Full Opinion (html_with_citations)

                                RECOMMENDED FOR PUBLICATION
                                Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                       File Name: 23a0278p.06

                    UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT



                                                             ┐
 UNITED STATES OF AMERICA,
                                                             │
                                    Plaintiff-Appellee,      │
                                                              >        No. 22-2009
                                                             │
 v.                                                          │
                                                             │
 KEJUAN PHARRELL CARTER,                                     │
                                 Defendant-Appellant.        │
                                                             ┘

                         Appeal from the United States District Court
                    for the Western District of Michigan at Grand Rapids.
                   No. 1:22-cr-00073-1—Jane M. Beckering, District Judge.

                            Decided and Filed: December 27, 2023

              Before: GILMAN, LARSEN, and NALBANDIAN, Circuit Judges.
                                _________________

                                            COUNSEL

ON BRIEF: Joanna C. Kloet, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Grand
Rapids, Michigan, for Appellant. Daniel T. McGraw, UNITED STATES ATTORNEY’S
OFFICE, Grand Rapids, Michigan, for Appellee.

       LARSEN, J., delivered the opinion of the court in which NALBANDIAN, J., joined in
full. GILMAN, J. (pp. 8–10), delivered a separate opinion concurring in the judgment.
                                      _________________

                                             OPINION
                                      _________________

       LARSEN, Circuit Judge.          Kejuan Pharrell Carter pleaded guilty to distributing
methamphetamine and was sentenced to 108 months’ imprisonment. Carter challenges the
procedural reasonableness of that sentence, arguing that the district court failed to address his
policy argument for a downward variance from the advisory Sentencing Guidelines range.
 No. 22-2009                           United States v. Carter                               Page 2


Carter is not entitled to relief because he either waived his right to bring this challenge or invited
the alleged error, and no manifest injustice will result from declining to consider his challenge.
We AFFIRM.

                                                    I.

       Carter sold approximately 320 grams of methamphetamine to an undercover officer in
2022. He was charged with three counts of distributing methamphetamine and, pursuant to a
plea agreement, pleaded guilty to one count. His advisory Sentencing Guidelines range was 108
to 135 months’ imprisonment. In his sentencing memorandum, Carter made two arguments for a
downward variance. First, Carter made a policy argument, arguing that the Guidelines’ focus on
drug quantity and purity improperly punished low-level offenders. Carter contended that the
purity of methamphetamine in average circulation has increased since the Guidelines’
implementation, so low-level offenders are receiving punishments meant for “kingpins.”
Second, Carter made an argument based on his life experience and characteristics. He argued
that a downward variance was warranted because of his traumatic upbringing and his willingness
to make this case a turning point in his life.

       At his sentencing hearing, Carter made only passing reference to his policy argument. He
focused primarily on his life experience and characteristics. The district court followed suit and
did not directly discuss Carter’s policy argument. Instead, after noting that the court had read
Carter’s sentencing memorandum and understood the Sentencing Guidelines as advisory, the
district court considered the relevant § 3553(a) factors and focused on Carter’s primary
argument, his life experience and characteristics. The district court denied Carter’s motion for a
downward variance, emphasizing his criminal history, and imposed a bottom-of-the-Guidelines
sentence of 108 months’ imprisonment.            After announcing that sentence, the district court
asked: “Pursuant to United States v. Bostic, is counsel satisfied that I’ve addressed on the record
all non-frivolous arguments asserted?” R. 33, Sentencing Tr., PageID 163. Through counsel,
both Carter and the government replied: “Yes, Your Honor.” Id. The district court then asked
whether there were any objections to the sentence. In response, Carter offered one objection,
unrelated to his policy argument, and the district court addressed that objection thoroughly.
 No. 22-2009                                United States v. Carter                                        Page 3


         Carter now appeals, asking that his sentence be vacated and his case be remanded for
resentencing on the ground that the district court erred by failing to address his policy argument.

                                                         II.

         Carter challenges the procedural reasonableness of his sentence. A judge’s consideration
of the defendant’s arguments at sentencing is procedurally reasonable when the record reflects
that the district court has considered those arguments and exercised its decision-making authority
in a reasoned manner. United States v. Simmons,
587 F.3d 348, 361
 (6th Cir. 2009) (citing Rita
v. United States,
551 U.S. 338, 356
 (2007)). While the district court’s explanation may be brief,
our case law suggests that “as a procedural matter, the district judge must generally speak to
arguments that are clearly presented and in dispute.”
Id.
 (citing United States v. Gale,
468 F.3d 929, 940
 (6th Cir. 2006)).

         We do not reach the question whether the district court adequately addressed Carter’s
policy argument because Carter either waived his right to bring this challenge or invited the
alleged error, and no manifest injustice will result from declining to consider his challenge.

                                                         A.

         The parties assume that plain-error review applies because Carter forfeited his claim that
the district court had not adequately addressed his policy argument.1                       Despite the parties’
characterization of the proceedings below, we conclude that waiver or invited error is the more
appropriate description. See United States v. Brown,
934 F.3d 1278, 1301
 (11th Cir. 2019)
(“Although the government has not argued that this was invited error, an appellate court may
apply the invited-error doctrine sua sponte.”); Jones v. United States,
689 F.3d 621
, 624 n.1 (6th
Cir. 2012) (“[W]e are not required to consider [waiver] sua sponte” and “decline to do so.”);
United States v. Mancera-Perez,
505 F.3d 1054
, 1057 n.3 (10th Cir. 2007) (raising invited error


         1
          Carter argues, alternatively, that reasonableness, rather than plain-error, review should apply because his
argument encompasses both substantive and procedural reasonableness. It is true that the plain-error standard does
not apply where a challenge is both substantive and procedural in nature. See United States v. Jeter,
721 F.3d 746, 756
 (6th Cir. 2013). But Carter’s argument that the district court failed to address his policy argument is purely
procedural, so plain error would be the standard of review had he merely forfeited his argument. See Gall v. United
States,
552 U.S. 38, 51
 (2007) (failure to adequately explain a sentence is a procedural error).
 No. 22-2009                         United States v. Carter                               Page 4


sua sponte because it would be a “perversion of the integrity and proper administration of justice
to allow a defendant affirmatively to support the reasonableness of his sentence before the
district court and then to challenge the reasonableness of that sentence on appeal”). That is so
because, rather than merely failing to raise an objection below, Carter makes the precise
argument on appeal that he disclaimed in the district court.

       We have described the doctrines of waiver, invited error, and forfeiture as lying on a
continuum.     United States v. Akridge,
62 F.4th 258, 263
 (6th Cir. 2023).         At one end is
waiver: “the intentional relinquishment or abandonment of a known right.” United States v.
Olano,
507 U.S. 725, 733
 (1993) (citation and internal quotation marks omitted). We do not
consider waived arguments because the waiving party has conceded that there is no error to
review. See Akridge,
62 F.4th at 263
. At the other end is forfeiture: “the failure to make the
timely assertion of a right.” Olano,
507 U.S. at 733
. We review forfeited arguments, but only
for plain error. Akridge,
62 F.4th at 263
. In between lies invited error: the “contribut[ion] in
some way to the district court’s error without intentionally relinquishing [a right].” United States
v. Montgomery,
998 F.3d 693, 698
 (6th Cir. 2021). “[W]e sometimes—albeit rarely—review
invited errors to prevent ‘manifest injustice.’” Akridge,
62 F.4th at 263
 (quoting United States v.
Woods,
61 F.4th 471, 481
 (6th Cir. 2023)).

                                                B.

       Carter seeks vacatur of his sentence on the ground that “the district court failed to address
a non-frivolous argument” in support of a variance. Appellant Br. at 12. But Carter either
waived his right to bring this challenge or invited the alleged error. At the sentencing hearing,
Carter, through counsel, specifically agreed that he was “satisfied that [the district court had]
addressed on the record all non-frivolous arguments asserted.” R. 33, Sentencing Tr., PageID
163. He cannot now protest that the trial court had not, in fact, addressed them.

       Some of our cases would treat Carter’s statement as waiver, in which case there would be
nothing for us to review. Because defense counsel “explicitly agreed” that the district court had
“addressed . . . all non-frivolous arguments” to counsel’s satisfaction, we might say that counsel
had concurred “with [the] judge’s proposed course of conduct,” to conclude the hearing without
 No. 22-2009                         United States v. Carter                               Page 5


saying more. United States v. Mabee,
765 F.3d 666, 673
 (6th Cir. 2014) (citation omitted). That
would be waiver. See United States v. Jackson,
995 F.3d 476
, 483–84 (6th Cir. 2021) (treating
claim that sentencing enhancement should not be applied as waived and not reviewable “at all”
where defense counsel stated that he “couldn’t have, in good faith, objected to” the
enhancement); see also United States v. Aparco-Centeno,
280 F.3d 1084, 1088
 (6th Cir. 2002)
(holding that objection to classification of offenses as aggravated felonies was waived where
defense counsel “explicitly agreed that they qualified as such”).

       On the other hand, we might treat Carter’s statement as having invited the district court’s
error. See Montgomery,
998 F.3d at 699
 (reinterpreting Aparco-Centeno as invited error rather
than waiver). United States v. Derringer,
844 F. App’x 802
 (6th Cir. 2021), is illustrative.
There, the district court asked the parties to address its calculation of the offense level. Id. at
810. In response, counsel said: “I have nothing to disagree with that . . . . [It] appears to be
correct.” Id. We called this response “an affirmative indication of agreement” sufficient to
invite error. Id. And we noted that counsel’s statement was “on par” with statements we had
previously treated either as waiver or invited error, such as “counsel’s saying he is ‘getting more
comfortable’ with something or saying that it is ‘appropriate.’” Id. (first quoting United States v.
Budd,
496 F.3d 517, 529
 (6th Cir. 2007); then quoting United States v. Parker,
837 F. App’x 341
, 348 (6th Cir. 2020)). Either way, Carter’s statement was more than forfeiture—the mere
“failure to make the timely assertion of a right.” Olano,
507 U.S. at 733
.

       United States v. Bostic,
371 F.3d 865
 (6th Cir. 2004), is not to the contrary. Bostic
established a “procedural rule, requiring 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.”
Id. at 872
. An
objection not raised in response to the Bostic question is merely forfeited.
Id.
 at 872–73. That is
because the Bostic question does not call for “plain, positive concurrence with the district court’s
conclusions.” Mabee,
765 F.3d at 672
. It broadly asks whether the parties object to the
sentence.

       In this case, the district court asked: “Pursuant to United States v. Bostic, is counsel
satisfied that I’ve addressed on the record all non-frivolous arguments asserted?”           R. 33,
 No. 22-2009                         United States v. Carter                               Page 6


Sentencing Tr., PageID 163. The Bostic preface is somewhat out of place because the question
that immediately followed was not the Bostic question, though that question came later. Unlike
the Bostic question, which calls broadly for any outstanding objections to the sentence, the
district court here narrowly addressed a single issue—whether counsel was satisfied that it had
addressed on the record all non-frivolous arguments asserted—and called for counsel’s
affirmative concurrence. Carter’s response was a specific concession addressing the precise
issue raised on appeal, which is sufficient to invoke waiver or invite error. See Mabee,
765 F.3d at 673
; see also United States v. Hall,
373 F. App’x 588, 592
 (6th Cir. 2010) (finding waiver
where parties “agree in open court with a judge’s proposed course of conduct” (citation and
alteration omitted)).

                                                C.

       It is not necessary to decide where Carter’s statement falls on the “hazy border” between
waiver and invited error. Montgomery,
998 F.3d at 698
. We do not consider waived arguments,
Akridge,
62 F.4th at 263
, and we review invited errors only when “failing to do so would result
in manifest injustice,” Montgomery,
998 F.3d at 699
. And in this case, no manifest injustice will
result from declining to consider Carter’s challenge.

       Whether review of an invited error is needed to prevent manifest injustice is largely left
to the discretion of the appellate court. See Montgomery,
998 F.3d at 699
. We “typically”
review an invited error when “the government and the defendant are equally at fault and the
defendant claims a violation of his constitutional rights.” Id.; see United States v. Barrow,
118 F.3d 482, 491
 (6th Cir. 1997) (reviewing invited error where the government stipulated to the
challenged instruction, which implicated constitutional rights); Derringer, 844 F. App’x at 810
(not reviewing invited error although the government endorsed the challenged enhancement
because the error was challenged as incorrect, not unconstitutional). But it is within the appellate
court’s discretion to review any invited error of “sufficient gravity.” Montgomery,
998 F.3d at 699
. In Montgomery, for example, the district court miscalculated Montgomery’s criminal
history category, an error that he invited.
Id.
 at 699–700. We reviewed that error because
Montgomery “was no more culpable for the error than the government,” and we stressed the
Supreme Court’s concern with the “gravity of Guidelines-calculation errors,” which could
 No. 22-2009                          United States v. Carter                               Page 7


“allow[] individuals to linger longer in prison than the law requires” on the basis of an “obvious
mistake[].”
Id.
 at 700 (quoting Hicks v. United States,
137 S. Ct. 2000, 2001
 (2017) (mem.)
(Gorsuch, J., concurring)).

       In this case, no manifest injustice will result from declining to consider Carter’s
challenge. The district court asked the government, as it did Carter, whether it had addressed on
the record all non-frivolous arguments asserted, and the government agreed that it had. In
context, that question is best understood as referencing each party’s own arguments. Regardless,
even if the district court was asking the government whether it had addressed Carter’s
arguments, the government is not equally at fault for the alleged error. In our adversarial system,
it is not the responsibility of one party to ensure that the arguments of another have been
addressed. Any fault attributable to the government is less than the equal fault involved in a
jointly stipulated jury instruction or an agreed-upon criminal history category. See Barrow,
118 F.3d at 491
; Derringer, 844 F. App’x at 810. Carter also does not allege that his constitutional
rights have been violated. See Derringer, 844 F. App’x at 810. And unlike a “relative[ly]
eas[y]” and “obvious” Guidelines miscalculation, Montgomery, 998 F.3d at 699–700 (citations
omitted), the district court’s consideration of sentencing arguments is dynamic. The strategic
decisions of the parties, including which arguments to emphasize, reasonably influence the
district court’s response.

       Here, Carter argues that the district court failed to address his policy argument. But at his
sentencing hearing, Carter gave scant attention to his policy argument, instead focusing on his
life experience and characteristics. Then Carter, through counsel, specifically agreed that the
district court had addressed on the record all non-frivolous arguments asserted. In so doing,
Carter either waived his right to complain that the district court had not done so, or he invited the
alleged error by encouraging the court to believe that it need say no more. And no manifest
injustice will result from declining to consider his challenge.

                                                ***

       For the reasons set forth above, we AFFIRM.
 No. 22-2009                         United States v. Carter                               Page 8


                                      __________________

                                       CONCURRENCE
                                      __________________

       RONALD LEE GILMAN, Circuit Judge, concurring in the judgment. I concur in the
conclusion reached by the majority, but I believe that the ruling against Carter should not be
based on either waiver or invited-error. Rather, I believe that we should affirm the judgment of
the district court because it did not plainly err in failing to address Carter’s policy-based
argument regarding his sentence.

       Carter contends that the district court’s failure to address his policy-based argument (that
the Sentencing Guidelines excessively focus on drug quantity and purity) constitutes reversible
error under the plain-error standard of review. But after imposing the sentence, the district judge
asked: “Pursuant to United States v. Bostic, is counsel satisfied that I’ve addressed on the record
all non-frivolous arguments asserted.” Carter’s counsel then responded: “Yes, Your Honor.”

       In light of the above exchange, the majority concludes that Carter’s policy-based
argument is either waived or barred by the doctrine of invited-error. I firmly believe that the
statement by Carter’s counsel cannot reasonably be construed as a waiver of Carter’s policy-
based argument. The majority correctly notes that waiver is the “intentional relinquishment or
abandonment of a known right.” Maj. Op. at 4 (quoting United States v. Olano,
507 U.S. 72
, 733
(1993)). In the present case, the district court expressly stated that its question was “[p]ursuant
to United States v. Bostic” immediately before asking a question that, as the majority
acknowledges, “was not the Bostic question.” Maj. Op. at 6. I fully agree with the majority that
the invocation of Bostic was “somewhat out of place,” id., which makes one hard-pressed to
characterize counsel’s response as an intentional relinquishment or abandonment of Carter’s
right to object. The doctrine of waiver, therefore, is simply beyond the pale based on the record
before us.

       On the other hand, if the government had raised the invited-error doctrine in its brief on
appeal, I would fully agree with the majority that Carter’s counsel invited the error. See Maj.
 No. 22-2009                             United States v. Carter                               Page 9


Op. at 5. The problem in this case, however, is that the government did not argue that Carter
either waived his policy-based argument or invited the district court’s error.

        This court has held that a party’s failure to raise an argument on appeal constitutes either
a waiver or a forfeiture. Compare United States v. Russell,
26 F.4th 371
, 374–75 (6th Cir. 2022)
(Nalbandian, J.) (recognizing that “[a] forfeiture is ‘the failure to make the timely assertion of a
right’ whereas a waiver is ‘the intentional relinquishment or abandonment of that right,’” and
concluding that “to waive the argument, the government must either (1) take some step to
‘expressly abandon’ it or (2) fail to raise it in its first brief on appeal.”) (citations omitted), with
Courser v. Allard,
969 F.3d 604, 621
 (6th Cir. 2020) (holding that parties forfeit arguments not
raised in an opening appellate brief).

        The government did not argue in its appellate brief that Carter waived his policy-based
argument or that he invited the error, but instead asserted that the plain-error standard of review
applies because Carter’s counsel failed to object pursuant to United States v. Bostic,
371 F.3d 865
 (6th Cir. 2004). Based on this court’s precedents, the government has therefore waived (or
forfeited) the argument that Carter either (1) waived his policy-based argument before the district
court, or (2) invited the error. I thus do not believe that we should decide this case on the basis
of Carter’s alleged waiver or the invited-error doctrine when the government has raised neither
argument.

        But this still leaves us with what the government did argue on appeal—plain error.
I would affirm the district court’s sentence on the basis that the court did not plainly err in light
of defense counsel’s agreement at the sentencing hearing that the court had “addressed on the
record all non-frivolous arguments asserted.”         To establish plain error, Carter “must show
(1) error (2) that was obvious or clear, (3) that affected [the] defendant’s substantial rights and
(4) that affected the fairness, integrity, or public reputation of the judicial proceedings.” United
States v. Wallace,
597 F.3d 794, 802
 (6th Cir. 2010).

        True enough, this court in Wallace held that a district court’s “failure to even so much as
acknowledge [an] argument constitutes an error that was obvious or clear.”
Id. at 806
. But
unlike Carter’s counsel, the defendant’s counsel in Wallace played no part in the district court’s
 No. 22-2009                         United States v. Carter                              Page 10


failure to address the defendant’s nonfrivolous arguments. Here, by contrast, defense counsel
specifically acknowledged that the court had addressed all nonfrivolous arguments asserted by
Carter. Under such circumstances, there is simply no error, much less one that was “obvious or
clear.” See
id.
 I would therefore hold that the district court did not plainly err when it failed to
address Carter’s policy-based argument.