                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 14a0274n.06

                                        Case No. 13-5506
                                                                                       FILED
                                                                                  Apr 14, 2014
                          UNITED STATES COURT OF APPEALS                     DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                             )
                                                      )
       Plaintiff-Appellee,                            )
                                                      )        ON APPEAL FROM THE
v.                                                    )        UNITED STATES DISTRICT
                                                      )        COURT FOR THE MIDDLE
JAMES BAKER,                                          )        DISTRICT OF TENNESSEE
                                                      )
       Defendant-Appellant.                           )
                                                      )
                                                      )                             OPINION


BEFORE:        COLE and ROGERS, Circuit Judges; HOOD, District Judge.*

       COLE, Circuit Judge. After a three-day jury trial, Defendant-Appellant James Baker was

convicted of being a felon in possession of a firearm, possession of crack cocaine with intent to

distribute, and carrying a firearm during and in relation to a drug-trafficking offense. Because of

Baker’s substantial criminal history, the district court applied a career offender enhancement and

an Armed Career Criminal enhancement, resulting in a Sentencing Guidelines range of thirty-

five years to life. Though the court ultimately imposed a twenty-three year sentence—twelve

years below the Guidelines range—Baker appeals his convictions and sentence.              For the

following reasons, we affirm the judgment of the district court.


       *
       The Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
Case No. 13-5506, United States v. Baker




                                      I. BACKGROUND

A. Factual Background

       In 2008, Memphis Police Department Officers Mark Reese and Dennis Rodgers were

patrolling Northside Manor Apartments in an area known for drug activity and gang violence.

While monitoring the area, the officers observed James Baker approach a parked car and engage

in a hand-to-hand transaction with the occupants inside the vehicle. After this transaction—

which appeared to be “some kind of narcotic drug sale”—had been completed, the vehicle left

the apartment parking lot. Officer Reese then called a nearby marked police unit to stop the car.

As the officers attempted to leave the apartment complex to assist with the stop, they observed

Baker approach a second vehicle with what appeared to be crack cocaine in his hand and a gun in

his back right pocket. When Reese realized that Baker had a weapon, Reese instructed the police

unit to abandon the stop and come to the apartment complex for back-up. But before that unit

reached the complex, Reese approached Baker from behind and seized the firearm from his

back-pocket, while Rodgers made contact with the driver of the car. According to Reese, the

first thing Baker said was “I have a gun in my back pocket.” Trial testimony later established

that the plastic baggie in Baker’s hand contained crack cocaine.

       Baker was indicted for being a felon in possession of a firearm in violation of 18 U.S.C.

§ 922(g)(1), possession with intent to distribute cocaine base in violation of 21 U.S.C.

§ 841(1)(1), and carrying a firearm during and in relation to a drug-trafficking offense in

violation of 18 U.S.C. § 924(c). A jury convicted Baker on each count.




                                              -2-
Case No. 13-5506, United States v. Baker


B. Procedural Background

       1. Motion to Suppress

       Before trial, Baker moved to suppress the firearm and drugs recovered during his arrest

on the basis that the officers lacked probable cause to detain him and that the evidence was

seized in violation of his Fourth Amendment rights. A magistrate judge conducted a hearing at

which Reese testified that he observed Baker, from about thirty to forty feet away, make a hand-

to-hand transaction with occupants inside the first vehicle. As Baker approached the second car,

Reese observed drugs in Baker’s hand and a firearm in his back-pocket from a distance of eight

feet. Attempting to discredit Officer Reese’s account, Baker testified that on the day of his

arrest, he was wearing a shirt that covered his back pockets, implying that Reese did not see a

gun in his pocket. Baker, however, did not dispute that he possessed drugs and a firearm when

he was arrested. Based on the testimony presented, the magistrate judge recommended denial of

the motion to suppress.

       Over Baker’s       objections,   the district   court adopted the magistrate judge’s

recommendation, finding that there was probable cause for the arrest. Accepting Reese’s overall

testimony, the district court concluded that the best explanation for his request for back-up was

that Baker was armed and in the process of engaging in a drug transaction. Ultimately, the

district court credited Officer Reese’s testimony over Baker’s and denied the motion.

       2. Motion to Reopen Suppression Hearing

       Over a year after the suppression hearing, Baker moved to reopen and reconsider the

motion to suppress based on “newly discovered evidence.” In the motion, Baker indicated that

he had been appointed new counsel who obtained evidence in response to Fed. R. Crim. P. 17

subpoenas, which would “call[] into question” the district court’s decision to deny the motion.



                                               -3-
Case No. 13-5506, United States v. Baker


In addition, Baker identified two eyewitnesses who observed the events before his arrest and

Baker argued that these witnesses would also cast doubt on the court’s ruling. Without offering

further details, Baker proposed that the court reopen the hearing on the morning of the first day

of trial. The government opposed Baker’s request.

       In denying the motion to reopen, the district court concluded that Baker had not

demonstrated that the evidence he wished to present was “unavailable or unobtainable at the time

of the hearing;” he did not reveal the “identity of the eye-witnesses [or] the character of their

testimony;” and he “fail[ed] to identify specific evidence” that would undermine the court’s

factual findings or legal analysis. According to the court, reopening the hearing would also

prejudice the government as it could not be expected to “marshal its evidence and prepare its

arguments in less than a week or to address issues that were heard and decided a year ago.”

Beyond this, the court noted that Baker’s motion was untimely because he filed it after the

deadline provided in the court’s scheduling order.

       Without leave of court, Baker supplemented the record by filing a reply to the

government’s motion in opposition, where he described in greater detail the nature of the new

evidence he wished to present. Specifically, after he filed the motion to reopen, the government

produced Brady, Giglio, and Jencks Act material, including a firearms screening report. This

report, prepared by Deputy Patrick Deane, summarized Baker’s arrest and indicated that Reese

observed a gun and crack cocaine from 400 to 500 feet away, using binoculars. But at the

suppression hearing, Reese testified that he observed a gun in Baker’s pocket and drugs in his

hand from eight feet away. According to Baker, this inconsistency undermined the district

court’s credibility determination and warranted reopening of the hearing.




                                              -4-
Case No. 13-5506, United States v. Baker


        The district court disagreed and again denied the motion to reopen, cautioning that

“[c]ontinued litigation surrounding [this issue] threatens the finality afforded litigants by pre-trial

motions.” Because Baker filed the reply without leave of court, the district court struck it from

the record. But the court determined that even if the reply had not been struck, the evidence was

insufficient to support reconsideration as it would not have changed the outcome of the hearing.

        At sentencing, the district court adopted the facts set forth in Baker’s presentence

investigation report. Based on his prior convictions, Baker qualified as a career offender under

U.S.S.G. § 4B1.1(b)(1) and an Armed Career Criminal under § 4B1.4(b)(3)(B), which resulted

in a Guidelines range of thirty-five years to life. After examining the factors in 18 U.S.C.

§ 3553(a), the court imposed a twenty-three year sentence. Baker timely appealed. We have

jurisdiction under 28 U.S.C. § 1291, which grants this court jurisdiction over final decisions of

the district court.

                                          II. ANALYSIS

A. Motion to Reopen

        In Baker’s first assignment of error, he argues the district court should have granted his

motion to reopen the suppression hearing. In his view, the basis for reopening the hearing stems

from conflicting accounts regarding the distance from which Officer Reese observed the gun;

while Reese testified that he saw the firearm in Baker’s pocket from eight feet away, the firearm

screening report indicated that Reese was much further away.

        We review a district court’s refusal to reopen a suppression hearing for abuse of

discretion. United States v. Lawrence, 308 F.3d 623, 627 (6th Cir. 2002). A district court abuses

its discretion when the reviewing court is “firmly convinced that a mistake has been made.”

United States v. Isaiah, 434 F.3d 513, 519 (6th Cir. 2006). Though a court may reopen a




                                                 -5-
Case No. 13-5506, United States v. Baker


hearing, it should be “extremely reluctant” to do so. See United States v. Carter, 374 F.3d 399,

405 (6th Cir. 2004), vacated on other grounds, 543 U.S. 1111 (2005). Whether a district court

has abused its discretion in denying a motion to reopen depends on “the timeliness of the motion,

the character of the proposed testimony, the effect of granting the motion, and, most importantly,

whether the opposing party will be prejudiced by reopening the record.” United States v.

Holland, 522 F. App’x 265, 270 (6th Cir. 2013).

       With respect to timing, Baker filed the motion a month after the deadline provided in the

district court’s scheduling order and only a few days before trial, obligating the government to

prepare its witnesses and formulate its strategy in less than a week. The court considered

Baker’s request to conduct the hearing on the morning of trial to be impractical as such a hearing

could not provide “reasoned consideration [of] the facts and law . . . on the morning of trial.”

Moreover, reopening the hearing over a year after the initial proceeding would have prejudiced

the government by requiring it to address arguments decided a year earlier.

       The district court also examined the nature of Baker’s “newly discovered evidence” and

concluded that neither the proposed witness testimony nor the screening report would have

changed the result of the suppression hearing, which concerned whether the officers had

probable cause to make an arrest.       Baker contends that the screening report would have

“shattered” Officer Reese’s credibility, but at most the report created some uncertainty regarding

the precise distance from which Reese initially observed Baker. Regardless of whether the

actual distance was 400 to 500 feet, as documented in the screening report or eight feet, as

Officer Reese testified—the report does not negate that Baker admitted he had a firearm or that

the officers witnessed a hand-to-hand transaction and observed a firearm in Baker’s pocket

before arresting him.




                                              -6-
Case No. 13-5506, United States v. Baker


         Moreover, the reliability of the screening report itself is questionable. Although Deputy

Deane prepared the document, at trial, Deane could not state affirmatively whether Officer Reese

or Rodgers provided the 400 to 500 feet approximation. Reese’s testimony cast further doubt on

the report’s accuracy because Reese never recalled stating that he was 400 to 500 feet away from

Baker.    Therefore, even if the district court had reopened the suppression hearing, it is

implausible that the report would have “shattered,” much less diminished, Reese’s credibility. In

our view, the screening report would not have changed the court’s ruling on the motion to

suppress. Thus, the court did not commit “a clear error of judgment” in denying the motion to

reopen. Isaiah, 434 F.3d at 519.

B. Speedy Trial Claim

         The district court granted approximately sixteen ends-of-justice continuances in this case.

Although fourteen were made at Baker’s behest, he moved to dismiss the indictment with

prejudice, claiming that the delay in bringing him to trial violated the Speedy Trial Act. In light

of Baker’s affirmative requests for continuances, the district court held that Baker “forfeit[ed]”

the argument that his statutory right to a speedy trial had been violated. We agree.

         Normally, we review a district court’s application of the Speedy Trial Act de novo.

United States v. Gardner, 488 F.3d 700, 717 (6th Cir. 2007). However, we review for abuse of

discretion a district court’s determination that a delay satisfies the ends-of-justice exception. See

United States v. Howard, 218 F.3d 556, 563 (6th Cir. 2000); United States v. Stewart, 628 F.3d

246, 253 (6th Cir. 2010); (“The district court has wide latitude in deciding how to exercise its

discretion in applying the ends-of-justice provision of the Speedy Trial Act.”). To reverse the

district court, Baker must demonstrate that the continuances prejudiced his defense. Gardner,

488 F.3d at 718.




                                                -7-
Case No. 13-5506, United States v. Baker


       Under the Speedy Trial Act, a defendant’s trial must begin “within 70 days after he is

charged or makes an initial appearance, whichever is later, . . . and entitles [the defendant] to

dismissal of the charges if that deadline is not met.” Bloate v. United States, 559 U.S. 196, 198–

99 (2010) (citing 18 U.S.C. §§ 3161(c)(1), 3162(a)(2)). Certain periods of delay, however, are

not counted toward the speedy-trial clock.         For example, the ends-of-justice continuance,

applicable here, excepts any delay “based upon a judge’s finding that the ‘ends of justice’

outweigh the interests of the public and the defendant in a speedy trial.” Gardner, 488 F.3d at

718; see also United States v. Cianciola, 920 F.2d 1295, 1298 (6th Cir. 1990). The district court

must state “either orally or in writing, its reasons for finding that the ends of justice outweigh the

best interests of the public and the defendant in a speedy trial.” Gardner, 488 F.3d at 718. If the

court does not provide sufficient reasons for granting a continuance, “the resulting delay is not

excludable.”    Id.   The court must articulate its reasons for granting an ends-of-justice

continuance “no later than the ruling on the defendant’s motion to dismiss on Speedy Trial Act

grounds” as long as the court relied on those reasons when it granted the continuance. United

States v. Stone, 461 F. App’x 461, 464 (6th Cir. 2012); United States v. Guimond, 2000 WL

92268, No. 98-5916, at *4 (6th Cir. Jan. 19, 2000).

       The Speedy Trial Act identifies permissible reasons for granting an ends-of-justice

continuance, including the “effective preparation” of counsel. 18 U.S.C. § 3161(h)(8)(B)(iv). A

court may not, however, consider the “general congestion of the court’s calendar, or the

Government’s lack of diligent preparation or failure to obtain available witnesses.” United

States v. Monger, 879 F.2d 218, 221 (6th Cir. 1989) (citing 18 U.S.C. § 3161(h)(7)(C)).

Importantly, if a defendant consents to a delay or continuance, he waives any Speedy Trial Act

objection. United States v. White, 985 F.2d 271, 275 n.1 (6th Cir. 1993).




                                                -8-
Case No. 13-5506, United States v. Baker


       To determine whether the Act has been violated, we must examine whether there were

more than seventy non-excludable days between Baker’s first appearance on April 9, 2009, and

when he moved to dismiss on speedy-trial grounds on November 2, 2010. There were, at most,

forty-seven non-excludable days during the relevant period; therefore, the time limits set by the

Speedy Trial Act were not exceeded.

       The district court properly excluded May 22, 2009, through September 17, 2010, from

the speedy trial calculation because Baker requested twelve continuances covering this period.

Where, as here, a defendant requests or consents to a continuance, he may not complain about

the exclusion of time from the speedy trial clock. Howard, 218 F.3d at 562 (“Because [the

defendant] requested this continuance, he is barred from arguing that [the continuance] was not

in the interests of justice.”); United States v. Monroe, 833 F.2d 95, 99 (6th Cir. 1987) (same);

Guimond, 2000 WL 92268, at *4 (holding that because the defendant requested a continuance

attributable to the disposition of the motion to suppress, the district court correctly denied

defendant’s motion to dismiss the indictment). While Baker concedes that a defendant’s consent

to a continuance “waive[s] objections” to the Speedy Trial Act, he maintains that a court must

still consider the statutory factors before granting a continuance. Here, the district court fulfilled

its obligations under the Act.

       The court granted a continuance from August 27, 2010, through September 24, 2010,

because it had not yet received a ruling from the magistrate judge on the pending motion to

suppress. When the magistrate judge issued her recommendation on September 13, 2010, “a

new period of excludable delay” began and continued until the parties filed their objections.

United States v. Andress, 943 F.2d 622, 626 (6th Cir. 1991). Once the district court received the

parties’ objections, it had thirty days to keep the motion under advisement. Id.; see 18 U.S.C.




                                                -9-
Case No. 13-5506, United States v. Baker


§ 3161(h)(1)(J). The government filed its objections on October 4, 2010; therefore, the period

from October 4, 2010, to November 2, 2010—the date Baker moved to dismiss—is excludable

delay because the court had thirty days to consider the pending motion. Because Baker has not

established that there were more than seventy non-excludable days between April 9, 2009, and

November 2, 2010, his speedy trial claim fails.

       Apart from the district court’s allegedly improper calculations under the Act, Baker

argues that the court failed to explain sufficiently why it granted the ends-of-justice

continuances. As provided in the orders, the court indicated that “the interests of justice in

allowing additional time to prepare outweigh the need for a speedy trial.” According to Baker,

the court’s explanations were mere “conclusions, not reasons,” and that its lack of specificity was

insufficient under the Act. Admittedly, the district court’s orders were short and formulaic, but it

was not required to provide a lengthy explanation.        The court satisfied the ends-of-justice

requirements because it tracked the language of the statute and granted the motions to continue

to give the defense additional time to prepare. See United States v. Jordan, 544 F.3d 656, 666

(6th Cir. 2008); see also United States v. Thomas, 272 F. App’x 479, 482, 484 (6th Cir. 2008)

(concluding that the district court’s “laconic and formulaic orders” technically complied with

Sixth Circuit precedent).

       In a final attempt to establish a Speedy Trial Act violation, Baker argues that without an

“affirmative showing on the record” that he personally consented to the continuances, he is not

bound by his lawyer’s requests for additional time. But the ends-of-justice continuance “does

not require a defendant’s consent,” and Baker’s argument to the contrary is unavailing. United

States v. Sobh, 571 F.3d 600, 603 (6th Cir. 2009); see also Stewart, 628 F.3d at 254. (“[E]ven

though [defendant] did not provide his consent, the district court acted within its wide range of




                                               - 10 -
Case No. 13-5506, United States v. Baker


discretion in deciding to grant the motion for a continuance that was filed by [the defendant’s]

attorney.”).

       As to prejudice, Baker has not alleged, much less demonstrated actual prejudice resulting

from the district court’s decision to grant the continuances.     Accordingly, since the court

provided permissible reasons for granting the ends-of-justice continuances—which Baker

affirmatively requested—the court did not abuse its discretion.

C. Alleged Discovery Violations

       At trial, defense counsel’s theory was that the government inadequately investigated the

case because it did not conduct a trace on the firearm, which would have revealed who originally

purchased the weapon. Assuming a trace had not been conducted, defense counsel suggested to

the jury that the firearm seized during Baker’s arrest was a police-issued weapon that the

arresting officers had planted. Defense counsel supported this theory using the testimony of the

government’s firearm expert, Special Agent Benny Allen of the Bureau of Alcohol, Tobacco,

and Firearms (“ATF”), who testified that he processed the weapon, identified the make and

model of the gun, and determined that it was made outside of Tennessee, no earlier than 1980.

Allen did not know whether a trace had been conducted, but he did testify that the firearm was

standard issue for law enforcement, thus creating the inference that the firearm could have been

planted by Reese or Rodgers.

       Unsettled by the implications of Allen’s testimony, that evening, the government

investigated whether a trace had in fact been performed. Unbeknownst to the government, a

trace had been conducted, and the next day, it offered to introduce the report as rebuttal

evidence.      Baker moved to exclude the report, and the district court granted his request.

Nevertheless, the court precluded defense counsel from arguing that a trace had not been




                                              - 11 -
Case No. 13-5506, United States v. Baker


conducted, as this was untrue. In response, Baker moved for a mistrial, arguing that he could no

longer proceed with his defense. The district court denied the motion.

       On appeal, Baker claims the government’s failure to provide the trace report until the last

day of trial deprived him of due process of law. He refers to Brady v. Maryland, 373 U.S. 83

(1963), the Jencks Act, and Federal Rule of Criminal Procedure 16 in support, but Baker cannot

establish a cognizable discovery violation under any of these theories.

       1. Brady Violation

       To establish a Brady violation, Baker must show “(a) suppression [of evidence] by the

prosecution . . . (b) the evidence’s favorable character for the defense, and (c) the materiality of

the evidence.” Moore v. Illinois, 408 U.S. 786, 794–95 (1972). Evidence is material when

“there is a reasonable probability that, had the evidence been disclosed, the result of the

proceeding would have been different.” Smith v. Cain, 132 S. Ct. 627, 630 (2012). Baker argues

that the trace report was “material to preparing [his] defense” and that had he received it before

trial, he would have pursued a different defense strategy.

       Contrary to Baker’s argument, the trace report is not material under Brady because its

late-disclosure did not deprive him of a fair trial, or “undermine[] confidence in the outcome of

the trial.” United States v. Bagley, 473 U.S. 667, 678 (1985). The report did not refute that

Officers Reese and Rodgers observed Baker make a hand-to-hand transaction, that Baker told

Reese he had a gun, or that Reese seized a firearm and crack cocaine from Baker. The district

court questioned the relevance of the trace report, let alone its materiality, concluding that

regardless of whether it was introduced, the report did not pertain to elements of the offenses for

which Baker was charged. The report was neither exculpatory nor did it contain impeaching

information. Indeed, it is unclear how the report could have been used as impeachment evidence




                                               - 12 -
Case No. 13-5506, United States v. Baker


because there was no testimony indicating that a trace had been conducted. Agent Allen could

not be impeached with the report because he testified that he was unaware of whether a trace had

been performed.

       Moreover, late-disclosure of the report did not prevent Baker from pursuing his theory

that the gun had been “planted” on him. Defense counsel elicited testimony from Officers Reese

and Rodgers that they were the only individuals to see the firearm in Baker’s pocket and that

Reese did not accurately record the firearm’s serial number in his report as evidence. Given that

Baker’s fingerprints were not found on the gun, he again had an opportunity to suggest to the

jury that the gun had been planted. In effect, Baker had ample opportunity to advance his

defense; the district court merely prohibited counsel from arguing that no trace had been

performed when counsel knew it had. Since the report was neither exculpatory nor impeaching,

an alleged Brady violation fails on these facts.

       2. Jencks Act Violation

       We review a district court’s ruling on the production of Jencks Act material for clear

error. United States v. Nathan, 816 F.2d 230, 237 (6th Cir. 1987). Under the Act, statements or

reports made by a government witness must be disclosed, on defendant’s motion, but only once

the witness has testified on direct examination at trial. See 18 U.S.C. § 3500. Here, although

Agent Allen testified as a government witness, there is no indication that he created, signed, or

adopted the contents of the trace report. See id. Furthermore, the record does not establish that

Officer Reese adopted or reviewed the document. In the absence of evidence demonstrating that

the trace report was adopted by a government witness, it is not Jencks material and the

government’s failure to produce it until the last day of trial did not violate the Act. Nathan, 816

F.2d at 237.



                                               - 13 -
Case No. 13-5506, United States v. Baker


       3. Rule 16 Violation

       This court examines a district court’s ruling on discovery violations under Federal Rule

of Criminal Procedure 16 for an abuse of discretion. Jordan, 544 F.3d at 667. Rule 16(a)(1)(E)

provides that the government must produce evidence that (1) is material to preparing the defense;

(2) the government intends to use in its case-in-chief at trial; or (3) was obtained from or belongs

to the defendant. Fed. R. Crim. P. 16(a)(1)(E). To establish materiality in the context of Rule

16, Baker must show the existence of a “logical relationship between the information withheld

and the issues in the case, as well as the importance of the information in light of the evidence as

a whole.” United States v. Lykins, 428 F. App’x 621, 624 (6th Cir. 2011).

       The district court held that the trace information was not material to preparing Baker’s

defense because it would not have “altered the quantum of proof in Defendant’s favor.” In fact,

admitting the trace report may have weakened Baker’s argument that the gun was a police-issued

weapon because it was purchased by an individual in 1987, more than two decades before

Baker’s arrest. Given that the trace examination was not material under Rule 16 and that the

district court granted the very remedy Baker requested, the court did not abuse its discretion in

excluding the report.

D. Sentencing

       Baker raises two challenges with respect to his sentence. First, he argues that the court

erred in applying a career offender and an Armed Career Criminal enhancement without

submitting the fact of his prior convictions to the jury. Because Baker did not raise this claim

below, we review the district court’s decision for plain error. See United States v. Milan, 398

F.3d 445, 451 (6th Cir. 2005). To prevail under this standard, Baker must show “(1) error, (2)

that was obvious or clear, (3) that affected his substantial rights, and (4) affected the fairness,




                                               - 14 -
Case No. 13-5506, United States v. Baker


integrity, or public reputation of his judicial proceedings.” United States v. Gunter, 620 F.3d

642, 645 (6th Cir. 2010).

       A criminal defendant is entitled to have a jury decide every element of the crime with

which he is charged. Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). But in Almendarez-

Torres v. United States, the Supreme Court recognized an exception to this general rule and held

that “the fact of an earlier conviction” need not be submitted to the jury and proved beyond a

reasonable doubt.    523 U.S. 224, 226 (1998).         In effect, Baker challenges the continuing

legitimacy of Almendarez-Torres, suggesting that “there is no Constitutional basis” for this

exception and that “a current majority of the Supreme Court rejects [it].” However, the Supreme

Court has not overruled Almendarez-Torres and we are therefore bound by this decision as “[it]

is still good law and will remain so until the Supreme Court explicitly overrules it.” United

States v. Anderson, 695 F.3d 390, 398 (6th Cir. 2012).

       The district court, in applying the career offender and Armed Career Criminal

enhancements, was not required to submit the fact of Baker’s prior convictions to the jury

because “the [Supreme] Court has continued to except such factfinding from the requirements of

the Sixth Amendment.” United States v. Bradley, 400 F.3d 459, 462 (6th Cir. 2005).

       Next, Baker challenges the district court’s imposition of a twenty-three year sentence.

After considering the sentencing factors under 18 U.S.C. § 3553(a), the court varied Baker’s

sentence twelve years below the Guidelines range. Baker claims, without citing any authority in

support, that the court should have explained why a twenty-three year sentence was more

appropriate than the statutory minimum of twenty years.

       We review sentencing decisions for procedural and substantive reasonableness. United

States v. Bolton, 669 F.3d 780, 781 (6th Cir. 2012). We “must first ensure that the district court




                                              - 15 -
Case No. 13-5506, United States v. Baker


committed no significant procedural error, such as failing to calculate (or improperly calculating)

the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a)

factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the

chosen sentence—including an explanation for any deviation from the Guidelines range.” Gall

v. United States, 552 U.S. 38, 51 (2007). In the absence of a procedural error, we then examine

whether the district court’s sentence was substantively unreasonable, which may occur if the

court relies on “impermissible factors, fails to consider relevant sentencing factors, or gives an

unreasonable amount of weight to any pertinent factor.” United States v. Conatser, 514 F.3d

508, 520 (6th Cir. 2008).      Regardless of whether the sentence is “inside, just outside, or

significantly outside the Guidelines range,” courts of appeal must apply a deferential abuse-of-

discretion standard. Gall, 552 U.S. at 51.

       In examining the § 3553(a) factors, the district court discussed Baker’s background,

noting that he had nine juvenile convictions between the age of 13 and 18 and that he did not

grow up in “a very positive environment.” Although Baker did not complete eighth grade, it was

“obvious” to the court that he “has a lot to offer.” The court detailed Baker’s lengthy criminal

history and described the nature and circumstances of the instant offense, first stating that Baker

was on probation for state convictions when he was arrested.           After considering Baker’s

presentence report, counsel’s arguments, and the § 3553 factors, the district court imposed a

twenty-three-year term of imprisonment, finding this to be a “substantial variance” yet

“appropriate under all the facts of this case.”

       As Baker admits, he has a “demanding task” in establishing that the twenty-three-year

term was unreasonable because he specifically requested a “substantial variance,” which the

court granted. Though the court did not explicitly mention each 3553(a) factor, “a reasonable




                                                  - 16 -
Case No. 13-5506, United States v. Baker


sentence based on consideration of the factors does not require a rote listing.” United States v.

Collington, 461 F.3d 805, 809 (6th Cir. 2006). Instead, to permit meaningful appellate review,

the court “must adequately explain the chosen sentence,” Gall, 552 U.S. at 50, demonstrating

that it has examined “the parties’ arguments and has a reasoned basis for exercising his own legal

decision making authority.” Rita v. United States, 551 U.S. 338, 356 (2007). The court did not

address the propriety of a twenty-three year versus a twenty-year sentence, but it did consider

Baker’s arguments, articulate its reasons for the sentence imposed, and afford due consideration

to the relevant § 3553(a) factors. And when this occurs, we are “very reluctant to find the

sentence unreasonable.” Collington, 461 F.3d at 811. We therefore affirm the court’s sentencing

determination.

                                      III. CONCLUSION

       For the foregoing reasons, we affirm the judgment of the district court.




                                              - 17 -
