# United States Court **of Appeals**  **f or the Fifth Circuit** 

No. 20

- 10529

**United States of America,**
Plaintiff

— Appellee **,**

versus
**Richard Lee Burney,**
Defendant

— Appellant

**.**

Appeal from the United States District Court for the Northern District of Texas USDC No. 5:19

- CR

- 129

- 1

Before **King, Smith,** and **Haynes,** Circuit Judges

**. Jerry E. Smith,**  Circuit Judge **:**
Richard Burney claims that his sentence for wire fraud is substantively unreasonable because the district court improperly considered his socio

economic status. But the court considered only Burney ’ s good childhood and upbringing , not the objective criter ia that determine his current status in society. These factors are not part of Burney’s socioeconomic status , so w e affirm.

I. Burney pleaded guilty of wire fraud in violation of 18 U.S.C. § 1343. United States Court of Appeals Fifth Circuit 

### FILED March 29, 2021 Lyle W. Cayce Clerk Case: 20-10529 Document: 00515799445 Page: 1 Date Filed: 03/29/2021No. 20

- 10529

2 Based on the severity of the offense, Burney ’ s acceptance of responsibility, and his criminal history, the presentence investigation report calculated a guide line range of twelve to eighteen months. Burney asked for a sentence at the bottom of that range. The district court, however, believed that an upward variance was needed to comply with the purposes of punishment in 18 U.S.C. § 3553 (a) ,
so it sentenced Burney to sixty months. The court consid ered numerous fac

tors , including the seriousness of Burney ’ s offense, the vulnerability of some of hi s victims, that his criminal history points didn’t fully account for the severity of his criminal past , the failure of previous lenient sentences to deter Burney’s continued criminality , and the need to protect the public from any future crimes.

At issue i s an additional f actor the court considered

. It said , Something else about your history struck me here. I see a lot of defendants in this court who basically never had a chance. Both their parents abused them, things that I just won ’ t tell you, just awful, awful, awful things. Grew up in abject poverty, gre w up surrounded by violence, and so they

― you know, they either take solace in drugs or they resort to violence them

selves. And they ’ re accountable for it. We all make our own choices. But it ’ s understandable.
You didn ’ t have that kind of upbringing. Y ou should know better. Your father is a retired deputy sheriff. Your mother is a retired probation officer. You had a good childhood. Nobody is perfect. No childhood was perfect. But you had oppor tuni

ties that other people in this court often didn ’ t have, and I have taken that into consideration. Burney did not object to the court ’s considering those facts . He appeals his sentence as substantively unreasonable on the ground that that statement reflects the prohibited consider ation of his socioecono mic status. Case: 20-10529 Document: 00515799445 Page: 2 Date Filed: 03/29/2021No. 20

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3 II. When a defendant preserves his objection to the reasonableness of a sentence, review is “for an abuse of discretion, examining the totality of the circumstances.” United States v. Warren , 720 F.3d 321, 332 (5th Cir. 2013) (citation omitted ). But “[w]hen the defendant fails to bring a sufficient objec tion to the attention of the district court,” review is for plain error only. Id. at 326. Burney and the government agree that review is for plain error

. B ecause Burney cannot prevail even on abuse of discretion review, however, we will assume that is the proper standard. See United States v. Rodriguez , 523 F.3d 519, 525 (5th Cir. 2008). A sentence outside the guideline range is substantively unreasonable

“ where it (1) does not account for a factor that should have received signif i

cant weight, (2) gives significant weight to an irrelevant or improper factor, or (3) represents a clear error of judgment in balancing the sentencing fac

tors. ” United States v. Smith , 440 F.3d 704, 708 (5th Cir. 2006). Burney advances the second reason

.

“ It is well

- established that a defendant ’ s socio

- economic status is never relevant to sentencing. ” United States v. Chandler , 732 F.3d 434, 438 (5th Cir. 2013) (cleaned up). C onversely, “ highly relevant

— if not essential

— to the selection of an appropriate sentence is the possession of the fullest informa tion possible concerning the defendant ’ s life and character is

tics. ” Pepper v. United States , 562 U.S. 476, 488 (2011) (clea ned up) . Thus ,

“ [n]o limitation shall be placed on the information concerning the back

ground .

. . of a person convicted of an offense , ” 18 U.S.C. § 3661 , but the sentencing guidelines, at least, should be “ entirely neutral as to the .

. . socio

economic status of offenders, ” 28 U.S.C. § 994(d).

C ourts must therefore differentiate between facts about a defendant that comprise his socioeconomic status and those that make up his back

Case: 20-10529 Document: 00515799445 Page: 3 Date Filed: 03/29/2021No. 20

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4 ground. That is not always easy. 1 “‘ [S] ocioeconomic ’ status ref ers to ‘ an individual ’ s status in society as determined by objective criteria such as edu

cation, income, and employment; it does not refer to the particulars of an indi vidual life. ’” 2 The district court, in essence, considered Burney ’ s “ good childhood ” and upbringing in justifying the upward variance. It considered that he did not grow “ up in abject poverty ” or “ surrounded by violence, ” and it consid

ered his parents ’ occupations.

T h o se considerations do not constitute his socioeconomic statu s ; they are part of his background. A defendant’s childhood economic conditions, as opposed to his current ones, are generally not part of the defendant’s socio economic status

. 3 N or is considering the occupation of the defendant’s parents, as distingui shed from that of the defendant himself. To the contrary,

an “ unusually disadvantaged childhood ” has been noted as a potential miti

gating circumstance. Spears v. United States , 555 U.S. 261 , 263 (2009) (per curiam) ( cita tion omitted). And w e ’ ve approved sentences that we held ade

quately considered that miti gating factor. 4 Though it ’ s certainly more

1 See United States v. Peltier , 505 F.3d 389, 393 (5th Cir. 2007) (noting that the defendant’s financial resources and ability to get drug treatment were entwined), abrogated on other grounds by Holguin

- Hernandez , 140 S. Ct. 762, 766 (2020).

2 Aponte v. U.S. Parole Comm ’ n , No. 99

- 60775 , 2000 WL 992506 , at *2 n.3 (5th Cir. 2000) (per curiam) (quoting United States v. Lopez , 938 F.2d 1293, 1297 (D.C. Cir. 1991 )) (emphasis in original)

.

3 In United States v. Hatchett , 923 F.2d 369, 372, 375 (5th Cir. 1991), we held that the district court erred in considering the defendant’s “material advantages” while grow

ing up. But that was in the context of a young defendant still generally living with those advantages, not a grown adult far removed from them. Id. at 372.

4 See, e.g. , United States v . Duke , 788 F.3d 392, 398 (5th Cir. 2015) (per curiam); United States v. Minjarez , 667 F. App’x 144, 145

– 46 (5th Cir. 2016) (per curiam); United States v. Weathersby , 524 F. App ’ x 987, 989 (5th Cir. 2013) (per curiam). Case: 20-10529 Document: 00515799445 Page: 4 Date Filed: 03/29/2021No. 20

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5 unusual for a defendant ’ s good child hood to be considered an aggravating factor, th o se decisions still suggest that such considerations are pa rt of a defen dant ’ s background, not his socio economic status.

**AFFIRMED.** Case: 20-10529 Document: 00515799445 Page: 5 Date Filed: 03/29/2021