                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 11a0750n.06

                                             No. 09-6237
                                                                                              FILED
                           UNITED STATES COURT OF APPEALS                                Nov 07, 2011
                                FOR THE SIXTH CIRCUIT
                                                                                   LEONARD GREEN, Clerk

UNITED STATES OF AMERICA,                                   )
                                                            )
        Plaintiff-Appellee,                                 )        ON APPEAL FROM THE
                                                            )        UNITED STATES DISTRICT
                v.                                          )        COURT FOR THE WESTERN
                                                            )        DISTRICT OF TENNESSEE
RICARDO NAVARRETE, JR.,                                     )
                                                            )
        Defendant-Appellant.                                )
                                                            )



BEFORE: NORRIS, SUTTON, and GRIFFIN, Circuit Judges.

        GRIFFIN, Circuit Judge.

        Defendant Ricardo Navarrete, Jr. challenges the procedural reasonableness of his sentence,

arguing that the district court failed to give sufficient reasons for rejecting his purported request for

a variance based on his age. Finding no error, we affirm.

                                                   I.

        Defendant Navarrete pleaded guilty to conspiracy to possess with the intent to distribute not

less than five kilograms of cocaine, in violation of 21 U.S.C. §§ 846 and 841(a)(1). In its

Presentence Investigation Report (“PSR”), the probation department calculated a base offense level

of thirty-six. The offense level was increased by two because Navarrete possessed a dangerous

weapon during the offense. Navarrete received an additional three-level increase because of his role

as a manager or supervisor. He then received a three-level reduction for acceptance of responsibility.
No. 09-6237
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His adjusted offense level of thirty-eight, combined with his criminal history category of II, yielded

an advisory sentencing range of 262 to 327 months’ imprisonment.

       Navarrete filed a response to the PSR.          He challenged the application of the two

enhancements, arguing that they could not be applied because the underlying conduct was neither

charged nor conceded. The response twice mentioned Navarrete’s age – twenty-four at the time of

sentencing – once while arguing against the application of role enhancement, and again in the

concluding paragraph, stating: “Defendant request [sic] that the Court consider the above objections

as well as Defendant’s young age.” Navarrete asked for a sentence “at the low end of the guidelines

after subtracting the 2 level increase pursuant to U.S.S.G. Section 2D1.1(b)(1) and the 3 level

increase pursuant to U.S.S.G. Section 3B1.1.(b) [sic].”

       At sentencing, the government offered testimony supporting the enhancements. Navarrete

reiterated his position that the enhancements should not be applied because the underlying conduct

was neither charged nor conceded. Counsel again obliquely referenced Navarrete’s age in discussing

the role enhancement. The court overruled Navarrete’s objections and calculated his advisory

sentence range at 262 to 327 months.

       Navarrete’s counsel asked for a sentence of 151 months, which was the low end of the

Guidelines as he had calculated them:

       Your Honor, these five points give this man, 23 years old, arising [sic] sentence of
       ten years. Okay. The statute is ten to 40 or ten to life. I do not see that the
       guidelines being advisory that we should give this man ten years more than he would
       get without these five points.

       And, you know, and – are we punishing people just to be punishing people?

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        I mean, a sentence of ten years or the lower end of the guidelines, as I figured them
        out in my objections, it – it satisfies all the elements of the statute as – as to
        sentencing and punishment. So, you know, it just galls me to see that this man gets
        an additional ten [years] for something that is not pled to or charged conduct.

And later: “Also, Your Honor, whatever sentence the court decides, I ask that the court sentence at

the low end of the guidelines, and also ask the court not to impose a fine since he does not have the

money to pay a fine.”

        The district court sentenced Navarrete to 262 months’ imprisonment, at the low end of the

Guidelines. Navarrete timely appealed.

                                                  II.

        “We review a district court’s sentencing decision for reasonableness, which has both

procedural and substantive components.” United States v. Garcia-Robles, 640 F.3d 159, 163 (6th

Cir. 2011) (internal citation omitted). A sentence may be procedurally unreasonable if “‘the district

court . . . fail[s] to adequately explain the chosen sentence.’” Id. (quoting Gall v. United States, 552

U.S. 38, 51 (2007)). Navarrete contends that his sentence is procedurally unreasonable “because the

district court failed to explain why it [chose] the 262 month sentence versus” the sentence of 151

months Navarrete requested on account of his “young age.”

                                                  A.

        We consider first our standard of review. Generally, “[w]e review the district court’s

sentencing decisions for reasonableness under an abuse-of-discretion standard.” United States v.

Wettstain, 618 F.3d 577, 591 (6th Cir. 2010). The government, however, insists that we apply plain-



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error review because Navarrete failed to raise this procedural challenge before the district court,

despite an opportunity to do so. See Fed. R. Crim. P. 51(b).

       “In United States v. Bostic, 371 F.3d 865 (6th Cir. 2004), we wrestled with the difficulty of

‘parsing a [sentencing] transcript to determine whether . . . a party had a meaningful opportunity to

object’ and of determining whether plain-error review should apply.” United States v. Vonner, 516

F.3d 382, 385 (6th Cir. 2008) (en banc) (quoting Bostic, 371 F.3d at 873 n.6) (alteration and ellipsis

in original). There, we announced a procedural rule that requires district courts, “after pronouncing

the defendant’s sentence but before adjourning the sentencing hearing, to ask the parties whether

they have any objections to the sentence just pronounced that have not previously been raised.”

Bostic, 371 F.3d at 872. If not provided with this opportunity to object, a party who fails to make

a new objection at sentencing does not forfeit the objection and need not demonstrate plain error on

appeal. Id. We further clarified in United States v. Clark, 469 F.3d 568 (6th Cir. 2006), that “[a]

district court can satisfy the requirements of the Bostic rule only by clearly asking for objections to

the sentence that have not been previously raised . . . .” Id. at 570.

       Applying Bostic, we have found that a district court’s question, “Anything else, [defense

counsel]?” does not provide a meaningful opportunity to object and, thus, does not trigger plain-error

review. Id. at 570-71; see United States v. Gapinski, 561 F.3d 467, 473-74 (6th Cir. 2009) (holding

that the district court’s question, “Anything else for the record, [defense counsel]?” was insufficient

under Bostic); United States v. Thomas, 498 F.3d 336, 340 (6th Cir. 2007) (similar question

insufficient); see also United States v. Campbell, No. 08-1272, 2011 WL 3890309, at *3 (6th Cir.


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Sept. 6, 2011) (declining to decide whether plain-error review applied where district court “asked

[defense] counsel if there were ‘any questions [or] objections concerning the terms of the

sentencing” because “our decision remains the same under both plain error and abuse of discretion

standards of review”).

       After imposing Navarrete’s sentence, the district court asked, “Are there any questions about

the sentence?” to which defense counsel responded, “Nothing from us, Your Honor.” Navarrete

contends that the form of the district court’s question did not satisfy Bostic because counsel was

asked only if he had any “questions,” not “objections.” While there is authority that undermines

Navarrete’s argument, see United States v. Wilson, 232 F. App’x 540, 545 (6th Cir. 2007) (finding

that the question, “Now, are there any questions regarding the sentence that I have imposed?” was

sufficient under Bostic), we need not decide whether the district court’s question was sufficient, for

we find that Navarrete’s challenge to his sentence fails even under the less deferential abuse-of-

discretion standard of review.

                                                  B.

       “Although Congress requires a court to give ‘the reasons’ for its sentence, 18 U.S.C. §

3553(c), it does not say that courts must give the reasons for rejecting any and all arguments by the

parties for alternative sentences.” Vonner, 516 F.3d at 387. The law encourages district court judges

to give “reasoned” explanations for their sentencing decisions, but “the law leaves much, in this

respect, to the judge’s own professional judgment.” Id. (citation, internal quotation marks, and

alteration omitted). “That flexibility is particularly relevant when the district court agrees with the


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Sentencing Commission’s recommendations.” Id. In such cases, the district judge need not provide

a “lengthy explanation” because “[c]ircumstances may well make clear that the judge rests his

decision upon the Commission’s own reasoning that the Guidelines sentence is a proper sentence

(in terms of § 3553(a) and other congressional mandates) in the typical case.” Rita, 551 U.S. at 356-

57. For within-Guidelines sentences, “the question is whether the record makes clear that the

sentencing judge listened to each argument, considered the supporting evidence, was fully aware of

the defendant’s circumstances and took them into account in sentencing him.” Vonner, 516 F.3d at

387 (citation, internal quotation marks, and alteration omitted).

       At sentencing, the district judge never expressly addressed Navarrete’s purported request for

an age-based variance. The reason is obvious: not once did Navarrete clearly present any argument

for a variance based upon his age.1 His age was mentioned both in his written response to the PSR

and at sentencing only in passing, and only in connection with requests that the enhancements not

be applied and that he receive a sentence at the low end of the Guidelines range. As Navarrete’s

counsel emphasized at sentencing, the “thrust” of his argument for a lower sentence was that it was

unfair to hold Navarrete responsible for conduct not charged or conceded. Accordingly, the district



       1
         To the extent Navarrete requested a variance at all (instead of simply asking that the court
not apply the two enhancements), the request was predicated on his view that a sentence at the low
end of the Guidelines, as he calculated them, “satisfie[d] all the elements of the statute . . . as to
sentencing and punishment.” He did not elaborate. The district court disagreed by stating that “this
offense requires a serious[] sentence,” implying that it found Navarrete’s requested sentence of 151
months insufficiently serious to accomplish the goals of sentencing. We find the explanation
sufficient, brief as it was, given the conceptual simplicity of Navarrete’s argument. See Vonner, 516
F.3d at 388.

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court was never presented with a clear request that it vary downward from the Guidelines because

of Navarrete’s relatively young age. A district court judge need only speak to those arguments that

are “clearly presented and in dispute” when imposing a sentence. United States v. Simmons, 587

F.3d 348, 361 (6th Cir. 2009); see, e.g., United States v. Martinez, No. 06-4407, 2011 WL 3289597,

at *7 & n.10 (6th Cir. Aug. 2, 2011) (finding that district court did not err by not addressing a

purported request for variance based on the defendant’s medical condition, where the defendant did

not raise any medical condition in arguments at sentencing, let alone present any explanation for why

his medical condition warranted a lower sentence). Therefore, the district court’s failure to address

Navarrete’s purported request for a below-Guidelines sentence based on his age does not render his

sentence procedurally unreasonable.

       Navarrete also argues briefly that the district court’s failure to address the need to avoid

unwarranted sentence disparities, see 18 U.S.C. § 3553(a)(6), renders his sentence procedurally

unreasonable. See Garcia-Robles, 640 F.3d at 163. But Navarrete made no argument at sentencing

regarding national disparities, see United States v. Simmons, 501 F.3d 620, 625 (6th Cir. 2007) (“The

district judge is only under a more rigorous duty to make explicit its consideration of the factors

when a defendant makes a particular argument and when a factor is particularly relevant.” (internal

citations omitted)), and we have “never required the ‘ritual incantation’ of the [§ 3553(a)] factors

to affirm a sentence,” see United States v. Phillips, 516 F.3d 479, 488 (6th Cir. 2008) (quoting

United States v. Williams, 436 F.3d 706, 709 (6th Cir. 2006)). Nor can Navarrete show that the

district court ignored this factor in sentencing, see Simmons, 501 F.3d at 625-26, because the district


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court determined Navarrete’s sentencing range under the Guidelines, see id. (“Indeed, here it is clear

that the district judge did consider national uniformity because the judge determined what the

Sentencing Guidelines range would be, a guidelines range that considers the criminal conduct at

issue as well as the criminal history of the defendant.”).

       Because the district court gave a sufficient explanation for its sentence, we conclude that

Navarrete’s sentence is procedurally reasonable.

                                                 III.

       For these reasons, we affirm.




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