                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 07a0368n.06
                             Filed: May 31, 2007


                                         Case No. 06-1129


                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

                                              )
UNITED STATES OF AMERICA,                     )
                                              )
               Plaintiff-Appellee,            )       ON APPEAL FROM THE UNITED
                                              )       STATES DISTRICT COURT FOR
                                              )       THE WESTERN DISTRICT OF
               v.                             )       MICHIGAN, SOUTHERN DIVISION
                                              )
                                              )
NORRIS DUNCAN,                                )
                                              )
               Defendant-Appellant.           )


BEFORE: MOORE and GIBBONS, Circuit Judges; SARGUS, District Judge.*


       SARGUS, District Judge. Appellant-Defendant, Norris Duncan, was resentenced to a term

of 151 months of imprisonment following his conviction for possessing a firearm after having been

previously convicted of a felony, in violation of 18 U.S.C. §§ 922(g)(1), 921(a) and 924(e). In this

appeal, Duncan contends that the sentence imposed was procedurally unreasonable in that the

district court failed to consider the factors set forth in 18 U.S.C. § 3553(a), as required by United

States v. Booker, 543 U.S. 220 (2005). This Court has jurisdiction to review final criminal

sentences imposed by a district judge. 18 U.S.C. § 3742, as modified by Booker, 543 U.S. at 260-



       *
         The Honorable Edmund A. Sargus, Jr., United States District Judge for the Southern
District of Ohio, sitting by designation.
61. For the reasons that follow, the sentence imposed by the district court is AFFIRMED.

                                                 I.

       On January 9, 2004, Duncan pleaded guilty to possessing a firearm after having been

previously convicted of three or more violent felonies or serious drug offenses. On April 12, 2004,

the district court sentenced Duncan to a term of imprisonment of 188 months. Duncan then filed

a timely notice of appeal to this Court.

       Thereafter, the United States filed a motion pursuant to Rule 35(b) of the Federal Rules of

Criminal Procedure and sought a reduction in Duncan’s sentence, based upon his substantial

assistance in the investigation or prosecution of others. A jurisdictional issue, unrelated to this

appeal, then ensued. On August 25, 2004, the district court resentenced Duncan to a new term of

151 months. The United States and the Defendant-Appellant filed a joint motion to vacate the prior

judgment of sentence and to remand the case for resentencing in light of both the Rule 35(b) motion

and the decision in Booker.1

       Upon remand, this case was reassigned to a new district judge. The district court granted

the Rule 35(b) motion made by the Government. Without objection, the district court calculated

an offense level 29 and a criminal history category VI. Under the advisory United States Sentencing

Guidelines, these two findings resulted in a sentencing range of 151 to 188 months.

       Prior to sentencing, Duncan’s counsel asked the court to consider his medical condition and

post-conviction efforts. His counsel pointed to a number of educational programs which Duncan

completed while incarcerated and asked the court to consider a sentence below 151 months.



       1
        Both parties to this appeal acknowledge that the district court lacked jurisdiction to
resentence Duncan while the case was still on appeal to this Court.

                                                -2-
          The district court sentenced Duncan to an identical term of 151 months of imprisonment.

                                                      II.

          This Court reviews a sentence imposed by a district court for reasonableness. United States

v. Dexta, 470 F.3d 612, 614 (6th Cir. 2006) (citing United States v. Jackson, 408 F.3d 301, 304 (6th

Cir. 2005)). A sentence imposed within the Sentencing Guidelines is presumptively reasonable.

United States v. Williams, 436 F.3d 706, 708 (6th Cir. 2006).

                                                      III.

          Duncan challenges only the procedural reasonableness of the sentence imposed. As this

Court explained in United States v. Collington:

          We have now split our reasonableness review into two inquiries: procedural
          reasonableness and substantive reasonableness. A sentence may be procedurally
          unreasonable if “the district judge fails to ‘consider’ the applicable Guidelines range
          or neglects to ‘consider’ the other factors listed in 18 U.S.C. § 3553(a), and instead
          simply selects what the judge deems an appropriate sentence without such required
          consideration.”

461 F.3d 805, 808 (6th Cir. 2006) (quoting United States v. Webb, 403 F.3d 373, 383 (6th Cir.

2005)).

          Duncan does not dispute that the Guidelines were correctly calculated. The sole issue raised

in this appeal is whether the district court considered the factors listed in 18 U.S.C. § 3553(a).2

          2
           Section 3553(a) provides in full:
          (a) Factors to be considered in imposing a sentence.--The court shall impose a sentence
          sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2)
          of this subsection. The court, in determining the particular sentence to be imposed, shall
          consider--
                   (1) the nature and circumstances of the offense and the history and characteristics of the
                   defendant;
                   (2) the need for the sentence imposed--
                            (A) to reflect the seriousness of the offense, to promote respect for the law, and
                            to provide just punishment for the offense;
                            (B) to afford adequate deterrence to criminal conduct;

                                                      -3-
       In United States v. Bostic, 371 F.3d 865, 873 (6th Cir. 2004), this Court held that, if the

sentencing judge provided the parties with an opportunity to lodge objections after sentencing but

prior to adjourning the sentencing hearing, a party who failed to object faces plain error review on

appeal. Here, the district judge orally imposed the sentence. The judge then asked the parties if


                        (C) to protect the public from further crimes of the defendant; and
                        (D) to provide the defendant with needed educational or vocational training,
                        medical care, or other correctional treatment in the most effective manner;
               (3) the kinds of sentences available;
               (4) the kinds of sentence and the sentencing range established for--
                        (A) the applicable category of offense committed by the applicable category of
                        defendant as set forth in the guidelines--
                                 (i) issued by the Sentencing Commission pursuant to section 994(a)(1)
                                 of title 28, United States Code, subject to any amendments made to such
                                 guidelines by act of Congress (regardless of whether such amendments
                                 have yet to be incorporated by the Sentencing Commission into
                                 amendments issued under section 994(p) of title 28); and
                                 (ii) that, except as provided in section 3742(g), are in effect on the date
                                 the defendant is sentenced; or
                        (B) in the case of a violation of probation or supervised release, the applicable
                        guidelines or policy statements issued by the Sentencing
                        Commission pursuant to section 994(a)(3) of title 28,
                        United States Code, taking into account any
                        amendments made to such guidelines or policy
                        statements by act of Congress (regardless of whether
                        such amendments have yet to be incorporated by the
                        Sentencing Commission into amendments issued under
                        section 994(p) of title 28);
               (5) any pertinent policy statement--
                        (A) issued by the Sentencing Commission pursuant to
                        section 994(a)(2) of title 28, United States Code, subject
                        to any amendments made to such policy statement by act
                        of Congress (regardless of whether such amendments
                        have yet to be incorporated by the Sentencing
                        Commission into amendments issued under section
                        994(p) of title 28); and
                        (B) that, except as provided in section 3742(g), is in
                        effect on the date the defendant is sentenced.
               (6) the need to avoid unwarranted sentence disparities among defendants
               with similar records who have been found guilty of similar conduct; and
               (7) the need to provide restitution to any victims of the offense.



                                                   -4-
there were any objections to the sentence. No objections were raised. Under Bostic, this Court

reviews under the plain error standard.

       Plain error is established only if the error “is clear or obvious, and if it affects substantial

rights. . . .” United States v. Barajas-Nunez, 91 F.3d 826, 830 (6th Cir. 1996). The record below

must reflect that the district court erred and that the error was plain. United States v. Olano, 507

U.S. 725, 732-34 (1993).

       The district court imposed a sentence within the guideline range, which means the sentence

is presumptively reasonable. Duncan contends that the district court failed to articulate its view of

the factors set forth in 18 U.S.C. § 3553(a). The record below indicates that the district judge

explained his reasoning for the sentence imposed. The absence of reference to each of the statutory

factors is not plain error. The district court explained its sentencing decision and imposed a

presumptively reasonable sentence. Duncan has failed to meet the plain- error standard of review.

                                                 IV.

               For these reasons, the sentence imposed by the district court is AFFIRMED.




                                                 -5-
