United States v. Burney, 992 F.3d 398

Burney pleaded guilty to wire fraud; PSR calculated a Guidelines range of 12–18 months based on offense, acceptance of responsibility, and criminal history.
At sentencing the district court varied upward and imposed 60 months, citing offense seriousness, victim vulnerability, unaccounted aspects of Burney’s criminal history, prior leniency’s failure to deter, and public protection.
The court additionally remarked that Burney had a comparatively good childhood and upbringing (parents in law enforcement; not raised in poverty or violence) and said it took that into account.
Burney did not object at sentencing to that comment and now appeals, arguing the court improperly considered his socioeconomic status, rendering the variance substantively unreasonable.
The government and Burney agreed review is for plain error, but the Fifth Circuit assumed abuse-of-discretion review because Burney could not prevail even under that standard.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the judge’s comment about Burney’s good upbringing constituted impermissible consideration of socioeconomic status rendering the 60‑month variance substantively unreasonable	The court considered background (childhood/upbringing), which is relevant and permissible	The judge relied on Burney’s socioeconomic status (improper) to justify an aggravated variance	Court held the remarks referred to upbringing/background, not current socioeconomic status, so consideration was permissible; affirmance
Standard of review for the sentencing challenge (preservation/plain error)	Review is plain error because Burney didn’t object at sentencing	Burney contends error regardless; asks reversal	Court noted plain‑error applies but assumed abuse‑of‑discretion and affirmed because no improper consideration occurred

United States v. Warren, 720 F.3d 321 (5th Cir. 2013) (preservation and review standards for sentencing challenges)
United States v. Rodriguez, 523 F.3d 519 (5th Cir. 2008) (court may assume a more favorable standard when defendant cannot prevail)
United States v. Smith, 440 F.3d 704 (5th Cir. 2006) (criteria for substantive unreasonableness of sentences)
United States v. Chandler, 732 F.3d 434 (5th Cir. 2013) (a defendant’s socioeconomic status is never relevant to sentencing)
Pepper v. United States, 562 U.S. 476 (2011) (sentencing courts may consider fullest information concerning defendant’s life and characteristics)
United States v. Peltier, 505 F.3d 389 (5th Cir. 2007) (socioeconomic resources can be intertwined with other factors)
United States v. Hatchett, 923 F.2d 369 (5th Cir. 1991) (error in considering material advantages for a young defendant still living with them)
Spears v. United States, 555 U.S. 261 (2009) (an unusually disadvantaged childhood can be a mitigating circumstance)
United States v. Duke, 788 F.3d 392 (5th Cir. 2015) (affirming consideration of background as mitigating/mitigation-related)