NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 11a0528n.06 No. 06-4407 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNITED STAT ES O F AMERICA , Plaintif f-Appellee ,

v. JOSÉ C. MAR TINEZ, JR. , Defendant-

Appellant

. ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNI TED STATES DI STRI CT CO URT FOR THE NORTHERN DI STRI CT OF OHI O O P I N I O N

BEFORE: COLE and GIBBONS, Circuit Judges; and CL ELAND, District Judge. * CLELAND, District Judge. Def endant- Appellant J osé C. Martinez, J r., was convicted by

a Toledo, Ohio, jury of one count of consp i ra cy

— wi t h family members and sever al others—to distribute and to possess with intent to dis tribute at lea st five kilogr ams of coc aine, in violation of 21 U.S.C. §§ 841, 846, and five counts of unlawful use of a communication fac ility , in violation of 21 U.S.C. § 843(b). On appea l, he asser ts that the district court err ed in denying his motion to sever his trial from that of two of his co-c onspirators. He also claims his sentenc e is “proc edurally

unrea sonable” beca

use at sentenc ing t h e d i s t ri ct judge did not expli citly reje ct his contention, arguab l y p resented i n his sentenc ing memoranda , that a sentencing varia nce was warra

nted based on his history

of grand mal

seizures. We AFF I RM the judg ment of the district cour t.

The Honorable Robert H. Cleland, United States District Court for the Easter n District of * Michig an, sitting by

desig nation.Case No. 06- 4407

United States of America v . José C. Martinez, J r. I. BACKG ROUND Martinez was a high- level distributor of coca ine i n t h e T oledo, Ohio, are a from ap proxi mately 2001 until 2005. He was char g ed in six counts of a 50-count, 21-d ef en d an t indictment a lleg ing a vast drug distribution conspira cy . Along with his brother, John A. Martinez (“John”), and his fathe r, J osé C. Martinez, Sr. (“Jose Sr.”), Martinez would purcha se larg e quantities of coca ine and marijuana via Texas from distributors , i ncluding Br ian D. Summers, Ricardo Medra no, and J osé J

. Mendez-Va rg as. Martinez then sold the drug s to mi d -l evel local deale rs, including A ntwan L . Wy

nn, Ruben Var g as, and A nthony Hobbs. Martinez filed a nonspecific “Motion to Join Applicable Co-De fenda nts Motions ,” as well

as a motion specific ally joining in co-de fenda nt Dar ren E. Newma

n’s motion to sever . I n a pretria l order , the m ag istrate judge den i ed the m otion to sever without prejudice to rene wal. At a pretrial confe renc e Martinez rene wed the motion, and the court denied it; he rene wed it ag ain afte r the close of the g overnme nt’s case , and it was denied once more. After Martinez, his brother, and his fathe r all reje cted offe rs from the g overnme nt to plead g uilty , they wer e tried toge ther and convicte d o f vary ing char g es. J ohn was convicted on five counts (conspira cy , possession with intent to distribute

coca ine, and three counts of unlawful use of a communication fac ility ) and ac q u i tted on one (possession with intent to distribute cra ck coca i n e)

. J osé Sr. was convicted on one count of 1

W e affirmed J ohn’s conviction in United States v. Martinez , 302 F. App’x 379 (6th Cir. 1 2008). J ohn’s appea l, orig inally consolidated with Martinez’s, was sever ed in order to a c commodate Martinez’s repe ated motions for an extension of time to file his opening brief. J ohn did not raise on appea l either of the arguments considere d here

. -2-Case No. 06- 4407

United States of America v . José C. Martinez, J r. unlawful use of a communication fac ility and acquit t ed o n t he conspirac y char g e as well as on another unlawful use c ount. The prese ntence repor

t calc ulated a total of

fense level of 40—using a base offe nse level of 36 and a four-p o i n t en h an ceme nt for Martinez’s role as an org anizer or leade r of five or more participa nts—and a criminal history cate g ory I

. Martinez filed two sets of objections to the repor t. Among other objections, in his first filing, he arg ued: “Whatever the sentenc e, we would respe ctfully reque st this Court to rec ommend a minimum secur ity fac ility beca use of J o s e’s [si c] grand mal seizures, which put him at g reater risk.” This fi rst filing contained no ref ere nce to the medical condition under the section en t i t l ed “Va rianc e,” but it did indicate that “hea lth considerations” should be t ak en into acc ount in formulating the ultimate sentenc e. The second set of objections
state: “The defe ndant reque sts, pursuant to U.S.S.G. Sections 5H1.3 and 5H1.4, that the court depar t downwar d, based on his considera ble medical issues relating to seizure disorder.” Those objections, too, list “hea lth considera tions” in Martinez’s concluding reque st for an eig ht-to-ten-y ear sentenc e. The district court sua sponte reduc ed Martinez’s exposure by near ly nin e y ea rs, depar ting four levels downwar d at sentenc ing to a b as e l evel of 32. The court rea soned that the same base offe nse level should be used for the two brothers beca use they wer e “re latively equally culpable.” The c ourt then applied the four- point enhance ment, and ar rived at the rang e of 188 to 235 months based on a total of

fense level of 36. The court indicated at the hear ing that it ha d rea d Martinez’s 2

The guideline ra

ng e as or igina lly

calc ulated wa s 292 to 365 months. The gove rnment 2 objected to this substantial depar ture a s expl ained by

the district court, but did not press the issue in a cr oss-appe al. -3-Case No. 06- 4407

United States of America v . José C. Martinez, J r. sentenc ing memoranda , that it had “looked at the g uidelines and

. . . looked clea rly and extensively at [ § 3553(a) ],” and that it had considered Martinez’s backg round. The court imposed a sentence of 220 months on count one and 48 months on eac h of the o t h er co u n t s , al l of which wer e to be

serve d concur

rently

. Despite repe ated opportunities to raise ad d itional objections or to focus the court’s attention on cer

tain issues during the hear ing, and relatively leng thy statements from Martinez himself, at no time during the sentenc ing did Martinez or his counsel verba lly addre ss his history of seizures. II. DISCUSS ION The district court did not clea rly abuse its discretion in denying Martinez’s motion to sever , and neither err ed nor abused it s d i s cr et i on in silently reje cting the seizure disorder basis for a varia nce. A. Sever ance We re v i ew the district court’s denial of a motion to sever for clea r abuse of discretion. 3 United States v. Caver , 470 F.3d 220, 237 (6th Cir. 2006) (citing United States v. Bev erly , 369 F.3d 516, 534 (6th Cir. 2004)); United States v. Harris , 9 F.3d 493, 500 (6th Cir. 1993); United States v. Causey , 834 F.2d 1277, 1287 ( 6th Cir. 1987). Fe dera l Rule of Criminal Procedure 8(b) pr ovides: The indictment or information may char g e 2 or more defe ndants if they are alleg ed to have participated in th e s am e ac t or transac tion, or in the same series of acts or
By rene wing the motion at the close of the g overnme nt’s case , Martinez’s counsel prese rved 3 this iss ue for

revie w. Caver , 470 F.3d a t 237 n.8; see United States v. Allen , 160 F.3d 1096, 1106 (6th Cir. 1998). -4-Case No. 06- 4407

United States of America v . José C. Martinez, J r. transac tions, constituting an offe nse or offe nses. The defe ndants may be char g ed in one or more counts toge t h er or separ ately

. All defe ndants need not be char g ed in eac h count. “I f the joinder of offe nses or defe ndants in an indictment, an information, or a consolidation for trial appea rs t o prejudice a defenda

nt or t he gover

nment, the court may order separ ate tria l s o f co u n t s ,

sever the defe ndants’ trials, or provide any other relief that justice require s.” Fe d. R. Crim. P. 14(a)

. I nterpre ting Rule 14, the Six th Circuit has observe d that “[a]s a g ener al rule, persons jointly indicted should be tried toge ther.” Causey , 834 F.2d at 1287; accord Zafir o v. United States , 506 U.S. 534, 537 (1993); United States v. Driver , 535 F.3d 424, 427 (6th Cir. 2008) ; United States v. Gardiner , 463 F.3d 445, 472 (6th Cir. 2006); Harris , 9 F.3d at 500. This is beca use joint trials serve society ’s interest in the speedy and eff icient resolution of case s when the “cha rg es will be proved by the same evidenc e and result from the same acts.” Caver , 470 F.3d at 238 (quoting Bev erly , 369 F.3d at 534) (interna l quotation marks omitted). “[A] district court should g rant a sever ance under Rule 14 only if there is a serious risk that

a joint trial would compromise a specific trial rig ht of one of the defe ndants, or preve nt the jury from making a reliable judgme nt a bout guilt or innocenc e.” Zafir o , 506 U.S. a t 539. Ex amples of such “ser ious risk[s] ” include wher e evidenc e is admissible ag ainst one defe ndant but not another , wher e jointly tried defe ndants have “mar kedly differ ent deg ree s of culpability ,” or wher e exc u l p at ory evidenc e would be inadmissible in a joint trial. Id. Howeve r, there is no test or excl u sive list of putative prejudice s, as “[t] he risk of prejudice will vary with t h e fa ct s i n ea ch case .” Id. Risk of simple prejudice is insufficient to sever t h e trials of co-de fenda nts; the prejudice must be “‘c ompelling, specific , and actua l,’” Gardiner , 463 F.3d at 473 (quoting United States v. S a a d e y , 3 9 3 -5-Case No. 06- 4407

United States of America v . José C. Martinez, J r. F.3d 669, 678 (6th Cir. 2005)), or “substantial” or “undue,” Caver , 470 F.3d at 238 (quoting United States v. Dav is , 177 F.3d 552, 558 ( 6th Cir. 1999)) (interna l quotation mar ks omitt ed). N o matter the adjective employ ed, to preva il on appea l whateve r prejudice a d efe ndant endured as the result of the denial of his sever ance motion must be something more than the run-of -the-mill, plain vanilla prejudice that is incident to, or at least likely to arise in, any criminal trial involving more than one defe ndant. I t is appar ent from the rec ord that this case involved no such specia l or heig htened prejudice , and we find that the district court did not clea rly abuse its discre tion. I n essenc e, the foundation of Martinez’s contention of substantial prejudice is that he and his co-de fenda

nt relatives wer e involved in distinct conspirac ies. I n support of this claim, he states that he and his brother, J ohn, “we re more competitors than conspirator s,” and he cites anec dotes of price competition. A m i d -l ev el distributor, Hobbs, testified at trial that he purcha sed drug s from both brothers separ ately , and one of the suppliers, Medra no, testified that he ref

used to distribute to Martinez, pref

err ing to deal only with J ohn. Martinez additionally relies on Hobbs’s inabili t y t o substantiate his asser

tion that J ohn rec eived some of his coca ine from Martinez. He also m akes much of his own absence from cer tain drug transac tions, specifie d at l eng th in the i ndictment and at trial, which involved John and other c onspirators at a Red Roof I nn in Dece mber 2002. Although Martinez’s brief g ener ically touches upon some of the way s a defe ndant might be prejudice d, Martinez focuse s his argument on evidenc e prese nted reg arding the events at the Red Roof I nn. He sa

y s that included “hig hly

inflammatory” evide nce of cra ck coc aine pr oduction and firea rm possession, and the conspirac y char g e “impu t ed ” his “asse nt” to that conduct -6-Case No. 06- 4407

United States of America v . José C. Martinez, J r. notwithstanding his absenc e from the hotel. I n addition, the co-c onspirator exception to the hear say rule was used to “impute[] ” statements made by his co-c onspirators to Martinez, an d b ec au s e n o limit ing instruction w as g iven to the jury reg arding that testimony , it was substantially prejudicia l. No t o n e of these contentions reve als an abuse of discretion. First considering Martinez’s predic ate fac tual asser

tions, he has not shown that there wer e multipl e conspirac ies. “A defe ndant need not be an active participa nt in eve ry p h as e o f the conspirac y , so long as he is a party to the g ener al conspirator ial ag ree ment.” Uni t ed S t ates v. W arman , 578 F.3d 320, 333 (6th Cir. 2009) (quoting United States v. Gi b b s , 182 F.3d 408, 421 (6th Cir. 1999)) (interna l quotation marks omitted), cert. denied , 130 S. Ct. 1103 (2010); accord United States v. Hodges , 935 F.2d 766, 773 (6th Cir. 1991)); United States v. Christ ian , 786 F.2d 203, 211 (6th Cir. 1986). Martinez’s absenc e from the Red Roof I nn on the day s his brother was traff icking drug s there neither dictates nor even implies that he was not a member of the conspirac y , or that there wer e multipl e conspirac ies, or even that he was not awa

re the events took place

. Assuming for the sake of argument that Martinez had

no knowledg e of those events, he could still be found liable for conspirac y so long as the g overnme nt could prove bey ond a rea sonable doubt that he 1) ag ree d with one or more persons to distribute and possess with intent to distrib u t e, 2 ) intended to join the conspirac y , and 3) participated in the conspirac y . See U

nited States v. Graham , 622 F.3d 445, 449 ( 6th Cir. 2010) (citing United States

v. Paige , 470 F.3d 603, 608-09 (6th Cir. 2006)). The re cord c ontains ample evide nce to support a finding that Martinez did, in fac t, conspire with his brother. The indictment indic at es h e was observe d with his brother in a vehicle that was transporting marijuana , and he and his brother share d
customers. Recorde d conver sations introduced at trial and testimony heavily support the f in ding that -7-Case No. 06- 4407

United States of America v . José C. Martinez, J r. M ar t i n ez and J ohn wer e involved in various drug transac tions toge ther. The rec ord discloses th e extent of the conspirac y , too vast to fully desc ri b e h ere, and bear s numerous examples that

corr oborate the cha

rg e in the indictment that there was a single conspirac y . 4 Second, whether there was one or more conspirac ies, while informative, does not control our analy sis of the denial of the motion to sever . The g overnme nt c harg ed only one conspirac y . Even if there wer e multipl e conspirac ies, or if the fac ts of this case are susceptible to char acte rization a s

a “cha in” conspirac y as Martinez contends , t h at does not compel a finding that the district court abused its discretion in denying the motion to sever . Cf. United States v. Caporale , 806 F.2d 1487, 1 4 9 9

- 1 5 0 0 ( 1 1th Cir. 1986) (“[E]ven if the evidenc e arguably establishes multipl e con s p ir a c ie s , th e r e is no materia l varia

nce from an indictment char g ing a single conspirac y if a rea sonable trier of fac t could have found bey ond a reasonable doubt the ex istence of the s ingle conspirac y char g ed in the indictment.” (footnote omitted)). I f, hy pothetically , Martinez, his brother, and fathe r had been a part of one conspirac y while eac h was also a part of sever al other conspirac ies involving simil ar play ers and conspirator s, the court could proper ly deny a motion to sever beca use the evidenc e at trial would be substantially the same, and there fore the interests of judicial economy , eff

iciency , and speedy trial would be serve d by combining t h e trials. The rele vant inquiry to esca pe the otherwise pref

era ble joinder is into prejudice, a nd while pre

judice mig ht be shown if Mar tinez was not involved in a ny

I f, in fac t, Martinez and J ohn wer e known to unde rcut eac h other’s pr ices, that fa ct would 4 not nece ssarily indicate they wer e not conspiring toge ther. Although underc utting can g ive the impression of true competition to the buy er, it can also serve as a power ful sales tactic of a shrewd commerc ial operation. Fur thermore , it is entirely common for businesses to eng ag e in joint projec ts, simult aneously

collabora ting in some a

rea s and compe ting in other s. -8-Case No. 06- 4407

United States of America v . José C. Martinez, J r. conspirac y at all beca

use he would be notably less culpable than his co-de fenda nts, see Zafir o , 506 U.S. at 539, he is not aided in his attempt to persua de us of an abuse of discretion by arguing there

was more than one c onspiracy

. 5 Third, and dispositi vely , Martinez has failed to meet his burden of showing some specific , heig htened prejudice that resulted from the joint trial. The supposedly “inflam m atory” subjects raised in the Red Roof I nn encounte r—cr ack coca ine and firea rms—are simply not in o rd i n at el y prejudicia l. Similarly , we do not think that any statements admitted into evidence throug h the coconspirator exception wer e substantially prejudicia l: Martinez does not point to an y s tatement in particula r or explain why such admissions wer e unfairly prejudicia l bey ond noting his own absenc e from the hotel a

nd the eve nts that transpired ther e. J uries are presumed to be able to s o rt t h rough the evidenc e and to distinguish betwee n differ ent crimes and defe ndants in order t o d et er m i ne which counts as to which defe ndants the g overnme nt has proven beyond a rea sonable doubt, and which counts as to which defe ndants it has
not. Driver , 535 F.3d at 427 (citing Causey , 834 F.2d at 1287-88); Caver , 470 F.3d at 238 (citing United States v. W

elch , 97 F.3d 142, 147 (6th Cir. 1996)). Thus, the showing of substantial, undue, specific , compelling , or actua l prejudice is nece ssary beca use it maps those are as in which a jury is likely to be incapa

ble of conducting this sorting function. Driver , 535 F.3d at 427; Caver , 470 F.3d
at 238. Fur

ther, we are convince d that there was no heig htened prejudice partly beca use the jury in

To the ex tent Martine z ad v an ces the argument that there wer e mul tiple conspirac ies with 5 no overla p betwee n his conspirac y and his brother’ s conspirac y , we reje ct it. T h e go v ernme nt char g ed a single conspirac y , and for the reasons set forth below, the jury proved itself w illing and able to disce rn who wa s a par t of the conspira cy

and who wa s not. -9-Case No. 06- 4407

United States of America v . José C. Martinez, J r. Martinez’s ca se prove d itself capa ble of wa ding thr oug h the evidenc e: Martinez’s attorney argued that there was no single conspirac y . The j u ry was thoroug hly instructed on what is nece ssary to convict a defe ndant of conspirac y . The jurors wer e g iven a specific limit ing instruction that, while
not focuse d on the hear say rule, told them to distinguish between t h e d i ff erent char g es and defe ndants. I t is a dice y proposition to divine why a particular jury voted a particula r verdict, but it at least appea

rs here that the jurors wer e able to absorb and fol l o w t h o se instructions. Whil e Martinez was convicted on all counts, they specific ally found that he wa s n o t responsible for traff icking in marijuana

. J ohn was acquitted of one count, and J osé Sr. was acquitted o f t wo , incl u d i n g t he conspiracy char g e. Thus, it would seem that the j ury was not so overw helmed with the alleg edly

prejudicia l “cr ack a

nd guns” t estimony that it felt driven to convict all defe ndants of all counts, or even to convict al l d ef endants of t he conspiracy count. See Driver , 535 F.3d at 427 (“The re was no evidenc e that the jury was not able to heed the district court’s instruction to consider separ ately the evidenc e ag ainst eac h defe ndant . . . .”)

. Martinez has not shown substantial prejudice , and the district court did not clea rly abuse its discretion in deny

ing the motion to s ever . B. Sentence I n order to preva il on his argument that it was “proce durally unrea sonab l e” for the district
court not to g rant a downwar d varia nce based on his medical condition, we would ordinarily require Martinez to c lear the hig h bar of the plain-e rror

test, and for

two separ ate rea sons. First, Martinez did n o t ar gu e i n the district court that the medical condition war rante d a downwar d variance

.

-10-Case No. 06- 4407

United States of America v . José C. Martinez, J r. I nstead, his argument was that the seizure condition merited a downwar d departure

. Raising a basis 6 for a depar

ture will not act to prese rve an argument for a varia nce on that same basis. See United States v. Blue , 557 F.3d 682, 687 (6th Cir. 2009) (citing United States v. Santillana , 540 F.3d 428, 4 33 n.1 (6th Cir. 2008)) (re solving argument for depar ture based on substantial assistance but f in d in g argument for va

rianc e on same g rounds waive d); United States v. Vonner , 516 F.3d 382, 391 (6th Cir. 2008) (en banc) (“N or is i t t h e ca s e t h at a reque st for a varia nce in the district court by itself prese rves all proce dural and substantive challeng es to a sentenc e.” (empha sis in orig inal)); see also United States v. Grams , 566 F.3d 683, 686-87 (6th Cir. 2009) (explaining the differ ence betwee n a depar ture and a varia

nce)

. Since Martinez has not prese rved the varia nce argument, see Fe d. R. Civ. P. 51(b), we w ould normally revie w it for plain er

ror, see Fe d. R. Civ. P. 52(b); Vonner , 516 F.3d
at 385, 392 (“[W] e surely should apply plain-er ror revie w to any arguments for leniency that the defe ndant does not pre sent to the trial cour t.”). 7 Second, even if Martinez had argued for a varia nce in the district court based on his medical condition, Vonner instructs that without a spec i fi c objection in response to the Bostic question, a defe ndant’s “challeng e [ to] the adequacy of t he court’s explanation for the sentenc e” is subject t o

Martinez’s sentenc ing memoranda expli citly reque sted a depar ture (to the exclusion of any 6 varia nce argument), and his concluding para g raphs mere ly summarized what had come befor e and s u gges t ed a sentenc e. Even if his cursor y concluding para g raph wer e enoug h to prese rve the varia nce a rg ument for a

ppellate r eview, Vonner

compels applica

tion of the plain-er

ror standa rd. Had Martinez aimed his argument on appea l at depar ture, it would not have been succe ssful. 7 The district c ourt knew it c ould depar t downwar d, as it did so to e qualize the base offe nse level of the two brothers. The denial of a downwar d depar ture is revie wable only wher e “the district c ourt was una war e of, or di d not understand, its discretion to m ake suc h a depa rture,” Blue , 557 F.3d at 687, and this is not such a ca se. -11-Case No. 06- 4407

United States of America v . José C. Martinez, J r. plain-er ror review. Vonner , 516 F.3d at 386 (citing United States v. Bostic , 371 F.3d 865, 872-73 (6th Cir. 2004)); see Un i ted St ates v. W allace , 597 F.3d 794, 802 (6th Cir. 2010) (“Where a party has failed to object to a proce dural defe ct, we revie w claims of proce dural unrea sonablene ss for plain

err or.”) ; United St ates v. Simmons , 587 F.3d 348, 353-58 (6th Cir. 2009), cert. denie d , 1 3 0 S

. C t

. 2116 (2010). Her e, as in Vonner , the court asked defe nse counsel afte r delivering the sentenc e, “Any objections to the sentenc e? ” After the g overnme nt objected to the base- offe nse-leve l depar ture, his attorney responde d, “Only

those as alr eady

noted.” See V

onner , 516 F.3d at 386. 8 Howeve r, succe ssive panels of this court have stated that “we do not apply plain-er ror revie w unless a party asks.” United States v. Escalon-Ve lasquez , 371 F. App’x 622, 623-24 (6th Cir. 2010); accord United States v. W illiams , 641 F.3d 758, 763-64 (6th Cir. 2011); United States v. Keith , 363 F. App’x 377, 380 n.2 (6th Cir. 2010) (citing United States v. Black ie , 548 F.3d 395, 404 (6th Cir. 2008) (Sutton, J ., concur

ring )). I n those case s wher e we would apply plain-er ror revie w but for the absenc e of a reque st, the proce dural rea sonablene ss of a sentenc e is revie wed for abuse of discretion. Escalon-Ve lasquez , 3 7 1 F. App’x at 623-24. This prac tice has met with some criticism, see W illiams , 641 F.3d at 770-73 (Thapar, J ., concur ring ), and the presentation of t his case r evea ls an additional complication in its administration. Although the g overnme nt did not articulate a reque st

I n Vonner , the response was, “No, Your Honor,” but our observa tion that “this answe r did 8 not undermine Vonner ’s rig ht to appeal i s s u es he had ‘pre viously raised,’ ” implies that any distinction betwee n a neg ative answe r and a g ener ically aff irmative answe r is immaterial. 516 F.3d at 386; see Simmons , 587 F.3d at 358 (“We hold that Vonner require s the application of plain-er ror revie w to proce dural claims l ike this one, wher e a party answe rs the Bostic question in the aff irmative, but at such a high deg ree of g ener ality that the district court has no opportunity to corr ect its purported err or and the court of appea ls has been deprive d of a more detailed rec ord to revie w.”)

. -12-Case No. 06- 4407

United States of America v . José C. Martinez, J r. for plain-er

ror revie w in exactly those words, it cer tainly focuse d intently in its brief and at oral argument on the fac t that Martinez did not prese rve the varia nce contention in the district court. This is a far cry from the g overnme nt’s outrig ht defa ult on the alleg ation of err or at issue in Blackie

. See B l a ck ie , 548 F.3d at 404 (Sutton, J ., concur ring ) (“The g overnme nt never asked us to apply plain-er ror revie w to this claim

. . . . [T] he g overnme nt failed to respond at all to this alleg ation of

err or.” (empha sis in orig inal)). So, under the fac ts prese nted here , did the g overnment “ask” eff ectively enoug h for plain-er ror revie w? Which is the corr ect standard of revie w for this court to apply ? These are interesting questions, but for another day

. Martinez’s challeng e fails both unde r plain-er ror revie w and the more lenient abuse- of-discr etion standard. “In revie wing for proce dural

rea sonablene ss, a district court abuses its discretion if it ‘commit[s ] [a] signific ant proce dural err or

. . . .’” United States v. Johnson , 640 F.3d 195, 201 (6th Cir. 2011) (alter ation in orig inal) (quoting Gall v. United States , 552 U.S. 38, 51 (2007))

. Ex amples of unrea sonable proce dures include wher e the district court miscalculate s the g uideline rang e, does not consider the § 3553(a) fac tors, or relies on clea rly err oneous fa cts. Gall , 552 U.S. at 51. “I t is well establi s h ed t h at , as part of its sentenc ing proce dure, a court must consider all non-fr ivolous a

rg uments in suppor

t of a lower sentenc e. Howeve r, our c ases a re le ss than clea

r as to what must be the product of that consideration in order to allow for meaning ful appellate revie w of the c ourt’s re asoning .” United States v. Gunter , 620 F.3d 642, 645-46 (6th Cir. 2010) (c itation omitted) (citing United States v. Blackwell , 459 F.3d 739, 774 (6th Cir. 2006)); see United States v. Pritchard , 392 F. App’x 433, 442-43 (6th Cir. 2010) (Grif fin, J ., dissenting) (“ W

allace was wrong ly -13-Case No. 06- 4407

United States of America v . José C. Martinez, J r. decide d . . . beca

use it conflicts with the holding of [ Vonner ]

. . . .”); W allace , 597 F.3d at 805-06 (collec ting and compar ing case s both aff irming and reve rsing sentenc es “whe re the district judge has failed to fully explain the rea son for the sentenc e”)

. Fr om the confusion, and rely ing on the en banc decision in Vonner , we distil l that a district court need not formulaica lly consider and reje ct eac h and

ever y argument raised by a defenda nt, but must use a “func tional” approach. Gunter , 620 F.3d at 646 (6th Cir. 2010); accord United States v. Keller , 498 F.3d 316, 326-28 (6th Cir. 2007); see Rita

v. United States , 551 U.S. 338, 358 ( 2007) (upholding “brie f but le g ally sufficie nt” explanation of
sentenc e); Vonner , 516 F.3d at 386-87 (holding that sentenc ing court’s “brie f explanation” was not “idea l” beca

use “[i] t did not specific ally addre ss all of [t he defe ndant]’s arguments for leniency ,” but finding “any

potential err or wa s not ‘plain’”)

. On appea l, we must deter mine whether , based on the entirety of t h e s en t en cing transcr ipt and written opinion, if any , we are satisfied that the district court fulfilled this obligation. We are to focus less on what the transcr ipt reve als that the court said and more on what the tra

nscript re veals that the c ourt did. Gunter , 620 F.3d at 646; see U nited States v. Pe trus , 588 F.3d 347, 354- 55 (6th Cir. 2009) (c iting United States v. Lapsins , 570 F.3d 758, 773 ( 6th Cir. 2009)). Martinez has not shown a signific ant proce dural err or. The decision in United States v. Ive y , 307 F. App’x 941 (6th Cir. 2009), is illust rative. T h ere we considere d, albeit in an unpublished opinion, a case fac tually simil ar to Martinez’s. I vey argued on appea l “that the district court failed
to consider his reque st for a downwar d varia nce based on his medical conditions.” 307 F. App’x at 943. I vey primarily raised a differ ent argument at the sentenc ing hear ing, b u t in his written objections ref

err ed to cer

tain medical problems, and “the district c ourt did not specifica lly ref er to

-14-Case No. 06- 4407

United States of America v . José C. Martinez, J r. I vey ’s repor

ted medical conditions.” Id. Finding that the sentenc ing court ade q u at ely explained other sentenc ing fac tors, we wrote, “[w]hi le we might have briefly a d d r e s s e d Ivey ’s repor

ted medical conditions were we sitting a s the sentenc ing c ourt, we do not find that the di strict court abused i ts discretion here .” Id. at 943-44. We said that beca use I vey ’s medical conditions wer e unsubstantiated, and he had not prese nted rea sons why the conditions nece ssitated a lower sentenc e, the district court wa s not require d to expl icitly reje ct it. Id. at 944. Ive y ’s rea soning is persua sive. The district court indicated on the rec ord that it had revie wed Martinez’s sentenc ing memoranda the morning of the sentenc ing, and so must have been awa re of
t h e medical assertion. Neither Martinez nor hi s attorney raised any medical condition i n ea ch o f 9 their arguments at sentenc ing. Significa ntly , nowher e did Martinez prese nt an explanation for why 1 0 his seizure disorder merited a lower sentenc e, for example, by elabor ating upon why the Bur eau of Prisons could acc ommodate his seizures for e ight to ten y ear s but not for twenty

. The c ourt noted fo r t h e re co rd that it had, among other things, “looked clea rly and extensively ” at the § 3553(a) fac tors, including Martinez’s “bac kg round,” the “nee d for punishment,” to “prote ct the public,” and “for reha bilitation and training” befor e sente ncing Martinez. See 18 U.S.C. § 3553(a)(1) -(2)

.

The court was also awa

re of his seizure condition afte r witness i ng Martinez seize during 9 closing arguments at t rial. Consequently , and unli ke in Ive y , we do not question that t h e d i sorder was substantiated. A case involving complete s i l ence on the rec ord from counsel and the sentenc ing judge 1 0 stands in contrast to a case where counsel raises an issue at t he hearing and the court neverthele ss fails to addre ss it, a circ umstance that can lead to a finding of plain err or. See W allace , 597 F.3d at 802-03, 806; see also Simmons , 587 F.3d at 361 (“[O]ur case law and the Fe dera l Rules of Criminal Procedur e indicate that, as a proce dural matter, the district judge must g ener ally speak to arguments that are clearly

prese nted and in dispute.” ( emphasis adde d)). -15-Case No. 06- 4407

United States of America v . José C. Martinez, J r. Martinez’s undeveloped m edica l argument that some leniency should be aff

orded be cause of his s ei z u re d isorder was “conc eptually straig htforwa rd,” the judge mentioned the § 3553(a) fac tors, and the transcr ipt ref lects that the judge had looked at Martinez’s history and listened to and

rea d his arguments. Vonner , 516 F.3 d at 388; see Ive y , 307 F. App’x at 943-44; United States v. Carpenter , 359 F. App’x 553, 558 (6th Cir. 2009) (holding district court did not abuse its discretion by not vary

ing downwar d on acc ount of health problems). Although this may not have been an “idea l” s entenc ing hear ing, Vonner , 516 F.3d at 386, and “the judge migh t have said more,” Rita , 551 U.S. at 359, we cannot say that the district court abused its discretion by its silence on the topic of Mar tinez’s medical condition. III. CONCLUSION For the fore g oing r easons, we AF F IRM the sentenc e and judg ment of the district cour t.

-16-