author: RONALD LEE GILMAN, Circuit Judge.

text:
    Said B. SAMAAN, Plaintiff-Appellant, v. GENERAL DYNAMICS LAND SYSTEMS, INC., Defendant-Appellee.
    No. 15-2277
    United States Court of Appeals, Sixth Circuit.
    Argued: July 26, 2016
    Decided and Filed: August 31, 2016

      ARGUED: David L. Harón, Harón Law Group, PLC, Farmington Hills, Michigan, for Appellant. Thomas A. Cattel, Ogletree, Deakins, Nash, Smoak & Stewart, PLLC, Birmingham, Michigan, for Appellee. ON BRIEF: David L. Harón, Harón Law Group, PLC, Farmington Hills, Michigan, for Appellant. Thomas A. Cattel, Benjamin A. Anchill, Ogletree, Deakins, Nash, Smoak & Stewart, PLLC, Birmingham, Michigan, for Appellee.
    Before: GILMAN, WHITE, and STRANCH, Circuit Judges.
   OPINION

RONALD LEE GILMAN, Circuit Judge.

Said B. Samaan is a former employee of General Dynamics Land Systems, Inc. (General Dynamics or the Company), which designs, develops, and manufactures combat systems for various customers, including the U.S. Army. General Dynamics suspended Samaan without pay after he voiced concerns to Army personnel that the Company was submitting fraudulent claims for payment on one of its Army contracts. Although General Dynamics does not dispute the relative timing of these two events, it denies any causal relationship.

Believing otherwise, Samaan filed the instant suit against General Dynamics following his subsequent resignation. Samaan claimed, among other things, that the Company retaliated against him for exposing its allegedly fraudulent conduct. When General Dynamics asserted that Samaan’s employment agreement-required the arbitration of his claims, the parties agreed to arbitrate. The arbitrator subsequently held a hearing on General Dynamics’s motion for summary disposition, after which he issued an award in favor of the Company. Samaan then filed a motion in the district court to vacate the arbitration award. The court denied the motion. For the reasons set forth below, we AFFIRM the judgment of the district court.

I. BACKGROUND

A. Factual background

Samaan, who had been employed as an engineer with General Dynamics since 1977, came to believe that the Company was using the wrong shock-and-vibration testing methods on Stryker armored vehicles developed for use by the Army in Afghanistan and Iraq. The use of the allegedly incorrect testing methods led, in turn, to General Dynamics submitting purportedly erroneous reports detailing the shock- and-vibration specifications for the vehicles.

Samaan alleged that, on numerous occasions between 2004 and 2010, he raised his concerns with the shock-and-vibration testing and the corresponding reports to various General Dynamics personnel. According to Samaan, General Dynamics failed to take appropriate action to remedy these deficiencies. He therefore “filed a formal claim of data misrepresentation, fraud, and retaliation” with the Company’s Human Resources Department in the fall of 2010.

General Dynamics allegedly gave Sa-maan his first poor performance evaluation in January 2011. Samaan contends that he was then told that his evaluation “would improve if he would ‘forget’ about the testing misrepresentation and fraud.” He responded by filing a second complaint with the Human Resources Department. In addition, Samaan escalated his concerns about the shock-and-vibration testing— this time to the president, vice president, and general counsel of General Dynamics. But they declined to alter the testing. General Dynamics contends that it responded to Samaan’s “concerns by conducting multiple detailed investigations, and determined at the end of each of those investigations that [his] allegations were unfounded and that its shock and vibration testing procedures were appropriate under the Army’s testing standard.”

In May and June 2011, dissatisfied with the responses that he had received inside General Dynamics, Samaan voiced his concerns regarding the testing to the Army’s liaison to the Company at the Army’s Aberdeen Test Center. On June 9, 2011, after Samaan informed personnel at General Dynamics of his discussions with the liaison, he was “suspended without pay pending an investigation into his complaints and objections.” General Dynamics asserts that it launched the investigation after learning that Samaan had violated Company policy by sending sensitive corporate information to two personal email accounts belonging to himself and his son. Samaan subsequently resigned on July 1, 2011, after the Human Resources Department allegedly notified him that it would be recommending his termination.

B. Procedural background

1. Proceedings prior to arbitration

In September 2011, Samaan filed a complaint against General Dynamics in the United States District Court for the Eastern District of Michigan. Samaan alleged, in his capacity as ,a relator, that General Dynamics had “presented claims for payment to the United States knowing such claims were false,” in violation of the False Claims Act (FCA), 31 U.S.C. §§ 3729-33, based on the purportedly erroneous shock-and-vibration specifications detailed in its reports to the Army. In his personal capacity, Samaan alleged that General Dynamics had retaliated against him in violation of the FCA, the Michigan Whistleblowers’ Protection Act (WPA), Mich. Comp. Laws §§ 15.361-69, and Michigan public policy. Samaan never submitted the complaint to the U.S. Attorney General for consideration of whether to intervene in Samaan’s relator claim. He subsequently filed an amended complaint, adding claims of age discrimination under both federal and Michigan law, but removing his claim as a relator under the FCA.

In March 2012, General Dynamics filed a motion to dismiss the amended complaint or, in the alternative, to stay the action and compel arbitration under the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1-16. General Dynamics supported its motion by arguing that, as a condition of Samaan’s employment, he was required to arbitrate his claims against the Company. During a hearing on General Dynamics’s motion in May 2012, Samaan agreed to arbitrate the claims set forth in his amended complaint. The district court then entered an order granting General Dynamics’s motion, dismissing the amended complaint without prejudice, and retaining jurisdiction in accordance with the FAA for the purpose of “confirming, vacating or correcting any arbitration award and enforcing the parties’ arbitration agreement.”

2. Proceedings during arbitration

Samaan and General Dynamics subsequently executed, through counsel, a written arbitration agreement (the Agreement). The Agreement named James J. Rashid, a former state-court judge in Michigan, as the sole arbitrator, and it delineated procedures for discovery, dis-positive motions, and an “arbitration hearing.” With respect to dispositive motions, the Agreement contemplated “a hearing ordered by the Arbitrator ... as the Arbitrator deems necessary.” As for the arbitration hearing, the parties could present documentary evidence as well as witnesses who would- be subject to both direct and cross-examination. The Agreement further mandated that the “award shall be made no later than 30 days from the date of the closing of the hearing.”

In July 2013, following approximately 12 months of discovery, General Dynamics filed a motion for summary disposition with Judge Rashid. After Samaan filed a response to the motion and a sur-reply to General Dynamics’s reply, Judge Rashid held a hearing on the Company’s motion on November 18, 2013. The hearing was neither recorded nor transcribed. Despite the absence of any record evidence concerning the content of the hearing, Sa-maan’s appellate brief advances the following narrative of the proceedings:

Samaan estimates [that the hearing] lasted ten minutes total. Oral arguments briefly focused on Samaan’s claim of age discrimination. Each party spoke for approximately five minutes. The arbitrator spent the next thirty minutes focused on two subjects. First, he insisted Samaan “must settle” because the arbitrator could not or wished not to conduct a trial. Second, the arbitrator reflected on his own career disappointment when he was circuit judge in Wayne County, Michigan. He recalled that he was transferred unceremoniously from one court to another. Samaan understood that the arbitrator was attempting to use his own personal experience as an example, urging Samaan to follow suit by accepting his constructive discharge and moving on.
Samaan alleges that during the brief oral arguments, the arbitrator declared that he had already reviewed General Dynamics’ Briefs and the accompanying documents that were submitted in paper format. However, the arbitrator stated that he had not had a chance to review Samaan’s briefs and documents that were submitted because they had been submitted electronically. Shortly thereafter, the arbitrator stated that the case was too legally “complicated” for him....

General Dynamics disputes the accuracy of Samaan’s recollection. In particular, the Company does not recall Judge Rashid ever saying that the case was “too complicated” for him or that he had not read Samaan’s briefs.

On May 17, 2015, Judge Rashid issued a seven-page award granting General Dynamics’s motion for summary disposition. Judge Rashid first evaluated two elements common to each of Samaan’s legal theories — namely, whether Samaan had demonstrated “an adverse employment action and that the legitimate non-discriminatory reasons given for his termination are pretext.” With respect to the adverse employment action, Judge Rashid concluded that there was no genuine dispute of material fact that Samaan’s poor performance evaluation failed to qualify as an adverse employment action because there was no evidence that the evaluation impacted Samaan’s compensation. Judge Rashid further concluded that there was no genuine dispute that Samaan’s resignation did not qualify as an adverse employment action because General Dynamics’s conduct was not “so severe that a reasonable person in the employee[’]s place would feel compelled to resign.” Turning to pretext, Judge Rashid concluded that there was no genuine dispute that the Company’s stated reason for recommending termination — that Samaan forwarded “company sensitive information” to personal email accounts, in violation of General Dynamics’s policy — was not pretextual.

Judge Rashid then analyzed each of Sa-maan’s claims in more detail and concluded that none had merit. For instance, Judge Rashid concluded that the FCA claim failed because there was “no evidence to show that [Samaan’s] complaints were done in furtherance of a F.C.A. action.” And Judge Rashid decided that Samaan’s WPA claim failed because there was “no evidence that [Samaan] reported or was ‘about to report’ to a ‘public body’ as defined by the statute.” Accordingly, Judge Rashid dismissed all of Samaan’s claims with prejudice.

3. Proceedings after the arbitrator’s award

Samaan subsequently filed a pro se motion in the district court to vacate the arbitration award under the FAA. See 9 U.S.C. § 10. General Dynamics filed a response requesting that the court deny Sa-maan’s motion and confirm the award. In September 2015, the court denied Sa-maan’s motion, confirmed the award in favor of General Dynamics, and denied all other pending motions as moot. Samaan now appeals.

II. ANALYSIS

A. Standard of review

When reviewing a district court’s decision either vacating or confirming an arbitrator’s award under the FAA, we apply the clear-error standard to the court’s findings of fact, but we review questions of law de novo. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Jaros, 70 F.3d 418, 420 (6th Cir. 1995) (citing First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 947-49, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995)).

B. The Federal Arbitration Act

Generally, there are two flavors of arbitration cases: labor arbitrations pursuant to collective-bargaining agreements and commercial arbitrations pursuant to other agreements. Review of the former class of cases is governed by federal labor law, such as the Railway Labor Act and the Labor Management Relations Act, see Bhd. of Locomotive Eng’rs & Trainmen v. United Transp. Union, 700 F.3d 891, 899-900 (6th Cir. 2012); Titan Tire Corp. of Bryan v. United Steelworkers of Am., Local 890L, 656 F.3d 368, 371-72 (6th Cir. 2011), whereas the FAA frames the review of the latter, see Hall St. Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576, 581-82, 128 S.Ct. 1396, 170 L.Ed.2d 254 (2008).

Although labor arbitrations and commercial arbitrations share certain legal concepts, these areas of law are not interchangeable. This distinction reflects the understanding that, “[r]ather than signaling the ‘breakdown in the working relationship of the parties,’ as it does in a commercial setting, labor arbitration ‘is at the very heart of the system of industrial self-government.’ ” Bhd. of Locomotive Eng’rs & Trainmen, 700 F.3d at 900 (quoting United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 581, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960)). Mindful of this distinction, we will apply the FAA to our review of the instant case because it falls into the commercial-arbitration category.

The FAA expresses a “federal policy favoring arbitration.” Bratt Enters., Inc. v. Noble Int’l Ltd., 338 F.3d 609, 613 (6th Cir. 2003) (quoting Volt Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford Junior Univ., 489 U.S. 468, 475-76, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989)). “When courts are called on to review an arbitrator’s decision, the review is very’ narrow; it is one of the narrowest standards of judicial review in all of American jurisprudence.” Uhl v. Komatsu Forklift Co., Ltd., 512 F.3d 294, 305 (6th Cir. 2008) (brackets and citation omitted). “Courts must refrain from reversing an arbitrator simply because the' court disagrees with the result or believes the arbitrator made a serious legal or factual error.” Solvay Pharm., Inc. v. Duramed Pharm., Inc., 442 F.3d 471, 476 (6th Cir. 2006) (brackets, citation, and emphasis omitted).

On application of one of the parties, a district court possessing a basis for subject-matter jurisdiction independent of the FAA must issue an order confirming an arbitrator’s award “unless the award is vacated, modified, or corrected as prescribed in” 9 U.S.C. §§ 10 and 11. 9 U.S.C. § 9; see also Hall St., 552 U.S. at 581-82, 128 S.Ct. 1396 (noting that the FAA “bestow[s] no federal jurisdiction” over “controversies touching arbitration”). Samaan requested that the district court vacate the award. An arbitration award can be vacated under the FAA in only four situations:

(1) where the award was procured by corruption, fraud, or undue means;
(2) where there was evident partiality or corruption in the arbitrators, or either of them;
(3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or
(4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.

9 U.S.C. § 10(a); see also Hall St., 552 U.S. at 578, 128 S.Ct. 1396 (holding that the statutory grounds enumerated in § 10 are the exclusive means under the FAA to vacate an arbitrator’s award); Grain v. Trinity Health, Mercy Health Servs. Inc., 551 F.3d 374, 378 (6th Cir. 2008) (same).

Prior to the Supreme Court’s decision in Hall Street, the Sixth Circuit held that, as an alternative to the grounds in 9 U.S.C. § 10, an arbitrator’s award could be vacated on “a separate judicially created basis ... where the arbitration award was made in manifest disregard of the law.” Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Jaros, 70 F.3d 418, 421 (6th Cir. 1995) (citation and internal quotation marks omitted). Whether “manifest disregard of the law” may still supply a basis for vacating an arbitrator’s award as “a judicially created supplement to the enumerated forms of FAA relief’ after Hall Street is an open question. Grain, 551 F.3d at 380 (citation and internal quotation marks omitted); see also Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 672 n.3, 130 S.Ct. 1758, 176 L.Ed.2d 605 (2010) (declining to decide whether the manifest-disregard standard of review survived Hall Street either “as an independent ground for review or as a judicial gloss on the enumerated grounds for vacatur set forth at 9 U.S.C. § 10”).

We likewise have no need to resolve this question because Samaan does not argue in his appellate briefs that manifest disregard of the law is a basis for vacating the arbitration award. See Kuhn v. Washtenaw County, 709 F.3d 612, 624 (6th Cir. 2013) (“This court has consistently held that arguments not raised in a party’s opening brief, as well as arguments adverted to in only a perfunctory manner, are waived.”); Solvay Pharm., 442 F.3d at 475 n.3 (declining to address whether manifest disregard of the law merited vacatur when the appellant “attaek[ed] the lawfulness of the arbitration award” but did “not charge that such error was in ‘manifest disregard of the law1 or discuss any of our cases articulating the doctrine”). Accordingly, we will evaluate only whether Samaan’s claims satisfy any of the grounds enumerated in 9 U.S.C. § 10(a).

C. Samaan’s claims for vacatur under the FAA

Like Gaul, Samaan’s claims can be divided into three parts. The first claim focuses on Samaan’s argument that the arbitration award should be vacated because of the delay between the summary-disposition hearing and the issuance of the award. Samaan’s second claim is based on his contention that several of Judge Rashid’s actions and inactions during the arbitration proceedings require vacatur. Finally, Samaan argues that the award should be vacated because his actions fulfilled his moral and ethical obligations to expose fraud. We will address each group of claims in turn.

1. Judge Rashid was not required to rule on General Dynamics’s motion for summary disposition within 30 days of the motion hearing

Samaan first argues that the arbitration award should be vacated because it was issued more than 30 days after the hearing on General Dynamics’s motion for summary disposition. To support this argument, Samaan points to the language in Paragraph 16 of the Agreement stating that “[t]he award shall be made no later than 30 days from the date of the closing of the hearing.” Samaan interprets this language to mean that Judge Rashid was required to issue his award within 30 days of the November 18, 2013 hearing on General Dynamics’s motion for summary disposition. Judge Rashid therefore “disregarded this unambiguous language” of the Agreement, the argument goes, by not issuing his award in favor of General Dynamics until May 17, 2015. Samaan contends that by issuing a delinquent award, Judge Rashid exceeded his powers under the Agreement, thereby violating both 9 U.S.C. § 10(a)(4) and public policy.

“[T]he interpretation of an arbitration agreement is generally a matter of state law.” Stolt-Nielsen, 559 U.S. at 681, 130 S.Ct. 1758. Accordingly, we “apply[] general state-law principles of contract interpretation to the interpretation of an arbitration agreement.” Bratt Enters., Inc. v. Noble Int’l Ltd., 338 F.3d 609, 613 (6th Cir. 2003) (quoting Volt Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford Junior Univ., 489 U.S. 468, 475, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989)). These principles instruct courts to “enforce contract language in accordance with its plain and commonly used meaning, being careful to enforce specific and well-recognized terms.” Whitehouse Condo. Grp., LLC v. Cincinnati Ins. Co., 569 Fed.Appx. 413, 416 (6th Cir. 2014). But “[a] contract should be read as a whole instrument and with the goal of enforcing the intent of the parties.” Id. Moreover, “contracts must be construed consistent with common sense and in a manner that avoids absurd re-suits.” Kellogg Co. v. Sabhlok, 471 F.3d 629, 636 (6th Cir. 2006).

When read in isolation, the above-quoted language of the Agreement appears to support Samaan’s argument. A motion hearing is, after all, a hearing, and Paragraph 16 of the Agreement declares that “[t]he award shall be made no later than 30 days from the date of the closing of the hearing.” There is a certain simplicity to this line of argument. Other provisions of the Agreement, however, reveal fatal flaws in Samaan’s proposed interpretation.

Dispositive motions, like General Dynamics’s motion for summary disposition, are governed by Paragraph 5 of the Agreement, which contemplates “a hearing ordered by the Arbitrator ... as the Arbitrator deems necessary.” This permissive language undercuts the argument that “the hearing” in Paragraph 16 includes a hearing on a dispositive motion because this inclusion would lead to nonsensical results. See Kellogg Co., 471 F.3d at 636. To wit, if Paragraph 16 were deemed applicable to a hearing on a dispositive motion, then an arbitrator’s decision to hold such a hearing would trigger a 30-day clock for issuing his ruling. On the- other hand, if the arbitrator decided not to hold a hearing on the motion, then he would be subject to no time limit at all. Samaan’s reading of Paragraph 16, in conjunction with Paragraph 5, therefore would create little incentive for an arbitrator to hold a hearing on a dispositive motion.

The uncomfortable fit that results from interpreting Paragraph 16’s 30-day limit to apply to hearings on dispositive motions is further underscored by the fact that a ruling on a dispositive motion does not necessarily result in an arbitration award. Paragraph 16 imposes a 30-day clock only on the issuance of “the award.” True enough, if the arbitrator decided that there were no genuine disputes of material fact, a dispositive motion could result in an award. On the other hand, if the arbitrator decided that there was a genuine dispute of material fact, then his denial of the dispositive motion would not result in an award for either party, and the matter would proceed to a trial-like arbitration hearing as detailed in the Agreement. The absence of an award would correspondingly exempt the arbitrator from the 30-day limit in Paragraph 16.

So, if Samaan’s interpretation is correct, an arbitrator deciding a dispositive motion would be subject to the 30-day limit only if he held a hearing on the motion, subsequently granted the motion, and issued an award. Samaan’s interpretation of Paragraph 16 therefore leads to the bizarre result that the applicability of the 30-day limit to dispositive motions would depend on (1) whether the arbitrator decided to hold a motion hearing, and (2) whether he ultimately granted or denied the motion.

Nor does exempting dispositive motions from the 30-day limit reduce the provision to surplusage. See People v. McGraw, 484 Mich. 120, 771 N.W.2d 655, 659 (Mich. 2009) (“In interpreting a statute, we avoid a' construction that would render part of the statute surplusage or nugatory.”). Paragraph 16 follows several paragraphs detailing the protocol for an “arbitration hearing,” during which both parties would be able to submit evidence, including witnesses" who would be subject to cross-examination. The hearing contemplated in Paragraph 16 is the arbitration equivalent of a trial. Thus, the most direct way to impart meaning to the 30-day time limit, while also avoiding the awkwardness of applying it to hearings on dispositive motions, is to cabin its application to a trial-like arbitration hearing. This interpretation avoids rendering the 30-day time limit surplusage, see McGraw, 771 N.W.2d at 659, avoids illogical results, see Kellogg, 471 F.3d at 636, and offers the best interpretation of Paragraph 16 when the language of the Agreement is considered as a whole, see Whitehouse Condo. Grp., LLC v. Cincinnati Ins. Co., 569 Fed.Appx. 413, 416 (6th Cir. 2014).

In response, Samaan cites Huntington Alloys, Inc. v. United Steelworkers of America, 623 F.2d 335 (4th Cir. 1980), a labor-arbitration case involving a contractual deadline for the issuance of an award. But we find his reliance on Huntington Alloys unpersuasive. Although the court in that case vacated an arbitration award based on the violation of a provision similar to Paragraph 16, the arbitrators in Huntington Alloys actually held a trial-like hearing before issuing the award beyond the specified time limit. Id. at 336-38. Further, the collective-bargaining agreement in Huntington Alloys provided that the decision of the arbitrators would not be binding unless it was delivered to the parties within the specified time limit, id. at 336; here, the Agreement contains no such provision and instead authorizes the arbitrator to unilaterally modify any deadline. These salient differences preclude Sa-maan from successfully relying on Huntington Alloys for the proposition that Paragraph 16 requires that we vacate the award because of Judge Rashid’s failure to render it within 30 days after the hearing on General Dynamics’s dispositive motion.

2. Judge Rashid’s alleged actions and inactions during the arbitration proceedings are not sufficient bases for vacatur under the FAA

Samaan next argues that the award should be vacated under 9 U.S.C. § 10(a)(2)-(4) because Judge Rashid evidenced partiality, committed misconduct by refusing to hear evidence, prejudiced Samaan’s rights through his misbehavior, and imperfectly executed his powers in a way that demonstrated the absence of a “mutual, final, and definite award.” To support his claims, Samaan points to (1) three sets of remarks that Judge Rashid allegedly made during the hearing on General Dynamics’s motion for summary disposition, (2) Judge Rashid’s failure to hold an evidentiary hearing, (3) the alleged inclusion of language from General Dynamics’s briefs in the written award, and (4) Judge Rashid’s alleged failure to address all of Samaan’s arguments opposing summary disposition. Although Samaan neither analyzes nor cites any factually similar cases that would support vacatur based on these allegations, we will nevertheless address each of these bases in turn.

The first basis focuses on the comments that Judge Rashid allegedly made at the motion hearing. Samaan contends that Judge Rashid (1) admitted that he had not reviewed Samaan’s documents before the hearing, (2) stated that the case was too complicated for him, and (3) discussed his own career woes as a way of urging Samaan to settle. As the party seeking vacatur, Samaan bears the burden of producing evidence to support his claim. See Uhl v. Komatsu Forklift Co., Ltd., 512 F.3d 294, 306 (6th Cir. 2008) (holding that a party asserting evident partiality as a basis for vacatur bears the burden of “establishing] specific facts that indicate improper motives on the part of the arbitrator” (citation omitted)); Jamoua v. CCO Inv. Servs. Corp., No. 09-13604, 2010 WL 891148, at *1 (E.D. Mich. Mar. 10, 2010) (“The burden is on the party seeking to vacate the award ... to come forward with evidence in support of its claim .... ”).

But nothing other than Samaan’s un-sworn allegations support his characterization of what Judge Rashid said at the motion hearing. Samaan has pointed to no record evidence — whether a transcript, recording, or sworn statement — that lends support to his account, and General Dynamics contests Samaan’s description of what Judge Rashid said. This failure to substantiate his assertions with record evidence is fatal to this set of Samaan’s claims. See Elec. Data Sys. Corp. v. Donelson, 473 F.3d 684, 692 (6th Cir. 2007) (concluding that, “[b]ecause no record exists of the arbitration hearing held in this case, it is impossible to determine” what was said at the hearing); Univ. Commons-Urbana, Ltd. v. Universal Constructors Inc., 304 F.3d 1331, 1337 (11th Cir. 2002) (noting that, “since the hearings were not transcribed, we cannot even look at questions or offhand remarks by the arbitrators for possible evidence” supporting va-catur of an arbitration award); Jamoua, 2010 WL 891148, at *5 (“Where, as here, the party moving to vacate the award provides no transcript or record evidence, but presents only self-serving and conclusory allegations unsupported by any record evidence, it is impossible for this Court to determine that the [arbitration] Panel was guilty of misconduct.”).

Samaan also argues that the arbitration award should be vacated because Samaan did not receive an evidentiary hearing in which he could present evidence or call witnesses. As noted above, however, Samaan points to no caselaw (and we are aware of none) holding that an arbitrator’s failure to hold an evidentiary hearing merits vacatur under 9 U.S.C. § 10. See Louisiana D. Brown 1992 Irrevocable Tr. v. Peabody Coal Co., 205 F.3d 1340, 2000 WL 178554 at *5-6 (6th Cir. 2000) (unpublished table decision) (rejecting a plaintiffs claim that an “absolute right” to an evidentiary hearing exists in arbitration); Warren v. Tacher, 114 F.Supp.2d 600, 602-03 (W.D. Ky. 2000) (“Plaintiffs cite no authority that they are automatically entitled to a full-blown evidentiary hearing following discovery, and the court is aware of none.”).

Moreover, with respect to dispositive motions, Paragraph 5 of the Agreement explicitly provides for “a hearing ordered by the Arbitrator ... as the Arbitrator deems necessary.” This permissive language establishes the parties’ agreement that Samaan’s claims could be resolved based on a dispositive motion without even a motion hearing, let alone an evidentiary hearing. Indeed, given that district courts across the country frequently grant summary judgment against plaintiffs without an evidentiary hearing, based on Rule 56 of the Federal Rules of Civil Procedure, the argument that such a protocol is impermissible when adopted by an arbitrator is unpersuasive — particularly where, as here, the relevant arbitration agreement permits such a course. Accordingly, the absence of an evidentiary hearing does not merit vacatur of the arbitration award under the FAA.

Samaan further argues that the award should be vacated because the written award “blatantly copied word-for-word language from General Dynamics[’s] briefs.” The veracity of Samaan’s contention is hard to evaluate because he fails to identify what language was in fact copied verbatim. But even assuming that Sa-maan’s assertion is true, he — yet again— cites no caselaw substantiating his position that such behavior indicates bias sufficient to merit vacatur under 9 U.S.C. § 10. Moreover, federal courts are permitted to incorporate language from parties’ submissions into their orders. Kilburn v. United States, 938 F.2d 666, 672 (6th Cir. 1991) (“While the Supreme Court in Anderson [v. City of Bessemer City, 470 U.S. 564, 572, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985),] discouraged verbatim adoption by district courts of a party’s proposed findings of fact and conclusions of law, it still held, however, that district court findings are subject to the clearly erroneous standard.... ”)• Samaan offers no rationale for why such behavior is permissible for courts but not for arbitrators. This basis for vacating the award is therefore without merit.

Samaan’s last contention regarding this related group of claims is that the arbitration award should be vacated on the basis that Judge Rashid “failed to address several issues Samaan had raised, ignoring questions involving Samaan’s indefinite suspension and the derogatory statements that Samaan’s supervisor used in his 2010 performance evaluation.” A decisionmaker does not necessarily err simply because he or she does not address every argument raised by one of the parties. United States v. Collazo, 818 F.3d 247, 260 (6th Cir. 2016) (finding no error in the district court’s failure to address a nondispositive issue raised by a party). And to the extent that the issues allegedly ignored were outcome-determinative, Samaan’s argument is best characterized as a challenge to Judge Rashid’s legal conclusions. But a legal error committed by an arbitrator is insufficient for vacatur under the FAA. See Solvay Pharm., Inc. v. Duramed Pharm., Inc., 442 F.3d 471, 476 (6th Cir. 2006) (“Courts must refrain from reversing an arbitrator simply because the court disagrees with the result or believes the arbitrator made a serious legal or factual error.” (brackets, citation, and emphasis omitted)).

Samaan’s claim that Judge Rashid ignored certain issues could perhaps be viewed as a claim that he demonstrated “manifest disregard for the law.” See Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Jaros, 70 F.3d 418, 421 (6th Cir. 1995) (“When faced with questions of law, an arbitration panel does not act in manifest disregard of the law unless (1) the applicable legal principle is clearly defined and not subject to reasonable debate; and (2) the arbitrators refused to heed that legal principle.”). Although such disregard might still be a permissible basis for vaca-tur of an arbitration award, see Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 672 n.3, 130 S.Ct. 1758, 176 L.Ed.2d 605 (2010), we need not address this question because, as noted above, Sa-maan has not developed such an argument on appeal, see Kuhn v. Washtenaw County, 709 F.3d 612, 624 (6th Cir. 2013); Solvay Pharm., 442 F.3d at 475 n.3.

3. The FAA does not allow for vaca-tur based on the fulfillment of moral and ethical obligations

Samaan’s final argument is that the arbitration award should be vacated because Samaan believed that he was fulfilling his moral and ethical obligations to expose fraud. Tellingly, Samaan again cites no legal authority to support this argument. This omission is unsurprising given that, as noted above, we can vacate an arbitrator’s award under the FAA only under the circumstances enumerated in 9 U.S.C. § 10. Whether Samaan believed that he was fulfilling his ethical and moral obligations is therefore legally irrelevant in the present case because the FAA does not recognize such behavior as a basis for vacating an arbitrator’s award. See 9 U.SiC. § 10(a). We accordingly conclude that Samaan’s attempt to vacate the award on this basis fails.

III. CONCLUSION

For all of the reasons set forth above, we AFFIRM the judgment of the district court.


source: Caselaw Access Project

author: BOGGS, Circuit Judge. CLAY, Circuit Judge,

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. John Nathan COLEMAN, Defendant-Appellant.
    Nos. 15-5844/5845
    United States Court of Appeals, Sixth Circuit.
    Argued: June 8, 2016
    Decided and Filed: August 31, 2016

      ARGUED: Kevin M. Schad, Office of the Federal Public Defender, Cincinnati, Ohio, for Appellant. Daniel E. Hancock, United States Attorney’s Office, Lexington, Kentucky, for Appellee. ON BRIEF: Kevin M. Schad, Office of the Federal Public Defender, Cincinnati, Ohio, for Appellant. Charles P. Wisdom, Jr., United States Attorney’s Office, Lexington, Kentucky, for Appellee.
    Before: BOGGS, CLAY, and GILMAN, Circuit Judges.
   BOGGS, J., delivered the opinion of the court in which GILMAN, J., joined. CLAY, J. (pp. 618-23), delivered a separate dissenting opinion.

OPINION

BOGGS, Circuit Judge.

In 2015, John Nathan Coleman used marijuana and cocaine while serving a term of supervised release from federal prison. After Coleman admitted his offense to a probation officer, the government moved to revoke his supervised release. In response to Coleman’s dissatisfaction with his court-appointed attorney, the district court appointed new defense counsel minutes before holding a revocation hearing in Coleman’s case. The district court proceeded to find that Coleman had violated the terms of his supervised release and imposed an above-Guidelines sentence of thirty months of imprisonment. Coleman appeals the revocation of his supervised release, arguing that he was constructively denied the assistance of counsel due to the brief amount of time between the appointment of new counsel and his revocation hearing. Coleman also argues that his sentence is procedurally unreasonable. For the reasons given below, we affirm.

I

In October 2007, Coleman sold three grams of crack cocaine to an informant working for the Drug Enforcement Administration (“DEA”). DEA agents subsequently arrested Coleman after he helped the informant to arrange a second cocaine transaction. Coleman ultimately pleaded guilty to conspiracy to distribute five grams or more of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 846. The district court sentenced Coleman to ninety-two months of imprisonment and four years of supervised release and recommended that Coleman undergo substance-abuse treatment.

Six months before Coleman’s sentence was set to expire, the Bureau of Prisons granted Coleman’s application for a furlough transfer to a Lexington, Kentucky, establishment run by a charity, where he was to serve out the remainder of his sentence. Two months later, Coleman escaped from the establishment and did not return. The United States Marshal Service ultimately found Coleman in a Lexington neighborhood, and Coleman subsequently pleaded guilty to escape from federal custody, a violation of 18 U.S.C. § 751(a). Judge Joseph Hood, who was assigned Coleman’s new case, sentenced Coleman to fifteen months of imprisonment, to be followed by three years of supervised release that would run concurrently with his unfinished four-year supervised-release term.

Coleman completed his prison sentences on September 19, 2014, and began serving his two concurrent terms of supervised release. But less than two months later, Coleman admitted to having violated the conditions of his supervised release by using cocaine. Judge Hood ordered that Coleman serve an additional six-month term of imprisonment, to be followed by ninety days of in-patient substance-abuse treatment and the remainder of his supervised-release term.

After finishing the court-ordered substance-abuse treatment on June 30, 2015, Coleman was released from the treatment facility on several conditions, including that he refrain from using controlled substances without a prescription and abstain from committing any state or federal offenses. But two days later, in a routine interview with his probation officer, Coleman admitted that he had recently smoked marijuana. The following week, after a urine sample that Coleman provided tested positive for cocaine, the government petitioned the court to revoke Coleman’s supervised-release term for violating the conditions that he not use controlled substances or engage in criminal activity.

On July 9, a magistrate judge appointed local attorney Derek Gordon to represent Coleman and scheduled a revocation hearing for August 4 before Judge Hood, who, as mentioned above, had already presided over Coleman’s escape conviction and sentencing, as well as his first revocation hearing. But eight days later, Coleman filed a pro se motion for new counsel, in which he expressed that he was dissatisfied with Gordon’s work. In his motion, Coleman also admitted to taking “2 hits off of a [marijuana] joint” and asked the district court for leniency in sentencing, explaining that he had played only a minor role in the 2007 drug conspiracy and that he wanted to resume “a normal life” with his wife and child.

Judge Hood convened a hearing on Coleman’s motion on July 27 at 10:05 a.m. The district court first asked Gordon and Coleman about the latter’s motion for new counsel. When Coleman confirmed that he wanted to discontinue his relationship with Gordon, the district court granted Coleman’s request and relieved Gordon. The court then appointed attorney Robert Abell, who was already present at the hearing on the court’s request, as Gordon’s replacement. Upon confirming that Abell had copies of Coleman’s presentence and violation reports, the court called for a recess in order to give Abell time to review the documents with Coleman.

The court went back on the record at 10:19 a.m., fourteen minutes after the hearing first started. Abell informed the court that Coleman would not be contesting the marijuana and cocaine-related charges mentioned in the violation reports and remarked that “[i]t’s my understanding the court has a final hearing next Tuesday.” The court asked whether the parties wished to hold that final hearing as scheduled during the following week, or if they preferred to “just go ahead and have it today.” Coleman spoke up and volunteered that he “wanted to get it out of the way,” and Abell confirmed that “Mr. Coleman is ready to go forward today and get this matter completed.” In accordance with Coleman’s request, the court treated the remainder of the hearing as a revocation hearing.

The district court began by noting that the presentence report identified the Guidelines imprisonment range for Coleman’s offense as twenty-one to twenty-seven months. The court then asked whether Abell wished to “speak on behalf of Coleman.” Abell responded:

Judge, I guess the record indicates at worst that Mr. Coleman has an ongoing substance abuse problem that he’s struggled with significantly, and certainly the court has familiarity with his history and I am sure will take that into consideration when determining what action is appropriate today.

The court then asked whether Coleman wished to make a statement. Coleman, speaking on his own behalf, admitted to the court that he was “wrong” to have used illegal drugs while on supervised release, but then proceeded to discuss his substance-abuse problem and complain about the inadequacy of the treatment that he received in the residential treatment facility. In response, the court observed that Coleman had repeatedly violated the terms of his supervised release:

[W]hen you do ... dope, that’s a violation, and that’s — that just seems to be a recurring problem with you.... [Apparently you don’t seem to appreciate the fact that when we say do not use illegal substances, that means you don’t use it, regardless of whether you ... get home and you don’t have a drug program immediately available for you....

The court also admonished Coleman for his attempt to blame his violations on the treatment facility’s failures:

I understand that [the residential program] didn’t have what you wanted them to have or [what] they said they were supposed to have. But then you got ... out and you did it. You did dope. The problem is you are not supposed to be doing dope_ Period. Not at all.... I don’t think it is helping you at all to be involved [in treatment], and it’s not helping us. We are spending money ... [and] to be helped, you have got to want to be helped.

The court concluded that “you do have a weakness, and I’m sorry for that; but we have tried to do what we could to help you with that weakness, and we haven’t been very successful.”

The court then revoked Coleman’s supervised release and sentenced him to thirty months of imprisonment — three months above the upper end of the applicable Guidelines range — with no further supervised release. The court concluded by asking Coleman, his counsel, and the prosecutor if they had any objections to the imposed sentence. Each responded in the negative.

Coleman timely filed a notice of appeal. On appeal, Coleman argues that he was constructively denied the assistance of counsel during his revocation hearing. He also argues that the district court’s sentence was procedurally unreasonable because the district court failed to consider relevant sentencing factors and did not provide reasons for imposing an above-Guidelines sentence. We address each of Coleman’s arguments in turn.

II

We begin with Coleman’s claim that he was constructively denied the assistance of counsel at his revocation hearing on the ground that Abell had insufficient time in which to prepare a defense. Claims of ineffective assistance of counsel present mixed questions of law and fact that we review de novo. United States v. Ferguson, 669 F.3d 756, 761 (6th Cir. 2012). However, we generally review such claims on collateral review because the record on direct appeal “is [often] insufficient to assess the merits of the claim.” United States v. Smith, 600 Fed.Appx. 991, 993 (6th Cir. 2015); see also Massaro v. United States, 538 U.S. 500, 504-05, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003). Only in the rare case that would not benefit from further record development do we consider such claims on direct review. See United States v. Franklin, 415 F.3d 537, 555-56 (6th Cir. 2005).

As a general rule, claims of ineffective assistance of counsel are governed by the familiar two-part framework set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland, a criminal defendant is not entitled to relief unless he proves both that counsel’s performance was deficient, measured by reference to “an objective standard of reasonableness,” id. at 688, 104 S.Ct. 2052, and resulting prejudice, which exists where “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different,” id. at 694, 104 S.Ct. 2052. But in limited cases, we may dispense with Strickland’s prejudice inquiry where the “circumstances arising in a criminal prosecution ‘are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.’ ” Fuller v. Sherry, 405 Fed.Appx. 980, 985 (6th Cir. 2010) (quoting United States v. Cronic, 466 U.S. 648, 658, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984)).

In particular, in United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), the Supreme Court identified three scenarios in which a defendant is entitled to a presumption of prejudice: First, courts must presume prejudice where there has been a “complete denial of counsel” at a “critical stage” of the criminal proceedings. Id. at 659, 104 S.Ct. 2039. Second, we also presume prejudice “if counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing.” Ibid. Third, even if counsel is present and available to assist the accused, a prejudice inquiry is unnecessary where “the likelihood that any lawyer, even a fully competent one, could provide effective assistance” is minimal. Id. at 559-60.

We have cautioned that under the third scenario, which Coleman invokes on appeal, see Appellant Br. 8, the presumption of prejudice applies only in “limited, egregious circumstances,” not simply “because counsel was belatedly appointed and the court refused to grant additional time to prepare,” Fuller, 405 Fed.Appx. at 985. When looking to the surrounding circumstances in this last category of cases, five factors “relevant to an evaluation of a lawyer’s effectiveness in a particular case” aid courts’ determination of whether the prejudice inquiry may be dispensed with, Cronic, 466 U.S. at 663, 104 S.Ct. 2039, namely, “(1) [t]he time afforded for investí- - gation and preparation; (2) the experience of counsel; (3) the gravity of the charge; (4) the complexity of possible defenses; and (5) the accessibility of witnesses to counsel,” id. at 652, 104 S.Ct. 2039 (quoting United States v. Cronic, 675 F.2d 1126, 1129 (10th Cir. 1982)).

As applied to Coleman’s case, these five factors suggest that this is not one of the extraordinary and “egregious” cases in which we may dispense with Strickland’s prejudice inquiry. Fuller, 405 Fed.Appx. at 985. Coleman estimates that he had twelve minutes in which to consult with Abell. Appellant Br. 4. Although we acknowledge that twelve minutes would ordinarily be a relatively short amount of time for an attorney to investigate and prepare for a revocation hearing, Coleman did not — and does not now — contest the charges against him. Ibid. Moreover, this first factor alone does not warrant applying the presumption of prejudice. As we have recognized, the adequacy of time for preparation can be measured only by reference to the other Cronic factors. See Fuller, 405 Fed.Appx. at 988; see also Chambers v. Maroney, 399 U.S. 42, 54, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970) (“[W]e are not disposed to fashion a per se rule requiring reversal of every conviction following tardy appointment of counsel.... ”).

None of the remaining factors point in Coleman’s favor. Despite bearing the burden of proof, Coleman points to no evidence that Abell lacked criminal-defense experience. Moreover, the charge below— that Coleman violated the conditions of his supervised release by using recreational drugs — was not nearly as grave as the charges in those cases in which we have dispensed with the presumption of prejudice. See United States v. Morris, 470 F.3d 596, 598 (6th Cir. 2006) (felony firearm and drug possession); Mitchell v. Mason, 325 F.3d 732, 735 (6th Cir. 2003) (first-degree murder); Hunt v. Mitchell, 261 F.3d 575, 578 (6th Cir. 2001) (felonious assault and domestic violence). Nor does Coleman articulate any possible defenses to the revocation charges or endeavor to identify any witnesses that Abell should have called. Importantly, Coleman openly admitted in his motion for new counsel that he had smoked marijuana while on supervised release, and the government produced urinalysis results that showed that Coleman had also used cocaine. Indeed, only after consulting with Coleman did Abell inform the court that Coleman would not be contesting the revocation charges.

We acknowledge that it is conceivable that Abell could have raised additional facts and arguments that might have encouraged the court to impose a lighter revocation sentence. But because Abell, by bringing Coleman’s substance-abuse problem to the court’s attention, did not “entirely” fail to subject the prosecution’s case to adversarial testing, Bell v. Cone, 535 U.S. 685, 697, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002); Cronic, 466 U.S. at 659, 104 S.Ct. 2039, our initial inquiry is whether there is more than a minimal “likelihood that any lawyer, even a fully competent one, could provide effective assistance” under the circumstances of this case, Cronic, 466 U.S. at 659-60, 104 S.Ct. 2039.

Our review of the record suggests that it is entirely possible that competent counsel could have used the brief recess to ascertain that Coleman had, in fact, used marijuana and cocaine while on supervised release, and to learn about the few mitigating factors that were available to Coleman, namely, the realities that he had a substance-abuse problem, that he never received the substance-abuse treatment that he needed, and that his wife and child could help him to integrate into society. Indeed, this is precisely what the district court learned during its eleven-minute colloquy with Coleman, and it appears that Abell himself may have been aware of these facts as well; Abell reminded the district court that Coleman “has an ongoing substance abuse problem that he’s struggled with significantly” and urged the court to “take that [problem] into consideration.”

We emphasize how significantly the circumstances of this case differ from the facts in those few cases in which we have dispensed with Strickland’s prejudice inquiry. In United States v. Morris, 470 F.3d 596 (6th Cir. 2006), for example, state and federal prosecutors forced a defendant to decide whether to plead guilty to state drug and firearm charges or risk facing more serious federal charges, but permitted him only a few minutes to consult his newly appointed counsel in a courthouse “bull pen” in which “attorneys and clients [had] to shout their communication” to be heard over the din of the “crowded” cell. Id. at 599. At that point, the attorney was misinformed of the likely federal sentence that the defendant would face and had not even received complete discovery. Id. at 598-99, 602. We faced nearly identical facts in Mitchell v. Mason, 325 F.3d 732 (6th Cir. 2003), in which we held that a defendant was constructively denied counsel when his attorney spoke with him for a mere six minutes before going to trial for first-degree murder. Id. at 741, 744-48. Similarly, in Hunt v. Mitchell, 261 F.3d 575 (6th Cir. 2001), a defendant accused of felonious assault and domestic violence proceeded to trial without having consulted with his attorney at all. Id. at 583.

Coleman’s case differs in many salient respects, all of which can be boiled down to the reality that unlike the attorneys in Morris, Mitchell, and Hunt, Abell could have adequately prepared himself for the relatively simple task of advocating for a lower sentence in the time he was given. Indeed, the record suggests that Abell was far more prepared than the defense attorney in Fuller v. Sherry, 405 Fed.Appx. 980 (6th Cir. 2010), in which we held that a defendant was not entitled to a presumption of prejudice. Id. at 989. In that case, defense counsel had only eighty-eight minutes “to meet with [his] new client, discuss a potential plea, consider motions and discovery requests, review discovery documents, and read the preliminary examination transcript.” Id. at 988. Given that Fuller’s case was relatively uncomplicated when compared with those of the defendants in Morris, Mitchell, and Hunt, we concluded that unlike the attorneys in those cases, Fuller’s attorney “did not have to go to trial entirely unprepared,” and Strickland, not Cronic, therefore provided the appropriate framework for gauging counsel’s effectiveness. Ibid. Because it is clear that Abell was not “entirely unprepared,” the same result obtains here.

We note that Coleman, himself a seasoned veteran of the criminal-justice system, did not believe that Abell lacked sufficient knowledge of his circumstances to adequately represent him at the revocation hearing. Indeed, if the facts of this case were as stark as those set forth by our dissenting colleague, we might well view this case differently. But the person who “fast-tracked” this case and put it on “speed dial” was Coleman. Dissenting Op. at 618, 621-22. Prior to the revocation hearing, Coleman had an attorney. But Coleman requested a new one, and the district court obliged by appointing Abell. Then, rather than taking advantage of the court’s invitation to adjourn the hearing, Coleman declined, volunteering, “I wan[t] to get it out of the way.” The speed with which Coleman’s case progressed was therefore determined by Coleman himself, not by Abell, the prosecutor, or the court. Under these circumstances, we believe that Strickland sets forth the standard applicable to Coleman’s claim of ineffective assistance of counsel.

We further note that the dissent’s quotation from the district court that “nothing is Mr. Coleman’s fault” is incomplete when read in isolation. Dissenting Op. at 621-22. The district court’s full statement reads: “I don’t want Mr. Coleman to think that— see, Mr. Coleman, from what I can tell just looking at several letters that I got from Mr. Coleman, nothing is Mr. Coleman’s fault.” That statement was made while the court was considering Coleman’s motion for new counsel. It in no way related to Coleman’s decision to forego the adjournment.

We think that, ordinarily, the wiser course would be for counsel to spend more than a few minutes preparing for an event as significant as a hearing at which revocation and sentencing decisions will be made. But this is not a case in which “the constructive denial of counsel and the associated collapse of the adversarial system is [ejminently clear.” Moss v. Hofbauer, 286 F.3d 851, 861 (6th Cir. 2002). Given that the particular circumstances of this case do not so obviously suggest that the result below was “inherently unfair,” Cronic, 466 U.S. at 661, 104 S.Ct. 2039, the Strickland framework must be applied. Because Coleman does not meaningfully argue that he was prejudiced by Abell’s alleged failures, see Appellant Br. 9-10, we defer consideration of Coleman’s Strickland claim for collateral review, at which time he will be able to fully develop the record. See United States v. Aguwa, 123 F.3d 418, 423 (6th Cir. 1997) (observing that the preference for considering ineffective-assistance-of-counsel claims on collateral review “stems from the fact that a finding of prejudice is a prerequisite to a claim for ineffective assistance of counsel [under Strickland] and appellate courts are not equipped to resolve factual issues” (citation omitted)). Despite our dissenting colleague’s view, see Dissenting Op. at 622-23, nothing in this opinion suggests that Coleman has waived his Sixth Amendment right to counsel.

Ill

Coleman next claims that his thirty-month sentence is procedurally unreasonable. Ordinarily, for a sentence to be procedurally reasonable, the district court must have “(1) properly calculated the applicable advisory Guidelines range; (2) considered the other [18 U.S.C.] § 3553(a) factors as well as the parties’ arguments for a sentence outside the Guidelines range; and, (3) adequately articulated its reasoning for imposing the particular sentence chosen, including any rejection of the parties’ arguments for an outside-Guidelines sentence and any decision to deviate from the advisory Guidelines range.” United States v. Bolds, 511 F.3d 568, 581 (6th Cir. 2007). In this case, Coleman argues that the district court failed to consider the factors set forth in 18 U.S.C. § 3553(a), failed to consider substance-abuse treatment as an alternative to incarceration, and failed to state in open court its reasons for imposing a sentence three months above the applicable Guidelines range.

We ordinarily review the procedural reasonableness of a sentence for an abuse of discretion. United States v. Daniels, 641 Fed.Appx. 481, 486 (6th Cir. 2016). But where, as here, the defendant fails to raise any objection to the procedural reasonableness of a sentence after the district court explicitly asks for objections, we may review only for plain error. See United States v. Battaglia, 624 F.3d 348, 350 (6th Cir. 2010); United States v. Bostic, 371 F.3d 865, 872-73 (6th Cir. 2004). To show plain error, Coleman must establish (1) that an error occurred; (2) that the error was clear or obvious; (3) that it affected his substantial rights; and (4) that it affected the “fairness, integrity, or public reputation of the judicial proceedings.” United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008) (en banc) (quoting United States v. Gardiner, 463 F.3d 445, 459 (6th Cir. 2006)). We have held that “[a] sentencing error affects a defendant’s substantial rights when there is a reasonable probability that, but for the error, [the defendant] would have received a more favorable sentence.” United States v. Wilson, 614 F.3d 219, 223 (6th Cir. 2010). Applying this standard, we conclude that none of Coleman’s complaints warrants the vacation of his sentence.

A

As adverted to above, when determining a defendant’s sentence upon finding a violation of supervised-release conditions, a district court must consider various sentencing factors, including those set forth in 18 U.S.C. § 3553(a). See 18 U.S.C. § 3583(e). All told, a district court must assess “the nature and circumstances of the offense and the history and characteristics of the defendant; the need to deter criminal conduct; the need to protect the public; the need to provide the defendant appropriate treatment; the pertinent Guidelines or policy statements; the need to avoid unwarranted sentencing disparities; and the need to provide restitution to victims.” United States v. Johnson, 640 F.3d 195, 203 n.1 (6th Cir. 2011) (citing 18 U.S.C. §§ 3553(a), 3583(e)). A district court must also adequately articulate its reasoning for imposing the chosen sentence. Id. at 202. A failure to satisfy both requirements is procedural error that may warrant resentencing. See United States v. Johnson, 356 Fed.Appx. 785, 793-95 (6th Cir. 2009).

Coleman argues that the district court’s explanation of its sentence suggests that it did not consider any of the relevant factors set forth in 18 U.S.C. § 3553(a) or the possibility of treatment. But the requirement that a district court weigh the, factors does not obligate the district court to make express on-the-record “findings” on each one. Appellant Br. 11. As we have emphasized, some factors might prove to be more relevant than others in a given case, and the law thus does not require district courts to “provide a ‘ritualistic’ one-by-one ‘incantation’ of each factor.” United States v. Malone, 404 Fed.Appx. 964, 965 (6th Cir. 2010) (quoting United States v. Moon, 513 F.3d 527, 539 (6th Cir. 2008)). In other words, we do not “read a sentencing transcript in a vacuum.” Id. at 967. Instead, we ask whether the sentencing judge provided an explanation for the sentence sufficient for this court to discern that the judge weighed the relevant factors and did not “simply selee[t] what the judge deem[ed] an appropriate sentence without such required consideration.” Moon, 513 F.3d at 539 (quoting United States v. Jones, 489 F.3d 243, 251 (6th Cir. 2007)). In reviewing the record as a whole, we conclude that the district court’s explanation for Coleman’s thirty-month sentence satisfied this goal.

Read in its entirety, the hearing transcript shows that the district court considered the relevant sentencing factors and chose to give Coleman a relatively lengthy term of imprisonment out of concern for Coleman’s unwillingness to tackle his substance-abuse problem and the corresponding need to deter him from using illegal drugs in the future. In arriving at this conclusion, the district court addressed the nature and circumstances of Coleman’s offense when it admonished him for his decision to continue using illegal drugs while on supervised release. The court explained that Coleman did not “seem to appreciate the fact that when we say do not use illegal substances, that means you don’t use it, regardless of whether” a treatment program is available. The district court also addressed Coleman’s own history and characteristics, noting that he failed to take responsibility for his recurring violations and instead attempted to blame the residential treatment program for not properly treating his addiction. Lastly, the district court explicitly considered and rejected substance-abuse treatment as an alternative to incarceration when it acknowledged that although Coleman had a “weakness” for drugs, his unwillingness to “be helped” in the past strongly suggested that further treatment would not “hel[p] [him] at all.”

In short, the district court clearly and adequately explained its reasons for sentencing Coleman to a thirty-month term of imprisonment and not returning him to treatment, and the court’s explanation reveals that it carefully considered the various factors relevant to sentencing. A district court can, of course, “always say more.” Malone, 404 Fed.Appx. at 966. But in this case, the district court’s thorough discussion of Coleman’s history and problems adequately apprised the parties, the public, and this court of the basis for Coleman’s sentence. The law demands no more.

B

Coleman also challenges the procedural reasonableness of his sentence on the ground that the district court did not acknowledge or explain why it gave Coleman an above-Guidelines sentence. 18 U.S.C. § 3553(c)(2) provides that a district court must give “the specific reason for the imposition of’ an above-Guidelines sentence in open court. This requirement extends to revocation hearings. See Johnson, 356 Fed.Appx. at 793-95; United States v. Manning, 317 Fed.Appx. 517, 523-24 (6th Cir. 2009). Applying 18 U.S.C. § 3553(c)(2), we have held that a district court “must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance.” Daniels, 641 Fed.Appx. at 489-90 (quoting Gall v. United States, 552 U.S. 38, 50, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). A failure to explain that justification to the defendant in open court is error. Ibid.; United States v. Blackie, 548 F.3d 395, 401 (6th Cir. 2008).

In this case, the district court did not explicitly acknowledge that it was imposing a sentence that was three months above the applicable Guidelines range. As our recent decision in United States v. Daniels, 641 Fed.Appx. 481 (6th Cir. 2016), suggests, such a failure might well have been reversible error if an abuse-of-discretion standard applied in this case. Id. at 490-92. But á district court’s failure to explicitly acknowledge that it is imposing an above-Guidelines sentence does not amount to plain error where the district court properly calculates the applicable Guidelines range and provides an explanation for its sentence that makes clear why the imposed sentence fell outside of that range. Compare United States v. Zobel, 696 F.3d 558, 566-69 (6th Cir. 2012) (finding no plain error where district court otherwise adequately explained sentence and acknowledged applicable Guidelines sentencing range), with Blackie, 548 F.3d at 401-02 (explaining that the district court plainly erred when it neither referred to the applicable Guidelines range nor provided specific reasons for an upward variance in court). Such is the case here.

At the start of Coleman’s revocation hearing, the district court calculated Coleman’s maximum revocation sentence of thirty-six months and the applicable Guidelines range of twenty-one to twenty-seven months. In a lengthy colloquy with Coleman, the district court proceeded to consider in depth the applicable sentencing factors, making it clear that it was troubled by Coleman’s obvious and repeated disregard for the supervised-release conditions that the court had imposed in the past. In short, the district court’s discussion left little room for ambiguity for why it believed that an above-Guidelines sentence was necessary in Coleman’s case. Under these circumstances, the district court’s failure to “add an explicit coda” as to how each of its observations supported a variance does not amount to plain error. Malone, 404 Fed.Appx. at 969.

IV

We acknowledge that Coleman’s counsel was given a relatively short amount of time in which to prepare for his client’s revocation hearing. But a presumption of prejudice is not warranted in this case given that Coleman’s revocation hearing presented his attorney with a relatively simple task for which extensive preparation would have been of questionable value. In light of the reality that the parties have not extensively briefed the issue of prejudice on appeal, Coleman’s ineffective-assistance-of-counsel claim would more appropriately be brought in a 28 U.S.C. § 2255 proceeding under the framework set forth in Strickland. Given that Coleman’s sentence withstands his procedural-reasonableness challenge on plain-error review, we AFFIRM the district court’s revocation judgment.

CLAY, Circuit Judge,

dissenting.

Imagine that you are charged with a crime. Being too poor to afford a lawyer, the court appoints one for you. You then meet with your lawyer for the first time. Twelve minutes later, you stand in front of the judge as your lawyer says a single sentence on your behalf. You plead guilty and are sentenced to prison for two and a half years. This is hardly what one would call effective assistance of counsel; and such circumstances could not possibly satisfy the constitutional requirement that a defendant be afforded effective legal representation. Yet, this is exactly what happened to John Coleman when he showed up for court on July 27, 2015. When Coleman stood before the judge that day, he did not get the assistance of counsel guaranteed by the Sixth Amendment. What he got instead was justice on speed dial.

The reason for this dissent is simple. What happened to Coleman — an indigent defendant who had only twelve minutes to meet with his court-appointed lawyer for the first time before being sentenced to prison for violating his supervised release — is precisely the sort of deprivation of counsel against which the .Sixth Amendment was designed to protect. And because the constitutional violation here is so flagrant, Coleman does not need to show prejudice in order to prevail. Rather, because no lawyer could possibly provide effective advice in just twelve minutes — let alone read and digest a twenty-four page presentence investigation report and a ten-page supervised release violation report— Coleman must be presumed to have been prejudiced by the sequence of events which led to his two and a half year prison sentence. His case should therefore be remanded for resentencing.

I.

The majority gives the misimpression that this case should be reviewed in a habeas proceeding under the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which ordinarily applies to claims of ineffective assistance of counsel. But Strickland — which requires a showing of prejudice — does not apply to this case. Rather, this case, which involves a claim of constructive denial of counsel, falls within the per se ineffective assistance of counsel exception set forth in United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). In Cronic, the Supreme Court held that there are “circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.” Id. at 658, 104 S.Ct. 2039. In other words, where the error is so obvious that a court should be aware of the threat to a defendant’s Sixth Amendment right to counsel, courts may do away with Strickland’s prejudice analysis altogether. Id. at 658-59, 104 S.Ct. 2039. See, e.g., United States v. Herrera-Zuniga, 571 F.3d 568, 591-93 (6th Cir. 2009) (discussing possibility that defense counsel’s submission of a letter to the court castigating his client and describing him as unworthy of empathy and “at the bottom of society’s hierarchy” as apparent professional malfeasance potentially constituting per se ineffectiveness); Rickman v. Bell, 131 F.3d 1150 (6th Cir. 1997) (per se violation of the right to counsel where the defense attorney displayed continual hostility to and contempt for his client).

Cronic, not Strickland, applies “when ... the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate.” Cronic, 466 U.S. at 659-60, 104 S.Ct. 2039. In explaining Cronic, the Supreme Court has identified three situations where a defendant need not show prejudice to establish ineffective assistance of counsel:

First and “[mjost obvious” was the “complete denial of counsel.” . . . Second, we posited that a similar presumption was warranted if “counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing.” Finally, we said that in cases like Powell v. Alabama where counsel is called upon to render assistance under circumstances where competent counsel very likely could not, the defendant need not show that the proceedings were affected.

Bell v. Cone, 535 U.S. 685, 696, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002) (citations omitted).

II.

Not surprisingly, the majority does not acknowledge that constructive denial of counsel “can occur under circumstances where even competent counsel could not render assistance,” i.e., Cronic’s third scenario. United States v. Morris, 470 F.3d 596, 602 (6th Cir. 2006). And that is precisely the case here, since no lawyer — not even the most experienced and competent criminal defense attorney — could provide the kind of assistance of counsel required by the Sixth Amendment in just twelve minutes.

When the district court appointed Robert Abell to represent Coleman at his supervised release violation hearing, Abell literally knew nothing at all about Coleman. Abell knew nothing about Coleman’s criminal history; had not reviewed Coleman’s twenty-four page presentence investigation report (“PSR”) (see R. 264, PSR, PagelD# 640-63); had not reviewed Coleman’s ten-page supervised release violation report (see R. 261, Supervised Release Violation Report, PagelD# 610-19); and likely had no idea what Coleman was even accused of doing. Yet, just twelve minutes after meeting his client for the first time— and after being handed thirty-four pages of material — Abell told the court his client would be pleading guilty, and declined the opportunity for an adjournment.

It would have been virtually impossible for Abell, or any lawyer for that matter, to read and digest thirty-four pages of reports in just twelve minutes — especially because the twenty-four page PSR included a calculation of Coleman’s guideline range, which can be complicated for even the most experienced attorneys to understand. See, e.g., Morris, 470 F.3d at 602 (finding constructive denial of counsel where attorney “was precluded from taking basic preparatory steps such as looking at [the defendant’s] prior record in conjunction with the federal sentencing guidelines so as to make an accurate prediction of his guideline range”).

Moreover, even if Abell, as the majority claims, could have discovered mitigating evidence in Coleman’s background during their twelve minute conference (minus whatever time Abell spent reading the relevant reports), it seems virtually impossible that Abell could have done any of the other things a criminal defense lawyer should do when meeting a client for the first time. See id. at 601 (noting that the “ABA Standards for Criminal Justice provide that a thorough discussion with the client is necessary at the outset of representation”) (emphasis added) (citing 1 ABA Standard for Criminal Justice 1(a) & (b)).

Abell should have, at a minimum, evaluated whether Coleman even understood the nature of the proceedings and was able to assist in his own defense, which minimally would have taken at least a few minutes. It also would have taken some time for Abell to establish rapport with Coleman — as any seasoned defense attorney can attest — and Abell would have had to explain the proceedings to Coleman and advise him of his rights. And who would think Abell could have done all of this while at the same time reading thirty-four pages of reports and discovering mitigating evidence in just twelve minutes.

When looking at all the things Abell should have done, it is obvious that Abell’s extreme lack of time for adequate preparation would have precluded any lawyer from providing effective advice or learning anything meaningful about his client. Having no more than twelve minutes to meet with his client and review all the evidence, Abell was in no position to serve as Coleman’s counsel. As a result, Abell failed to employ his legal skills in advocating Coleman’s position at his supervised release violation hearing.

Abell’s inability to serve as Coleman’s advocate is manifested in Abell’s failure to say anything about any of the mitigating factors the district court could have considered. Despite what the majority says, nothing in the record suggests Abell was aware of the mitigating circumstances, such as Coleman’s not getting the substance abuse treatment he needed, and having a wife and child at home. See Maj. Opn. at 613 (“[I]t appears that Abell himself may have been aware of these [mitigating] facts as well”). This is the extent of what Abell said on Coleman’s behalf:

[Court]: Would you like to speak on behalf of Mr. Coleman before I impose sentence?
[Abell]: Judge, I guess the record indicates at worst that Mr. Coleman has an ongoing substance abuse problem that he’s struggled with significantly, and certainly the court has familiarity with his history and I am sime will take that into consideration when determining what action is appropriate today.

(R. 266 at 727-28.)

The district court only learned about the mitigating factors from Coleman, who spoke on his own behalf after Abell’s single sentence statement. See id. at 728-38 (conversation between Coleman and the court). Abell, on the other hand, hardly said anything. The only thing Abell even mentioned was Coleman’s substance abuse problem and his history of addiction, neither of which paint a pretty picture.

An attorney is expected to “forceful[ly] advoca[te]” on behalf of his client in court. Penson v. Ohio, 488 U.S. 75, 85, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). The Sixth Amendment requires “careful advocacy to ensure that rights are not forgone and that substantial legal and factual arguments are not inadvertently passed over.” Id. The right to counsel, therefore, is the “right of the accused to require the prosecution’s case to survive the crucible of meaningful adversarial testing.” Cronic, 466 U.S. at 656, 104 S.Ct. 2039. “The Constitution’s guarantee of assistance of counsel cannot be satisfied by mere formal appointment.” Id. at 654-55, 104 S.Ct. 2039. “The paramount importance of vigorous representation follows from the nature of our adversarial system of justice.” Penson, 488 U.S. at 84, 109 S.Ct. 346. Our legal system is premised “on the well-tested principle that truth — as well as fairness — is best discovered by powerful statements on both sides of the question.” Id. (internal quotation marks omitted). Since it is unlikely that a criminal defendant will adequately be able to fight the government’s case without representation, id. the adversarial process requires that a defendant “have ‘counsel acting in the role of an advocate.’” Cronic, 466 U.S. at 656, 104 S.Ct. 2039 (quoting Anders v. California, 386 U.S. 738, 743, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967)).

As Justice Brennan put it, “[t]o satisfy the Constitution, counsel must function as an advocate for the defendant, as opposed to a friend of the court.” Jones v. Barnes, 463 U.S. 745, 758, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983) (Brennan, J., dissenting); see also Ferri v. Ackerman, 444 U.S. 193, 204, 100 S.Ct. 402, 62 L.Ed.2d 355 (1979) (“Indeed, an indispensable element of the effective performance of [defense counsel’s] responsibilities is the ability to act independently of the Government and to oppose it in adversary litigation.”).

At no point during the hearing did Abell subject the prosecution’s violation of supervised release case to “meaningful adversarial testing.” Cronic, 466 U.S. at 656, 104 S.Ct. 2039. Instead, Abell did just the opposite — he spoke only to emphasize the negative aspects of Coleman’s background, i.e., Coleman’s substance abuse problem and history before the court, without any mention of the mitigating circumstances favoring his client. As a result, Coleman himself was forced to attempt to bring those mitigating factors to the court’s attention. And look what happened when Coleman, an indigent defendant with at most a GED , was forced to become his own advocate — he received a sentence that was three months above the high-end of the sentencing range. Abell did not act as an advocate for Coleman, but rather like a friend of the court and the prosecution— someone whose only role that day was to help the court fast-track Coleman through the system.

m.

The majority opinion makes the incredible claim that what occurred at Coleman’s supervised release violation hearing was his own fault. In other words, the majority says that Coleman is to blame for being fast-tracked through the system simply because he asked for a new lawyer. See Maj. Opn. at 9 (“The speed with which Coleman’s case progressed was therefore determined by Coleman himself, not by Abell, the prosecutor, or the court.”).

The district court, when granting Coleman’s request for new counsel, said it best: “nothing is Mr. Coleman’s fault.” (R. 266 at 725.) And who would argue otherwise— that Coleman should be punished, ie., denied sufficient time to consult with his newly-appointed lawyer, all because he decided to ask for the appointment of new counsel. Essentially, what the majority opinion is saying is that Coleman’s request for new counsel justified the district court in failing to provide him with an attorney who would effectively advocate on his behalf.

The majority also suggests that Coleman’s not asking for an adjournment was his own fault. Here is why the majority opinion is so clearly wrong: Coleman could not possibly be expected to make an informed, strategic decision when he only had twelve minutes to get legal advice. There is no question that Coleman’s acquiescence in going forward was a bad idea; and we need look no further than the two and a half year prison sentence he received as evidence of that. But his agreeing to move forward was the result of not being adequately and properly counseled. In the tense environment of the courtroom setting, Coleman was introduced to his new attorney within seconds of being advised that his existing attorney was being relieved of all responsibility. This is what happens when events move so incredibly fast that the defendant is afforded no time to absorb or reflect upon the significance of what is happening. It is no surprise that a defendant is likely to make the wrong decision when his lawyer has only twelve minutes to meet with him for the first time, as occurred in this case.

It was not Coleman’s fault — as the district court explained' — that he wanted a new lawyer; obviously, from the district court’s comments, the court agreed that it was necessary or appropriate for Coleman to acquire new representation. Accordingly, it was not Coleman’s fault if there was the possibility of any delay resulting from his request for new counsel. Furthermore, it was not Coleman’s fault if any additional time was needed to bring his new counsel up to speed. Nothing that happened here was Coleman’s fault, including the court’s and his own attorney’s decision to rush him through the system. All Coleman did was request new counsel; and the majority’s suggestion that Coleman should be blamed for anything is completely baffling.

In that same vein, the majority suggests that Coleman’s single statement that he “wanted to get [the hearing] out of the way,” (R. 266 at 727), somehow constitutes a waiver of his Sixth Amendment right to counsel. In other words, the majority claims that Coleman waived his right to counsel by telling the court that he did not want a continuance and that he was ready to plead guilty. But the law requires more than that. “[A]n accused will not be deemed to have validly waived his Sixth Amendment right to counsel unless the court has made ‘searching or formal inquiry’ to ensure that his waiver is knowing, intelligent, and voluntary.” Hill v. Curtin, 792 F.3d 670, 677 (6th Cir. 2015) (en banc) (quoting Patterson v. Illinois, 487 U.S. 285, 292 & n. 4, 298-300, 108 S.Ct. 2389, 101 L.Ed.2d 261 (1988)). Where a fundamental constitutional right, such as the right to counsel, is concerned, “courts indulge every reasonable presumption against waiver.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).

Of course, the district court in this case did not make any kind of inquiry into whether Coleman was waiving his right to counsel, and there can be no serious dispute that Coleman’s stray comment that he “wanted to get [the hearing] out of the way” did not constitute a valid waiver. And again, Coleman’s insistence on going forward means little, if anything — it only highlights his lack of understanding of the court’s procedures and what was about to happen.

IV.

When one looks at this case, one cannot help but think about all of the negative stereotypes about the public defender system. Very often in the public’s mind there is this sense that a public defender handles far too many cases at one time, and is not able to dedicate enough time to any particular client. It is probably accurate to say that among many criminal defendants, the public defender system has an unfortunate reputation. This case of rushed justice, in which the inadequacy of the legal representation amounted to virtually no representation at all, does nothing to help that image.

All of this begs the question of what the district court should have done, or how it should have conducted the sentencing proceeding. The answer is obvious. It would have been a simple matter for the court to have adjourned the sentencing to permit newly-appointed defense counsel the opportunity to acquaint himself with his client, the applicable sentencing guidelines, the evidence, and the facts of the case. Obviously, at this juncture, this Court should remand for resentencing with the simple admonition that the district court permit Coleman’s attorney to acquaint himself with the matter in advance of re-sentencing.

The bottom line is that Abell was placed in circumstances in which even the most experienced and competent counsel would not have been able to render effective assistance; and Abell completely failed to subject the prosecution’s case to meaningful adversarial testing. As a result, Coleman was constructively denied counsel, and has established a Sixth Amendment violation under Cronic. And because Coleman is not required, under these circumstances, to show prejudice, his case should be remanded for resentencing. To be blunt, if this situation does not amount to constructive denial of counsel, then nothing will.

      . The majority attempts to create a distraction with its multiple suggestions that this case is more appropriate for collateral review, i.e., in a habeas proceeding. Although it is true that "[a]s a general rule, this Court declines to rule on claims of ineffective assistance of counsel on direct appeal,” United States v. Detloff, 794 F.3d 588, 594 (6th Cir. 2015), that rule only applies when “the record is ... inadequate to evaluate such a claim.” United States v. Foreman, 323 F.3d 498, 502 (6th Cir. 2003). That is not the case here since there is nothing to be gained from any further development of the record. Rather, because the "parties have adequately developed the record, ... the court can elect to hear the issue on direct appeal.” United States v. Pierce, 62 F.3d 818, 833 (6th Cir. 1995).

      . As the majority points out, when the district court appointed Abell to represent Coleman, it confirmed that Abell had a copy of Coleman’s PSR and also the supervised release violation report prepared by the probation office. (See R. 266, Supervised Release Violation Hearing Transcript, PagelD# 725.)

      . The PSR lists Coleman’s education as: “GED (unverified)” (R. 264 at 642).