                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 08-1549
                                   ___________

United States of America,               *
                                        *
            Appellee,                   *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Western District of Missouri
Reginald L. McGlothen,                  *
                                        *
            Appellant.                  *
                                   ___________

                             Submitted: December 11, 2008
                                Filed: February 13, 2009
                                 ___________

Before LOKEN, Chief Judge, BEAM, Circuit Judge, and KYLE, District Judge.1
                              ___________

BEAM, Circuit Judge.

       Reginald McGlothen appeals his conviction for unlawful possession of a
firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). McGlothen alleges his
custodial statements made prior to receiving Miranda2 warnings should have been
suppressed. McGlothen also argues his sentence was unreasonable because the




      1
      The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota, sitting by designation.
      2
       Miranda v. Arizona, 384 U.S. 436 (1966).
district court3 failed to consider 18 U.S.C. § 3553, failed to explain the basis for the
length of the sentence, and treated the Guidelines as mandatory. We affirm.

I.    BACKGROUND

       Kansas City, Missouri, police officers executed a search warrant on
McGlothen's home after making two controlled drug buys. McGlothen was not there
at the time, but drove past the house during the search. Officers then stopped
McGlothen and brought him back to the residence. Sergeant Huth, the officer in
charge of the search, explained to McGlothen why officers were there, told
McGlothen he was under arrest, and began recording biographical information for
booking. While obtaining the booking information, an officer approached Huth with
a gun found in the home during the search. Huth then explained to McGlothen that
he would also be charged with being a felon in possession of a firearm. McGlothen
stated that the gun was his and he bought it for protection. Huth told McGlothen not
to say anything else because he had not been Mirandized. McGlothen responded by
saying, "I just wanted to let you know I bought it for my own protection."

       Prior to trial, McGlothen moved to suppress his un-Mirandized statements, but
the district court accepted the magistrate judge's4 recommendation that the motion be
denied. At trial, the district court, over McGlothen's renewed objection, admitted
McGlothen's statement that the gun was his and that he bought it for protection.
McGlothen was convicted and sentenced to 262 months, the bottom of the Guidelines
range. During sentencing, McGlothen argued that the Guidelines range was too harsh.
In response, the district court, after reviewing the presentence investigation report,


      3
        The Honorable Scott O. Wright, United States District Judge for the Western
District of Missouri.
      4
        The Honorable Sarah W. Hays, United States Magistrate Judge for the Western
District of Missouri.

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noted McGlothen's extensive criminal history, stated that the court had to sentence
him within the Guidelines, and recommended that he receive therapy for his mental
and drug problems. On appeal, McGlothen renews his objection to the admission of
his un-Mirandized statements, arguing that he was in custody when he made them and
that presenting him with the gun was the functional equivalent of interrogation.
McGlothen also appeals his sentence.

II.   DISCUSSION

      A.      Motion to Suppress

        We review a district court's factual findings for clear error and legal conclusions
de novo when reviewing the denial of a motion to suppress. United States v.
Londondio, 420 F.3d 777, 783 (8th Cir. 2005). Miranda warnings are required when
a defendant is in custody and is being interrogated. Id. McGlothen was in custody
when the contested statements were made. This case, therefore, turns on whether
McGlothen was being interrogated when he made the un-Mirandized statements. Id.
An interrogation includes both direct questions and "words or actions that officers
should know are 'reasonably likely to elicit an incriminating response from the
suspect.'" Id. (quoting United States v. Briones, 390 F.3d 610, 612 (8th Cir. 2004)).
In this case, officers did not directly question McGlothen regarding the firearm. Thus,
our focus is on whether the officers' words or actions were reasonably likely to elicit
an incriminating response. Voluntary statements not in response to an interrogation
are admissible with or without Miranda warnings. Id.

      McGlothen contends that presenting him with the gun and accusing him of
possessing it were actions and words reasonably likely to induce a response from
McGlothen. Further, McGlothen argues that even though the statements were made
during routine booking questions, Miranda still applied. Accordingly, he says, the



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officers' actions were the functional equivalent of an un-Mirandized interrogation. We
disagree.

       We addressed similar facts in United States v. Barnes and found the officer's
actions were not the functional equivalent of interrogation. 195 F.3d 1027, 1029 (8th
Cir. 1999). In Barnes, a defendant moved to suppress statements made after he
invoked his right to counsel. Id. After invoking this right, officers told the defendant
that he was going to be booked for possession of a firearm. Id. The defendant
responded by saying he "didn't think so," and officers asked what he meant. Id. In
response, the defendant made incriminating statements. Id. We found the statements
spontaneous and that "the officer's remark to [the defendant] that he was going to be
charged with possession of a firearm was a statement of fact, not the functional
equivalent of interrogation." Id. As in Barnes, the officer's words indicating that
McGlothen was to be charged with possession of a firearm were statements of fact,
not the functional equivalent of an interrogation. Because McGlothen was not being
interrogated, Miranda warnings were not required and the district court did not err in
denying the motion to suppress.

      B.      Sentencing

       Typically, we review a sentence for an abuse of discretion. But when, as here,
a defendant alleges procedural sentencing errors on appeal and failed to object to the
errors in the district court, our review is for plain error. United States v. Burnette, 518
F.3d 942, 945-46 (8th Cir.), cert. denied, 129 S. Ct. 138 (2008). Thus, we will reverse
the sentencing court only if "there is (1) error (2) that is plain and (3) that affects the
defendant's substantial rights." United States v. Guarino, 517 F.3d 1067, 1068 (8th
Cir.), cert. denied, 129 S. Ct. 233 (2008).

      The district court sentenced McGlothen to the bottom of the Guidelines range.
Before doing so, as earlier noted, the court reviewed the presentence investigation

                                           -4-
report (PSR), which included McGlothen's criminal, personal, and family history;
physical condition; history of substance abuse; and mental health. McGlothen alleges
on appeal that the district court failed to address the 18 U.S.C. § 3553 factors and to
explain why the length of the sentence was warranted. Also, McGlothen argues that
the district court treated the Guidelines as mandatory, as evidenced by the judge's
statements that "I have to sentence you within the [G]uidelines," and that the sentence
would be at the bottom of the Guidelines range because "that's the most I can do."

       A district court must consider the § 3553(a) factors during sentencing. United
States v. Gray, 533 F.3d 942, 943 (8th Cir. 2008). Failing to consider these factors
or failing to sufficiently explain a sentence is reversible procedural error. Id.
However, sentencing judges are presumed to know the law and to understand the need
to consider the § 3553 factors. Id. Further, there is no need to recite each § 3553
factor; it is often enough that a judge only reference some of the factors. Id. at 944.
When reviewing the sufficiency of a § 3553 analysis, we look to the entire record, not
just discrete statements made during the sentencing hearing. Id.

       The district judge noted the circumstances of the offense and McGlothen's
criminal history, which are both factors under § 3553(a)(1). The district judge
considered McGlothen's mental health issues and drug addiction and recommended
treatment for both during incarceration. These are factors under § 3553(a)(2)(D). The
judge then noted the sentences available, a factor in § 3553(a)(3), and sentenced
McGlothen to the bottom of the Guidelines range after reviewing the PSR. While the
district judge certainly could have expanded upon his § 3553 analysis, and might well
say more in the future, a review of the entire record fails to support a finding of plain
error in this case.

       McGlothen further argues that the district court failed to explain why the length
of the sentence imposed was necessary. Judges, however, are not required to detail
their reasons for a sentence when merely applying the Guidelines to a case. United

                                          -5-
States v. Petreikis, 551 F.3d 822, 824-25 (8th Cir. 2009). How much should be said
depends on the facts before the court. Id. While a judge must "state in open court the
reasons for its imposition of the particular sentence," 18 U.S.C. § 3553(c), a full
opinion need not be issued in every case. United States v. Roberson, 517 F.3d 990,
994 (8th Cir. 2008). Rather, enough must be said to make it apparent to an appellate
court that the district court "considered the parties' arguments and ha[d] a reasoned
basis for exercising [its] own legal decisionmaking authority." Id. If the sentence
imposed is within the Guidelines and the case is not atypical, a district court may rest
its decision on the Sentencing Commission's reasoning. Id.; see also Gray, 533 F.3d
at 944 (stating circumstances may make it clear "that the judge believed the case was
typical, and rested his decision upon the Commission's own reasoning"). Only in an
atypical case "or in response to non-frivolous arguments for a different sentence" is
more required. Roberson, 517 F.3d at 994.

      In this case, the district court referred to the Guidelines range and noted in
discussion of McGlothen's extensive criminal history that McGlothen's "record is just
horrendous." The judge then sentenced McGlothen to the bottom of the Guidelines
range. There is nothing unique about McGlothen's case. Indeed, there is nothing that
warrants a more detailed explanation. It is enough that the district judge "rest[ed] his
decision upon the Commission's own reasoning." United States v. Mooney, 534 F.3d
944, 947 (8th Cir. 2008), cert. denied, No. 08-7793, 2009 WL 129265 (Jan. 21, 2009).

       Finally, McGlothen argues the district court erred by viewing the Guidelines
as mandatory. It is, of course, significant procedural error to treat the Guidelines as
mandatory. Id. at 946. But, when a district court's statements are alleged to show the
court treated the Guidelines as mandatory, those statements must be "considered in
their full context." Id. at 947. McGlothen relies on the district court's statements, "I
have to sentence you within the [G]uidelines," and "that's the most I can do," to show
that the court viewed the Guidelines as mandatory. When viewed in isolation, these
statements raise concerns about how the district court viewed the Guidelines. They

                                          -6-
were made, however, during a broader colloquy with McGlothen whereby McGlothen
contended that the Guidelines range was too harsh, and the district court responded
with an inquiry into McGlothen's criminal history, drug use, and mental health. Thus,
when viewed in context, the district court's statements were actually a response to
McGlothen's allegations and were premised on the facts of the case. So, the record
viewed as a whole, makes it abundantly clear that the district judge felt he had to
sentence McGlothen within the Guidelines because the facts of the case warranted
such a sentence, not because he viewed the Guidelines as mandatory.

III.   CONCLUSION

       For the foregoing reasons the district court opinion is affirmed.
                       ______________________________




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