     Case: 11-10670     Document: 00511958251         Page: 1     Date Filed: 08/15/2012




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                          August 15, 2012

                                       No. 11-10670                        Lyle W. Cayce
                                                                                Clerk

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

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                                       No. 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 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


       1
          Burney raised two issues on appeal. He argued, first, that the district court
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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                                        No. 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. 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.
       2
          At his sentencing hearing, when the district court adopted the SRVR, Burney’s
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 non-
      Guidelines 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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                                No. 11-10670

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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                                     No. 11-10670

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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                                        No. 11-10670

       One cannot distill the requirements for preserving objections into one-
size-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.1 We should not be asking whether
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




       1
         United States v. Chavez-Hernandez, 671 F.3d 494, 497 (5th Cir. 2012) (“The purpose
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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                                        No. 11-10670

not realize Burney was objecting to the grade,2 (2) misspoke and meant to say
Grade B,3 or (3) overruled the objection.
       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 miscommuni-
cation. 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

       2
        That is, the court thought counsel was objecting to the criminal history, thought he
was merely requesting a downward departure because Burney is charged with fewer violations
than originally included in the SRVR, or something else entirely.
       3
        The remaining violations easily qualify as Grade B, which also provides for mandatory
revocation.
       4
        Penson v. Ohio, 488 U.S. 75, 84 (1988) (“The paramount importance of vigorous repre-
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 state-
ments on both sides of the question.” (internal quotation marks omitted)).

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                                  No. 11-10670

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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                                         No. 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. 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.”5 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
                                                                                    (continued...)

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                                     No. 11-10670

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


      5
        (...continued)
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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                                 No. 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 plain-
error requirements are not met, so the sentence should be affirmed.
I respectfully dissent.




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