## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 10-3629

___________ United States of America, *
* Appellee, * * Appeal from the United States v. * District Court for the Eastern * District of Missouri. Sean James Dace, * * Appellant. *

___________ Submitted: October 17, 2011 Filed: November 7, 2011

___________ Before RILEY, Chief Judge, LOKEN and BENTON, Circuit Judges.

___________ RILEY, Chief Judge.

Sean Dace pled guilty, pursuant to a wr itten plea agreement, to conspiracy to manufacture in excess of 50 grams of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846, as well as possession of pseudoephedrine knowing and having reasonable cause to believe it would be used to manufacture methamphetamine, in violation of 21 U.S .C. § 841(c)(2). The district court 1 sentenced Dace to concurrent terms of 105 months imprisonment, below the advisory United

1 The Honorable Carol E. Jackson, United States District Judge for the Eastern District of Missouri.States Sentencing Guidelines (U.S.S.G. or Guidelines) range of 121-151 months, and four years of supervised release. Dace appeals, arguing the district court “procedurally erred in failing to adequately explain” w hy it denied “Dace’s motion for downward departure based on overstated criminal history and failing to address” certain of his arguments for a downward variance. Dace also contends his sentence “is unreasonable because the [district] court did not fully consider the § 3553(a) factors.” We affirm.

I. BACKGROUND In accordance with the plea agreement, the presentence investigation report (PSR) assigned Dace a base offense level of 32, a total offense level of 29, and a criminal history category of IV, resulting in the advisory Guideline range of 121-151 months. Neither Dace nor the government obj ected to the PSR. At sentencing, Dace claimed his criminal history was overstate d because (1) two of his convictions were old and only counted because the present c onspiracy dates back to 2006; (2) he had not been convicted of a felony since 1990; (3) all of his felony convictions were alcohol- or theft-related; and (4) he has im proved his lifestyle since those convictions. Dace also requested a variance because th e Guidelines overestimate the amount of methamphetamine Dace could have made fro m the pseudoephedrin e he possessed (the drug quantity argument), see U.S.S.G. §§ 2D1.1, 2D1.11; U.S.S.G. App. C, Vol. II, Amend. 625 (effective Nov. 1, 2001) (presuming fifty pe rcent of pseudoephedrine can be turned into methamphetamine), and his “personal history and characteristics . . . make[]him less likely to recidivate.” The district court found Dace’s criminal history was not overstated, yet varied the se ntence downward to 105 months because of Dace’s impoverished childhood and history of substance abuse.

II. DISCUSSION In reviewing a challenge to a sentence, we “must first ensure that the district court committed no significant procedur al error.” Gall v. United States , 552 U.S. 38, 51 (2007). In assessing possible procedural erro r, “we review a district court’s factual

-2-findings for clear error and its interpretation and application of the guidelines de novo.” United States v. Bryant , 606 F.3d 912, 918 (8th Cir. 2010). If we discover no procedural error, we “then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.” Gall , 552 U.S. at 51.

Dace first argues the district court pr ocedurally erred by failing to explain adequately why it denied “Dace’s motion for downward de parture based on overstated criminal history.” Because Dace did not sp ecifically object at the sentencing hearing to the adequacy of the district court’s expl anation, we review for plain error. See United States v. Townsend , 618 F.3d 915, 918 (8th Cir. 2010) . Dace fails to show any plain error because the district judge adequately considered and then rejected each of Dace’s arguments for a downward departure. See id.

Dace also contends the district court pr ocedurally erred by failing to address his drug quantity argument and his proposition that his advisory Guideline range was unduly severe because hi s offenses all stemmed from his addictions. District courts generally have discretion to decide whether to respond to every argument. See Rita v. United States , 551 U.S. 338, 356 (2007). The district court was justified in relying on “the Commission’s own reasoning that a Gu idelines sentence is a proper sentence.” Id. at 357. And the district court explicitly considered Dace’s argument that his criminal history was overstate d because his offenses all stemmed from his addictions. The district court did not err.

Finally, Dace maintains his sentence is substantively unreasonable because the district court failed to assess individually each § 3553(a) factor by not “adequately consider[ing] the minor criminal history, substance abuse addiction and the family circumstances of Mr. Dace wh en considering a variance from the advisory guideline range.” The district court expressly weighed all of the factors Dace mentions against the seriousness of the offense, highlighting Dace’s “culpability in this offense as well as the length of time [Dace was] involved in this conspiracy and the role that [Dace]

-3-played in this conspiracy.” The district court did not abuse its discretion simply by weighing these factors differen tly than Dace would do. See United States v. Bridges , 569 F.3d 374, 379 (8th Cir. 2009).

III. CONCLUSION We affirm. 2

______________________________

2 Because we conclude the district court did not err or otherwise abuse its discretion, we do not addre ss the government’s plea agreem ent appeal waiver issue.
-4-