Regardless of its timeliness, the Motion is without merit. Defendant's cited authority, United States v. Swehla, 442 F.3d 1143 (8th Cir 2006), does not support the proposition that the court must strike the PSIR in this case. Swehla holds that the court must not consider objected to portions of the PSIR that the government failed to prove.

The cases from these circuits cited in Sevilla did not address the same question at issue in Sevilla, i.e., whether a defendant must object to the district court's explanation of the sentence to preserve the issue for appeal. See United States v. Dale, 498 F.3d 604, 610 n.5, 611-12 (7th Cir. 2007) (whether defendant must object to substantive reasonableness of sentence to preserve issue for appeal); United States v. Swehla, 442 F.3d 1143, 1145 (8th Cir. 2006) (whether defendant must object to substantive reasonableness of sentence to preserve issue for appeal); United States v. Williams, 438 F.3d 1272, 1274 (11th Cir. 2006) (whether a court's failure to comply with 18 U.S.C. § 3553(c)(1) is reviewed for plain error). In fact, the Seventh Circuit has adopted plain error review in circumstances similar to those in Sevilla.

Our review of the record reflects "the district court considered the defendant's circumstances, the § 3553(a) factors, and the advisory guidelines range." United States v. Swehla, 442 F.3d 1143, 1145 (8th Cir. 2006). The district court then chose a sentence within the advisory guidelines range, which is presumed reasonable.

Other courts seem to disagree with this approach, however, reviewing for reasonableness. See, e.g., United States v. Dale, 498 F.3d 604, 610 n. 5, 611-12 (7th Cir. 2007); United States v. Swehla, 442 F.3d 1143, 1145 (8th Cir. 2006) (arguably in conflict with United States v. Bistrup, 449 F.3d 873, 883-84 (8th Cir. 2006) (unpreserved objection to district court's explanation reviewed for plain error)); United States v. Williams, 438 F.3d 1272, 1274 (11th Cir. 2006). We are mindful of cases in our Court that arguably suggest that plain error review applies where a defendant fails to object to a district court's explanation of its sentence.

Rather, the record demonstrates that the district court properly considered all applicable statutory sentencing factors, including Cunningham's extensive criminal history — which the court found was not overstated — and his high risk for recidivism; and that it did not afford the Guidelines provisions a presumption of reasonableness, but treated them as only one factor. See 18 U.S.C. § 3553(a); United States v. Wadena, 470 F.3d 735, 737 (8th Cir. 2006) (appellate court reviews sentence for reasonableness, which requires reviewing court to ask whether district court abused its discretion); United States v. Swehla, 442 F.3d 1143, 1146 (8th Cir. 2006) (district court did not err in basing sentence on career-offender stipulation and overall criminal record, including crimes committed when defendant was juvenile); United States v. Haack, 403 F.3d 997, 1004 (8th Cir. 2005) (stating ways in which abuse of discretion may occur). Accordingly, we affirm the judgment, and we deny Cunningham's motions for appointment of new counsel.

Several other circuits have rejected the argument that defendants must object after the imposition of their sentence to preserve the substantive component of reasonableness review. See United States v. Curry, 461 F.3d 452, 459 (4th Cir. 2006) (stating that a party's failure to "restate its position after the sentence was announced, by lodging a futile objection at the end of a sentencing colloquy, is without consequence"); United States v. Swehla, 442 F.3d 1143, 1145 (8th Cir. 2006) ("Once a defendant has argued for a sentence different than the one given by the district court, we see no reason to require the defendant to object to the reasonableness of the sentence after the court has pronounced its sentence."); United States v. Castro-Juarez, 425 F.3d 430, 433-34 (7th Cir. 2005) (stating that the court "fail[ed] to see how requiring the defendant to then protest the term handed down as unreasonable [after arguing for a lower sentence at the hearing and in a previously filed sentencing memorandum] will further the sentencing process in any meaningful way"). See also United States v. Villafuerte, 502 F.3d 204, 207-08 (2d Cir. 2007) (applying plain-error review to claims that a district court failed to consider properly all of the § 3553(a) factors).

However, once the sentence was imposed, Williams did not object to either its procedural or substantive reasonableness. The government argues that his failure to do so results in plain error review on appeal. While we have not issued a published opinion determining whether our review is for reasonableness or plain error in this situation, because Williams cannot establish that his sentence is unreasonable, we need not decide the issue in this case.Cf. United States v. Swehla, 442 F.3d 1143, 1145 (8th Cir. 2006) (holding that review is for reasonableness because "[o]nce a defendant has argued for a sentence different than the one given by the district court, we see no reason to require the defendant to object to the reasonableness of the sentence after the court has pronounced its sentence"); United States v. Lopez-Flores, 444 F.3d 1218, 1221 (10th Cir. 2006), cert. denied, 127 S.Ct. 3043 (2007) (reviewing for plain error an unpreserved argument that the district court failed to adequately explain the sentence under the § 3553(a) factors). "When reviewing the length of a sentence for reasonableness, we will remand for resentencing if we are left with the definite and firm conviction that the district court committed a clear error of judgment in weighing the § 3553(a) factors by arriving at a sentence that lies outside the range of reasonable sentences dictated by the facts of the case."

However, the scenario of a defendant who failed entirely to argue for a lower sentence before the district court at any time, and then sought to make an argument for a reduced sentence for the first time on appeal, was not addressed by either case. See also United States v. Swehla, 442 F.3d 1143, 1145 (8th Cir.2006) (holding that "a defendant only need argue for a different sentence before the sentence is pronounced" to preserve appellate reasonableness review). We therefore clarify Torres-Duenas's exception allowing reasonableness review of unpreserved substantive sentencing challenges to require that the defendant have at least made the argument for a lower sentence before the district court.

The district court appropriately weighed Baker's youth and relatively minor past crimes against other § 3553(a) factors, such as the need for a significant prison sentence to halt Baker's pattern of criminal conduct and the need for a sentence long enough to provide Baker with meaningful rehabilitation and training. See 18 U.S.C. § 3553(a)(1) (history and characteristics of defendant), (a)(2)(B) (afford adequate deterrence), and (a)(2)(D) (provide defendant with needed educational or vocational training, medical care, or other correctional treatment in most effective manner); United States v. Swehla, 442 F.3d 1143, 1145-47 (8th Cir. 2006) (upholding sentence and finding criminal history not overstated where the defendant committed many crimes from ages 15 to 18). The Honorable Laurie Smith Camp, United States District Judge for the District of Nebraska.

Also, at the sentencing hearing the district court expressly considered the § 3553(a) factors. See United States v. Swehla, 442 F.3d 1143, 1145 (8th Cir. 2006). Annis's real argument is that the court did not apply these factors correctly, otherwise he would have received a lesser sentence.