NOT RECOMMENDED FOR FULL
- TEXT PUBLICATION File Name: 14a0198n.06
No. 13

- 3274
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA , Plaintiff

- Appellee ,

v.
BENNIE OVERTON , Defendant

- Appellant

. ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO

OPINION

BEFORE: DAUGHTREY, SUTTON, and DONALD, Circuit Judges.
BERNICE B. DONALD, Circuit Judge. Defendant

- Appellant, Bennie Overton, appeals his conviction and sentence for one count of carjacking, 18 U.S.C. § 2119 , one count of using, carrying, or brandishing a firearm in furtherance of a crime of violence, 18 U.S.C. § 924(c) , and one count of being a felon in possession of a firearm , 18 U.S.C. § 922(g)

. On appeal, Overton contends that the district court (1) deprived him of his right to present a defense, (2) improperly admitted a hearsay statement as an excited utterance, (3) improperly allowed the Government to introduce into evidence a .45 caliber pistol , (4) improperly denied his motion to
suppress, (5) im properly instructed the jury as to the elements of carjacking, and ( 6 ) imposed a procedurally unreasonable sentence. Because all of Overton’s arguments lack merit , we AFFIRM the judgment of the district court.No. 13

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- I. Background

Sometime a fter two o’clock in the morning on April 29, 2012, Anthony Gore was sitting in his 2004 Nissan Maxima with the car door open waiting on a friend, Gerald Pas c hal, to pick him up. T he defendant, Bennie Overton, approached Gore asking to borrow a cigarette lighter. After Gore told Overton that he did n o t have a cigarette lighter, Overton became more aggressive , walked closer to the car, and eventually pulled what appeared to be a firearm from his jacket. Gore testified that Overton then placed the firearm to his temple and or dered him to move to the passenger side of the car. Gore complied with Overton’s commands, and Overton sat in the driver’s seat with the muzzle of the firearm touching Gore’s side.
Once Gore was in the passenger seat and Overton in the driver’s seat, Ove rton demanded that Gore give Overton his keys and phone. Gore attempted to stall, hoping that Paschal would arrive to pick him up, but Overton became even more aggressive. In response, Gore surrendered his phone and keys. Gore testified that he remember ed his passenger door was unlocked during the confrontation. Fearing that Overton might k idnap or sho o t him if he did not get away immediately, Gore opened the passenger door and ran away as fast as he could. Overton drove
away in Gore’s Nissan, travelin g in the opposite direction.
Shortly ther e after, Gore’s friend Paschal arrived to pick him up. Paschal testified that
Gore was running across the str eet when the two met, as well as that G ore was “kind of frantic and stuttering” when he g ot into the car. As Paschal was trying to ascertain what had happened to his friend, Gore made two statements to Paschal: “I just got robbed. Take me to the police department” and “ Man, he put a gun to my head man.” Paschal then took Gore to the police department to f

ile a report.No. 13

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- Five days later, on May 4, 2012, Cincinnati Fire Department personnel (“EMS personnel”) received a 911 call for emergency medical assistance, relating to a “reported unconscious person in a vehicle at the gas pumps” of a gas station on G ilbe rt Avenue. Upon arriving at the gas station, the EMS personnel saw their patient (later identified as Overton) leaning back in the driver’s seat of a silver sedan (later identified as Gore’s 2004 Nissan Maxima). The patient was “in the driver’s seat, eyes closed, unresponsive, the doors closed.” After blowing the fire truck’s air horn and administering ammonia inhalants in unsuccessful attempts to rouse Overton , the EMS personnel employed a sternum rub technique to wake him

. Upon waking, Overton seemed confused and disoriented and grabbed the shirt of the firefighter who administered the sternum rub. While the EMS personnel were talking to Overton and attempting to ascertain his condition, he shifted his legs in his seat a nd exposed the handle of a .45 caliber pistol. At this point, the EMS personnel began to get nervous for their safety and the safety of those around them . They accordingly removed Overton from the car and secured the pistol.
On June 6, 2012, a grand jur y indicted Overton for the following crimes: one count of carjacking , one count of using, carrying, or brandishing a firearm in furtherance of a crime of violence, and one count of being a felon in possession of a firearm

. Overton filed a motion to
suppr ess the pistol discovered by the EMS personnel , which t he district court denied after an evidentiary hearing

. Overton then pled guilty to the felon in possession of a firearm count on August 13, 2012 , but proceeded to a jury trial on the carjacking and br andishing offenses. The trial took place over three days in August of 2012, and the jury returned guilty verdicts on both remaining counts. T he district court then sentenced Overton to a within

- Guidelines term of 199No. 13

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- months’ imprisonment, five years of s upervised release, a $1,000 fine, and the forfeiture of various items. Overton filed a Notice o f Appeal the day after the district court entered judgment , and this appeal followed.

II. Right to Present a Defense
Overton first argues that the district court denied his constitutional right to present a defense. Appellant Br. at 8

- 12. The defense’s theory of the case was that Overton used a BB gun, rather than an actual firearm, when he forced the victim , Gore, fro m his car. Id. at 8. During Overton’s cross

- examination, the Government asked him about the location of the BB gun. The BB gun was one of several items of evidence seized from Overton’s residence that the parties agreed not to use at trial. In response , Overton’ s counsel attempted to introduce a
p hotograph of the BB gun that he received from the Government during discovery in order to prevent the jury from drawing the inference that Overton lied. The district court ruled that allow ing Overton to introd uce a picture of the BB gun would open the door for the Government to introduce evidence of the other items seized from his residence. Overton a lle ge s that this ruling deprived him of his right to present a defense.
The parties dispute the standard of re view that should apply to the district court’s ruling. Overton argues for de novo review, Appellant Br. at 8, while the Government asserts that abuse of discretion is the proper standard , Appellee Br. at 16

. The Government is correct that “ w e review all challenges to district court evidentiary rulings, including constitutional challenges, under the abuse of discretion standard .” United States v. Blackwell , 459 F.3d 739 , 752 (6th Cir. 2006). But “the abuse of discretion standard is not at odds with de no vo interpretation of the Constitution inasmuch as [a] district court does not have the discretion to rest its evidentiaryNo. 13

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- decision on incorrect interpretations of the Constitution.” Id. (citing United States v. Baker , 458 F.3d 513, 516 (6th Cir. 2006); Un ited States v. Johnson , 440 F.3d 832, 842 (6th Cir. 2006)). “A district court abuses its discretion when it relies on erroneous findings of fact, applies the wrong legal standard, misapplies the correct legal standard when reaching a conclusion, or makes a clear error of judgment.” Schlaud v. Snyder , 717 F.3d 451, 457 (6th Cir. 2013) (quoting Randleman v. Fid. Nat’l Title Ins. Co. , 646 F.3d 347, 351 (6th Cir. 2011)) (internal quotation marks omitted).

“ Whether rooted directly in the Due Process Clau se of the Fourteenth Amendment or in the Compulsory Process or Con frontation clauses of the Sixth Amendment , the Constitution guarantees criminal defendants ‘ a meaningful opportunity to present a complete defense. ’ ” Crane v. Kentucky , 476 U.S. 683, 690 (1986) (citations omitted) (quoting California v. Trombetta , 467 U.S . 479, 485 (1984)). The Supreme Court has “found the exclusion of evidence to be unconstitutionally arbitrary or disproportionate only where it has infringed upon a weighty interest of the accused.” United States v. Scheffer , 523 U.S. 303, 308 (1998) (ci ting Rock v. Arkansas , 483 U.S. 44, 56 (1987)). Accordingly, e ven if the district court erroneously excluded evidence , we will reverse only if “the omitted evidence [evaluated in the context of the entire record] creates a reasonable doubt that did not ot herwise exist.” Blackwell , 459 F.3d at 753 ( brackets in original) (quoting Washington v. Schriver , 255 F.3d 45, 57 (2d Cir. 2001)) (internal quotation marks omitted)

.
Overton cannot overcome this burden because the parties negated the impact of any error the district court may have made with respect to the evidentiary ruling by entering into a stipulation

. The stipulation stated , “A black BB gun pistol was recovered from Mr. Overton’sNo. 13

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- apartment.” Overton’s counsel only sought to introduce the photograph of the BB gun to negate a possible inference by the jury that Overton lied about the Government ’s possession of the BB
gun. Even assuming that the lack of any defense evidence on this point c ould h ave created reasonable doubt where it did not otherwise exist, Blackwell , 459 F.3d at 753 , the parties’ stipulation served the same purpose as the photograph. Following the district court’s reading of
the stipulation, the jury had no basis to infer that O verton lied about this issue during his testimony. We therefore cannot say that the district court ’s e videntiary ruling deprived Overton of his constitutional right to present a defense.

III. Admission of the Hearsay Statement

Overton next argues that the district court , through the testimony of witness Pas c hal, erroneously admitted into evidence as an excited utterance Gore’s hearsay statement, “Man , he put a gun to my head man . ” Federal Rule of Evidence (“FRE”) 803 enumerates exceptions to the rule against hearsay regardless of whether the declarant is available as a witness. Fed. R. Evid.
803. FRE 803(2) defines an excited utterance as “[a] statement relating to a startling event or condition, made while the decla rant was under the stress of excitement that it caused.” Fed. R. Evid. 803(2). The district court found that Gore’s statement met this standard, making Pas c hal’s
recitation of the statement admissible.

W e review the district court’s evidentiary ruling for abuse of discretion. Blackwell , 459 F.3d at 752. Even if the district court abuse d its discretion, however, w e will reverse a guilty verdict due to the erroneous admission of hearsay evidence only if t he error affects the defendant’s substantial rights. See United States v. Beverly , 369 F.3d 516, 540 (6th Cir. 2004) (citing United States v. Bonds , 12 F.3d 540, 554 (6th Cir. 1993))

.No. 13

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- We have establish ed three requirements that a statement must meet to qualify as an excited utterance under FRE 803(2) : “First, there must be an event startling enough to cause
nervous excitement. Second, the statement must be made before there is time to contrive or misrepresent. And, third, the statement must be made while the person is under the stress of the excitement caused by the event.” United States v. Davis , 577 F.3d 660, 669 (6th Cir. 2009) (quoting Haggins v. Warden, Fort Pillow State Farm , 715 F.2d 1050, 1057 (6th Cir. 1983)) (inter nal quotation marks omitt ed).

The record indicates that Gore’s statement to Pas c hal meets the first and third requirement s for an excited utterance

. Gore experienced “an event s t artling enough to cause nervous excitement,” Fed. R. Evid. 803(2), because Overton forced Gore from h is car with what appeared to Gore to be a loaded weapon. Cf . U nited States v. Arnold , 486 F.3d 177, 184 (6th Cir. 2007) (en banc) (“ As to the first requirement, being threatened by a convicted murderer wielding a semi

- automatic handgun amounts to a startl ing event that would prompt at least nervous excitement in the average individual, if not outright trauma. ”). Gore was still “under the stress of the excitement caused by the event,” Fed. R. Evid. 803(2), because he was “shocked”
and still “frantic and st uttering” when Pas c hal picked him up in the middle of the road following the event

. Cf

. Arnold , 486 F.3d at 184 (“ Throughout the call, t he operator had to tell [the declarant] to ‘calm down’ and ‘quit yelling’ and often had difficulty understanding her frantic pleas for help .”).

Overton a lleg es that Gore’s statement was not “made before there [was] time to contrive or misrepresent , ” Davis , 577 F.3d at 669 , because it was made after the carjacking was over , App ellant Br. at 13. This argument is without merit. Our precedent s do not require a declarantNo. 13

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- to make a statement during the course of a startling event. Arnold , 486 F.3d at 185 (“[O]ur cases do not demand a precise showing of the lapse of time between th e startling event and the out

- of

court statement.”)

. Instead, we only require “ [ t ] estimony that the declarant still appeared

‘ nervous ’ or ‘ distraught ’ and that there was a reasonable basis for continuing [ to be ] emotional [ ly ] upset.” Haggins , 715 F.2d at 1058 (quoting McCormick’s Handbook of the Law
of Evidence § 297 at 705

- 06 (2d ed. 1972)) ; see also United States v. McCullough , 150 F. App’x 507, 510 (6th Cir. 2005) (applying the excited utterance excepti on to statement made “not

. . . longer than two

- and

- a - half hours” after startling event)

. Pas c hal and Gore both testi fied that Gore was still nervous and distraught following the theft of his car. T he re was therefore a reasonable basis for admitting Gore’s state ment, and t he district court p roperl y overruled Overton’s hearsay objection to Pas c hal ’s recitation of Gore’s statement

.
IV. Admission of the Firearm
Overton next argues that the district court erred when it allowed the Government to introduce into evidence the .45 caliber pistol recovered from Gore’s stolen car on May 4, 2012. Appellant Br. 16

- 18. Overton alleges that the .45 caliber pistol was irrelevant under FRE 401, excludable under the FRE 403 b alancing test as unfairly prejudicial , and excludable under FRE 404(b) , which deals with evidence of other crimes. See Fed. R. Evid. 401, 403, 404(b). We review the F R E 401 and 403 issue s for abuse of discretion. Blackwell , 459 F.3d at 752. Because Overton raises the F R E 404(b) issue for the first time on appeal, we review i t for plain error. United States v. Aguirre , 605 F3d 351, 356 (6th Cir. 2010).

F R E 401 provides: “Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) t he fact is of consequence inNo. 13

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- det ermining the action.” Fed. R. Evid. 401. T he pistol ’s presence in Gore’s stolen car tend s to make it more probable that Overton took Gore’s car with the conditional intent to kill or cause serious bodily harm, an el ement of the carjacking offense charged in count one of the indictment

. The pistol ’s presence also tend s to make it more probable that Overton brandished a firearm during the commission of the carjacking offense, an element of the brandishing offense charged in count two of the indictment. Ac cordingly, the district court did not abuse its discretion when it found that the pistol was relevant evidence.

F R E 403 provides: “ The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of t he following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. ” Fed. R. Evid. 403. Overton argues that the danger of unfair prejudice substantially outweighed the probative value of the .4 5 caliber pistol. As discussed above, however, t he probative value of the pistol was high; it was relevant to elements of both counts of the indictment on which Overton went to trial

. Overton’s counsel objected to the introducti on of the pistol at trial on the following basis: “ [T] here is not [sic] evidence to tie its use to the robbery.” The district court overruled that objection because “it is probative in terms of the overall offense, and it’s relevant and material.” Accor dingly, the district court did not abuse its discretion when it found that the probative value of the pistol was not substantially outweighed by the danger of unfair prejudice.

F R E 404(b) provides: (b) Crimes, Wrongs, or Other Acts.No. 13

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-

(1) Prohibited Uses

. Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character. (2) Permitted Uses; Notice in a Criminal Case. This evidence may b e admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must: (A) provide reasonable notic e of the general nature of any such evidence that the prosecutor intends to offer at trial; and (B) do so before trial

-- or during trial if the court, for good cause, excuses lack of pretrial notice. Fed. R. Evid. 404(b). This rule pr ohibit s the use of “propensity evidence” to show that a defendant acted in conformity with any particular character trait on a specific occasion. Flagg v. City of Detroit , 715 F.3d 165, 175 (6th Cir. 2013). The Government , however, did not introduce the pistol into evidence to prove that Overton acted in accordance with his character. Rather, the Government introduced the pistol because it established an element of both offenses charged in the indictment for which Overton was on trial. Id. (“ Rule 404(b) does not apply to evidence that is ‘intrinsic to’ or ‘ inextricab ly intertwined with evidence of’ the central alleged wrong. ”). The district court therefore did not commit plain error by failing to exclude the .45 caliber pistol as improper FRE 404(b) evidence.

V. Denial of the Motion to Suppress

Overton next argues that the district court erred when it denied his motion to suppress the .45 caliber pistol. Appellant Br. at 19

- 23. The district court denied the motion, finding , among other things, that Overton lacked standing to challenge the search because he had no legitimate expectation of privacy in the stolen vehicle. We agree.No. 13

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- When reviewing a district court’s denial of a motion to suppress, “[w]e consider the evidence in the light most favorable to the [Government] and review factual findings for clear

error. ” United States v. Young , 707 F.3d 598, 602 (6th Cir. 2012). A factual finding is clearly erroneous when, “ although there may be evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed .” Id. (quoting United States v. Smith , 594 F.3d 530, 535 (6th Cir. 2010)) (internal quotation marks omitted). This Court also “reviews the evidence in the light most likely to support the district court’s conclusion.” United States v. Galaviz , 645 F.3d 347, 352 (6th Cir. 2011) (quoting United States v. Adams , 583 F.3d 457, 463 (6th Cir. 2009)) (internal quotation marks omitted).
Here, the district court correctly concluded that Overton lacked standing to challenge the search of Gore’s vehicle. Under this Court’s decision in United States v. Hensel , 672 F.2d 578 (6th Cir. 1992), a person who knowingly possesses a stolen car has no legitimate expectation of privacy in that ve hicle. Id. at 579

. Because Overton s t ipulat ed at the suppression hearing that the car was stolen , he lacks standing to challenge the search. Hensel , 67 2 F.2d at 579 (“We agree with the district court that the defendant lacked standing to challenge the s earch of the truck because he had no legitimate expectation of privacy in the stolen vehicle or its contents.”)

. T he district court therefore did not err when it denied Overton’s motion to suppress to .45 caliber pistol

. VI. Jury Instructions

Overton ne xt argues that the district court’s instructions to the jury on the third and fourth elements of the carjacking offense require reversal because they were confusing and did not

accu r ate ly state the law. Appellant Br. at 24

- 27. We typically review a chall enge to the districtNo. 13

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- court’s jury instruction s for abuse of discretion. United States v. Kelsor , 665 F.3d 684, 695 (6th Cir. 2011)

. Under the abuse of discretion standard, we will reverse “only if the instructions, viewed as a whole, were confusing, misleading, or prejudicial.” Kelsor , 665 F.3d at 695 (quoting United States v. Harrod , 168 F.3d 887, 892 (6th Cir. 1999) ) (internal quota tion marks omitted). The defendant must suffer actual prejudice before reversal is required. Id.

When the defendant fails to make a specific object ion to a proposed instruction, however,

o u r r eview is for plain error. United States v. Semrau , 693 F.3d 510, 526

- 27 (citing Fed. R. Crim. P. 30(d))

. Because Overton’s counsel failed to make a specific object ion to the district court’s instruction on the third element of carjacking, we review that portion of the instruction s for plain error. Under the plain error standard, we will reverse only if the district court abused its discretion and “ the error seriously affected the fairness, integrity, or public reputation of the judicial proceedings.” Semrau , 693 F.3d at 528 (quoting United States v. Aaron , 590 F. 3d 405, 408 (6th Cir. 2009 ) ) (internal quotation marks omitted).
On appeal, Overton objects to the following portion of the district court’s instruction on the third element of carjacking: “The government does not have to prove that the defendant’s
behav ior caused or could have caused terror or panic, but it must show that an ordinary person would have feared bodily harm because of the defendant’s behavior.” Overton argues that this
instruction is an incorrect statement of the law and that it altered the mens rea element of the offense. This argument is without merit in light of the fact that Overton’s counsel submitted the exact same language to the district court as a proposed instruction. Even assuming Overton could show an abuse of discretion in the se instructions, he cannot demonstrate that any error

“ seriously affected the fairness, integrity, or public reputation of the judicial proceedings

. ”No. 13

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- Semrau , 693 F.3d at 528 (quoting Aaron , 590 F.3d at 408 ) (internal quotation marks omitted)

. The district court’s instruction on the third element of the carjacking offense accordingly was not plain error.

As to the fourth elemen t of carjacking, Overton objects to the following portion of the district court’s instruction: “The requisite intent can be shown by evidence of an intent to use a knife, a baseball bat, brute force, or any other means that indicates an ability and willingness to cause serious bodily harm or death if not obeyed.” Overton attempts to classify this language as the Govern ment’s legal theory, and he claims there is no evidence in the record to support such a theory. Appellant Br. at 26. This argument is likewise without merit. The district court’s instruction parallels nearly word

- for

- word the language this Court used in United States v. Fekete , 535 F.3d 471, 480 (6th Cir. 2008) (“ The requisite mens rea can be shown by evidence of an intent to use a knife, a baseball bat, brute force, or any other means that indicates an ability and willingness to cause serious bodily har m or death if not obeyed. ”). This instruction properly stated the law and could not have confused the jury because the context of the instructions as a whole reveal that knife, bat, and brute force are simply examples to aid the jury in understanding what constitutes conditional intent to kill or cause serious bodily harm. The district court’s
instruction on the fourth element of the carjack ing offense therefore was not an abuse of discretion.

VII. Procedural Reasonableness of Sente nce
Finally, Overton argues that the district court committed procedural error at his sentencing by failing to address one of his objections and by failing to make proper findings under 18 U.S.C. § 3553(a). Appellant Br. at 28. Because Overton did not raise these proceduralNo. 13

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- objections in the d istrict court, we review his sentencing challenge for plain error. United States
v. Vonner , 516 F.3d 382, 385 (6th Cir. 2008) (“ If a sentencing judge asks [whether the parties have objections to the sentence] and if the relevant party does not object, then plain

- error review applies on appeal to those arguments not preserved in the district court. ” (citing United States v.
Bostic , 371 F.3d 865, 872

- 73 (6th Cir. 2004)) ). Plain error review in this context requires
Overto n to show: “(1) error (2) that ‘was obvious or clear,’ (3) that ‘affected defendant’s substantial rights, and (4) that ‘affected the fairness, integrity, or public reputation of the judicial proceedings. ’ ” Id. (quoting United States v. Gardiner , 463 F.3d 445, 459 (6th Cir. 2006) )

. A district court commits procedural error during sentencing when it “ fail [s] to calculate (or improperly calculat[es] ) the Guidelines range, treat [s] the Guidelines as mandatory, fail [s] to consider the § 3553(a) factors, selec t [s] a sentence based on clearly erroneous facts, or fail [s] to adequately explain the chosen sentence .” Gall v. United States , 552 U.S. 38, 51. Additionally, “[w]hen the defendant or prosecutor ‘ presents nonfrivolous reasons for imposing a different

sen tence,’

. . . a sente ncing judge should address the ‘parties’ arguments’ and ‘ explain why h e has rejected those arguments.’” United States v. Peters , 512 F.3d 787, 789 (6th Cir. 2008) (citing Rita v. United States , 551 U.S. 338, 357 (2007)).
Here, the district court found that the firearms located in Overton’s apartment were
rel e vant to the charge of felon in possession of a firearm but irrelevant to the remaining charges

. Overton argued at sentencing that this was inconsistent. 1 On appeal, Overton al leges that the

1 Despite the fact that Overton’s counsel raised this objection at sentencing, our review is for plain error. As required by our decision in Bostic , 371 F.3d 865, 872

- 73 , the district court asked at the conclusion of the sentencing hearing whether the parties had any objections to the sentence . Overton’s counsel failed to object to the district court’s alleged failure to rule on hisNo. 13

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- district court “wholly failed to address Overton’s inconsistencies argument.” Appellant Br. at 30. This statement misrepresents the record , and the sentencing transcript plainly contradicts it

. After Overton’s counsel objected based on in consistency , the Government responded with its argument in favor of considering the firearms relevant conduct to count three of the indictment. Overton’s counsel made a final argument that the firearm possession s occurred in separate locations at separate times, and then the district court ruled on the objection: “It doesn’t make any difference. They are still firearms in the possession of a felon. Well, anyway, I’m going to overrule the objection.” Because the district court addressed Overton’s argume nt and explained its reasons for overruling the objection, the lower court did commit any plain procedural err or on this point

. The sentencing transcript similarly contradicts Overton’s assertion that the district court did not consider t he 18 U.S.C. § 35 53(a) factors

. 2 The district court explicitly mentioned the defendant’s history and characteristics, the particulars of the offense, the victim , promoting respect for the law, and deterrence

. Although this discussion of the § 3553(a) factors was not perfect, we do not require district courts to conduct a “ ritual incantation ” of the factors. United States v. Phillips , 516 F.3d 479, 488 (6th Cir. 2008). Furthermore, “[a] less lengthy explanation
will suffic e for a within

- Guidelines sentence when ‘the record makes clear that the sentencing
previous objection. Accordingly, plain error review applies on appeal

. See Vonner , 516 F.3d at 385

. 2 The factors contained in § 3553(a) are as follows: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed to reflect the seriousness of the offense, to pr omote respect for the law, to provide just punishment, to afford adequate deterrence to criminal conduct, to protect the public from further crimes committed by the defendant, and to provide the defendant with needed educational or vocational training or m edical care; (3) the kinds of sentences available; (4) the sentencing range established by the guidelines; (5) any relevant policy statement from the Sentencing Commission; (6) the need to avoid unwarranted disparities in sentencing among similarly situate d offenders; and (7) the need to provide restitution to the victim of the offense.No. 13

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- judge considered the [defendant’s] evidence and arguments.’” United States v. Lapsins , 5 70 F.3d 7 58 , 774 (6th Cir. 2009) (second alteration in original) (quoting Rita , 551 U.S. at 359). Because the district court did in fact discuss the § 3553(a) factors while handing down a within

Guidelines sentence , i t did not commit any plain procedural error on this point.

VI I I. Conclusion
For the foregoing reasons, we AFFIRM the ju dgment of the district court.