IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-60708

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

KIMBERLY CRAY BURK,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Mississippi

USDC No. 3:13-CR-16-1

Before BENAVIDES, SOUTHWICK, and COSTA, Circuit Judges. 

PER CURIAM:*

Kimberly Cray Burk appeals the 96-month sentence imposed for her 

conviction for wire fraud. The sentence constituted an upward variance from 

her guidelines range of 37 to 46 months of imprisonment. Burk argues that 

the district court committed procedural error by failing to adequately explain 

its reasons for the sentence and that the sentence is substantively 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

August 28, 2014

Lyle W. Cayce

Clerk

 

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No. 13-60708

unreasonable because it was greater than necessary to satisfy the sentencing 

goals under 18 U.S.C. § 3553(a). 

Because Burk did not object on these grounds in the district court, her 

arguments are reviewed under the plain error standard. See United States v. 

Chon, 713 F.3d 812, 823 (5th Cir.), cert. denied, 134 S. Ct. 255 (2013); United 

States v. Heard, 709 F.3d 413, 425 (5th Cir.), cert. denied, 134 S. Ct. 470 (2013). 

Burk concedes that this court has applied the plain error standard where no 

objection to the substantive reasonableness of a sentence was made, but she 

wishes to preserve for further review whether such an objection is required to 

preserve the error.

To demonstrate plain error, Burk must show a forfeited error that is 

clear or obvious and that affects her substantial rights. See Chon, 713 F.3d at 

823. If she makes such a showing, this court has the discretion to correct the 

error but only if it seriously affects the fairness, integrity, or public reputation 

of judicial proceedings. See id.

Burk argues that the district court failed to give adequate reasons for 

the sentence because it never provided an explanation for the rejection of her 

mitigation arguments, including her history of an abusive marriage, struggles 

with depression and anxiety, and abuse of medications. “The district court 

must adequately explain the sentence to allow for meaningful appellate review 

and to promote the perception of fair sentencing.” United States v. MondragonSantiago, 564 F.3d 357, 360 (5th Cir. 2009) (internal quotation marks and 

citation omitted). While within-guidelines sentences require little explanation, 

the district court must give a more detailed explanation for a non-guidelines 

sentence. United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). “The 

farther a sentence varies from the applicable Guideline sentence, the more 

compelling the justification based on factors in section 3553(a) must be.” 

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No. 13-60708

United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006) (internal quotation 

marks and citation omitted).

The district court heard Burk’s arguments for a lesser sentence but 

indicated that an above-guidelines sentence of 96 months of imprisonment was 

appropriate in light of Burk’s prior convictions for similar conduct, her 

commission of the instant offense while on bond awaiting sentencing in a prior 

fraud case, and the fact that her criminal conduct in this case continued over 

a prolonged period of time. The district court’s statements were adequate to 

show that it considered the parties’ arguments and had a reasoned basis for 

exercising its own legal decisionmaking authority. See Rita v. United States, 

551 U.S. 338, 356 (2007). Burk has not shown error, much less plain error, 

with respect to the adequacy of the district court’s explanation for the sentence.

With respect to substantive reasonableness, Burk argues that the 

district court gave excessive weight to her criminal history and did not account 

for the fact that she had endured an abusive relationship, suffered from 

depression and anxiety, and abused medications. “[T]he sentencing judge is in 

a superior position to find facts and judge their import under § 3553(a) with 

respect to a particular defendant.” United States v. Campos-Maldonado, 531 

F.3d 337, 339 (5th Cir. 2008). The district court reasoned that Burk’s history 

of similar convictions and the circumstances of the instant offense showed that 

Burk had no respect for the law or the property of others. The district court 

did not abuse its discretion, much less commit plain error, in sentencing Burk.

The judgment of the district court is AFFIRMED.

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