif ical ly info rm ed the cour t that the SRVR’s guide line range rec om me ndat ion sho uld be changed beca use the governm ent dis mi ss ed the cri mi nal violat ion. Of all Burney’ s violat ions , only pos se ss ion of me tham phet ami ne res ulte d in a c r i m inal char ge, and it wa s the only violat ion that the governm ent dis mi ss ed and the only violat ion that the S RVR i d enti fie d as being a Clas s A violat ion. Mo reo ver, the dis tri ct cour t, by sayin g “yes , sir ,” indi cat ed to Burney that it unde rs too d the objec tio n. The dis tri ct cour t ther efo re wa s plac ed on suf fic ient noti ce aboutt his is sueas t o p res erve it forap pea l. 3 Case: 11-10670 Document: 00511958251 Page: 3 Date Filed: 08/15/2012No. 11-10670

States , 552 U.S. 38, 51 (2007) (establishing a bifurcated proce s s for reviewing sentences). We first e v aluate whether the district court procedurally erred; if there is no error, we then consider t h e s ubstantive reasonableness of the

s e nt e nc e i m p o s e d under an abuse-of-discretion standard. Miller , 643 F

. 3 d at 8 4 3

. Significant procedural errors i n c l u d e “failing to calculate (or improperly calculating) the Guidelines range.” G a l l , 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. ” U n ited 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 respons ib l e 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 th e p ossession charge and therefore warranted a different guideline range. The district court then noted that “[t]he Chapter 7 policy s t a tements require that the Court revoke supervision for a G r a de A violation.” The government concedes that the district court err e d i n concluding that Burney co m m i t t ed 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 er ror 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 senten c e and that advisory sentence did not directly ‘result’ from any Guideline error.” United States v. Tzep-Mejia , 461 F.3d 522, 526 (5th Cir. 200 6). However, a below-Guideline or non-Guideline sentence does not necessarily render harmless an i m p ro p er 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 G u i d elines calculation may still taint th e non-Guidelines sentence. For instance, the district court might settle upon a p a r t icular 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 t h e error nevertheless is not harmless because the district c o u r t w ould 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 G r a d e A violation in holding that revocation was mand atory, 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. Th e gove rnment 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 cour t th e refore did not rely on that Grade A violation in sentencing Burney. Indeed, the district court did s p e c i f ically 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 violation

SSif 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 understood

SSgiven what words the attorney used and what information was on the record

SSthe 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

Uni ted States v. Chav ez -H ern andez , 671 F.3d 494, 497 (5t h Cir. 2012) (“ The pur pos e 1 of plai n err or revie w is to ins till in liti gator s the im por tanc e of

. . . as nece ss ary, clar if yi ng iss ues to th[ e] cour t. Time ly, ade quate objec tio ns allow the tri al cour t to r u l e i n the fir st ins tanc e and, if neces sar y, cor rec t its elf wi thou t sp aw ning an app eal. This st andar d usua lly shi eld s the dis tri ct cour t fr om rever sal beca use of err or that wa s unw itt ingly com mi tte d, beca useno t brou ght to its at tent ion” ). 8 Case: 11-10670 Document: 00511958251 Page: 8 Date Filed: 08/15/2012No. 11-10670

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 outthat 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 court

SSpreserving the truth-seeking function it achieves

SSby 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

Thatis , the cour t thou ght couns el wa s objec ting to the cri mi nal his tor y, thou ght he 2
wa s me rely requ es ting a dow nw ard dep art ure beca use Burney is ch arged wi th few er violat ions than origi nally inclu dedint he SRVR, or so me thing els e e ntir ely.
The rem aining violat ions eas ily qualif y as Gr ade B, wh ich als o pr ovide s for man dat ory 3
revoc atio n. Penso n v. Oh io , 488 U. S. 75, 84 (198 8) (“ The par amo unt im por tanc e of vigorou s rep re- 4
se ntat ion fol low s fr om the natur e of our adver sar ial sys tem of just ice. This sys tem is pr em ise d
on the we ll- tes ted pr incip le that tru th- as we ll as fai rnes s- is bes t dis cover ed by pow erf ul st ateme nts onbo th sid es of t he ques tio n.” (inte rnal quot atio n m ark s om itt ed) ).

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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 courts

SS as here

SScircumvent 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 performance

SSas our precedent claims it does

SSthen 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.

10 Case: 11-10670 Document: 00511958251 Page: 10 Date Filed: 08/15/2012No. 11-10670 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. 2 009). In United States v. Davis , 602 F.3d 643, 646 (5th Cir. 201 0), 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

Uni ted States v. Pose

y , 212 F. App ’x 302, 303 (5t h Cir. 2007) (af fir mi ng on plai n-e rro r 5 (c onti nued

.. .)
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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

(

.. .c onti nued) 5 revie w a st atut ory maxim um revoc atio n se nten ce of 24 mo nths even thou gh the dis tri ct cour t had err oneo usl y co nclud ed thatt he def enda nt had com mi tte d a G rad e B violat ion)

. 12 Case: 11-10670 Document: 00511958251 Page: 12 Date Filed: 08/15/2012No. 11-10670

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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