### 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 5 TH C IR

. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED August 28, 2014

Lyle W. Cayce Clerk Case: 13-60708 Document: 00512749091 Page: 1 Date Filed: 08/28/2014No. 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 di strict 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 , 13 4 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
pre serve 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. Mondragon

Santiago , 564 F.3d 357, 360 (5th Cir. 2009) (internal quotatio n marks and citation omitted). While within

- guidelines sentences require little explanation, the district court must give a more deta iled 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 base d on factors in section 3553(a) must be. ”

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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 imprisonm ent 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 peri od of time. The district court’s statements were adequate to show that it considered the parties’ arguments and ha d a rea soned basis for exercising its own legal decision making autho rity. 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 no t 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 par ticular 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 f or the law or t he property of others. The district court did not abuse its discretion, much less commit plain error, in sentencing Burk

. T he judgment of the district court is AFFIRMED.

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