X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.

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 socioeconomic status. But the court considered only Burney’s good childhood and upbringing, not the objective criteria that determine his current status in society. These factors are not part of Burney’s socioeconomic status, so we affirm. I. Burney pleaded guilty of wire fraud in violation of 18 U.S.C. § 1343. Based on the severity of the offense, Burney’s acceptance of responsibility, and his criminal history, the presentence investigation report calculated a guideline 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 considered numerous factors, including the seriousness of Burney’s offense, the vulnerability of some of his 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 is an additional factor 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, grew up surrounded by violence, and so theyyou know, they either take solace in drugs or they resort to violence themselves. And they’re accountable for it. We all make our own choices. But it’s understandable. You didn’t have that kind of upbringing. You 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 opportunities 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 consideration of his socioeconomic status. 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 objection 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. Because 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 significant weight, (2) gives significant weight to an irrelevant or improper factor, or (3) represents a clear error of judgment in balancing the sentencing factors.” 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). Conversely, “highly relevant—if not essential—to the selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant’s life and characteristics.” Pepper v. United States, 562 U.S. 476, 488 (2011) (cleaned up). Thus, “[n]o limitation shall be placed on the information concerning the background . . . 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 . . . socioeconomic status of offenders,” 28 U.S.C. § 994(d). Courts must therefore differentiate between facts about a defendant that comprise his socioeconomic status and those that make up his background. That is not always easy.[1] “‘[S]ocioeconomic’ status refers to ‘an individual’s status in society as determined by objective criteria such as education, income, and employment; it does not refer to the particulars of an individual 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 considered his parents’ occupations. Those considerations do not constitute his socioeconomic status; 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 socioeconomic status.[3] Nor is considering the occupation of the defendant’s parents, as distinguished from that of the defendant himself. To the contrary, an “unusually disadvantaged childhood” has been noted as a potential mitigating circumstance. Spears v. United States, 555 U.S. 261, 263 (2009) (per curiam) (citation omitted). And we’ve approved sentences that we held adequately considered that mitigating factor.[4] Though it’s certainly more unusual for a defendant’s good childhood to be considered an aggravating factor, those decisions still suggest that such considerations are part of a defendant’s background, not his socioeconomic status. AFFIRMED.

 
Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.

More From ALM

With this subscription you will receive unlimited access to high quality, online, on-demand premium content from well-respected faculty in the legal industry. This is perfect for attorneys licensed in multiple jurisdictions or for attorneys that have fulfilled their CLE requirement but need to access resourceful information for their practice areas.
View Now
Our Team Account subscription service is for legal teams of four or more attorneys. Each attorney is granted unlimited access to high quality, on-demand premium content from well-respected faculty in the legal industry along with administrative access to easily manage CLE for the entire team.
View Now
Gain access to some of the most knowledgeable and experienced attorneys with our 2 bundle options! Our Compliance bundles are curated by CLE Counselors and include current legal topics and challenges within the industry. Our second option allows you to build your bundle and strategically select the content that pertains to your needs. Both options are priced the same.
View Now
September 18, 2024 - September 19, 2024
Dallas, TX

Join General Counsel and Senior Legal Leaders at the Premier Forum Designed For and by General Counsel from Fortune 1000 Companies


Learn More
October 15, 2024
Dallas, TX

The Texas Lawyer honors attorneys and judges who have made a remarkable difference in the legal profession in Texas.


Learn More
April 08, 2025 - April 09, 2025
Chicago, IL

Join General Counsel and Senior Legal Leaders at the Premier Forum Designed For and by General Counsel from Fortune 1000 Companies


Learn More

Prominent mid-Atlantic law firm with multiple regional office locations seeks a legal practice assistant (LPA) for our Boca Raton, FL. Offic...


Apply Now ›

Florida International University College of Law, South Florida s public law school, invites applicants for a contract position in Legal Skil...


Apply Now ›

LEGAL PRACTICE ASSISTANT- NEW JERSEY OFFICE: Prominent mid-Atlantic law firm with multiple regional office locations seeks a Legal Practice...


Apply Now ›