RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 24a0029p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ANTWAUN DEMETRIUS ALLEN,

Defendant-Appellant.

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No. 22-2158

Appeal from the United States District Court

for the Western District of Michigan at Grand Rapids.

No. 1:22-cr-00090-1—Hala Y. Jarbou, District Judge.

Argued: October 27, 2023

Decided and Filed: February 14, 2024

Before: WHITE, STRANCH, and NALBANDIAN, Circuit Judges.

_________________

COUNSEL

ARGUED: Paul L. Nelson, FEDERAL PUBLIC DEFENDER’S OFFICE, Grand Rapids, 

Michigan, for Appellant. Kathryn M. Dalzell, UNITED STATES ATTORNEY’S OFFICE, 

Grand Rapids, Michigan, for Appellee. ON BRIEF: Paul L. Nelson, FEDERAL PUBLIC 

DEFENDER’S OFFICE, Grand Rapids, Michigan, for Appellant. Jonathan Roth, UNITED 

STATES ATTORNEY’S OFFICE, Grand Rapids, Michigan, for Appellee.

_________________

OPINION

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NALBANDIAN, Circuit Judge. Antwaun Allen pleaded guilty to possessing 

methamphetamine with intent to distribute. At sentencing, he sought a downward variance from 

his Guidelines range, raising the government’s role in his offense, policy critiques of the 

>
No. 22-2158 United States v. Allen Page 2

Guidelines’ treatment of meth purity, as well as other mitigating offense and character traits. The 

district court sentenced Allen to 108 months, at the bottom of his Guidelines range. 

Allen makes three arguments on appeal. First, Allen claims the sentence is procedurally 

unreasonable because the district court failed to address the government’s provocation of his 

offense. Second, Allen claims that the sentence is procedurally unreasonable because the district 

court impermissibly ceded its sentencing discretion to Congress. Finally, Allen argues the 

sentence is substantively unreasonable because the district court exclusively relied on the meth’s 

weight and purity, as reflected in the Guidelines, to the neglect of his “whole person.” Because 

we conclude his three claims lack merit, we AFFIRM.

I.

Allen put himself on the police’s radar by distributing relatively small amounts of highquality meth to a client. Allen acted as a middleman, ferrying meth from a dealer in Kalamazoo, 

Michigan, to a client in Van Buren County. Allen told investigators that he exclusively sold 

meth to this customer, a woman he knew only as “Kristen.” Allen claims that, starting in 

January 2022, he picked up one to five ounces of meth in Kalamazoo a couple of times per 

month and delivered them to Kristen.

By March 2022, the police began using Kristen as a confidential informant to conduct 

controlled meth purchases from Allen. At the government’s behest, Kristen contacted Allen 

twice to purchase relatively small amounts of meth: 68 grams on March 22, 2022, and 126 grams 

a week later. A lab test revealed that the second meth purchase was 100 percent pure. Kristen 

then significantly escalated her drug demand, ordering a full pound (about 453 grams) of meth 

on April 7, 2022. 

That same day, the police stopped Allen’s car on the way back from a meth run to 

Kalamazoo. A search uncovered a black plastic bag containing a pound of 99-percent-pure 

meth. After receiving a Miranda warning, Allen freely admitted he was delivering the pound of 

meth to Kristen.
No. 22-2158 United States v. Allen Page 3

Allen pleaded guilty to a single count of possessing methamphetamine with intent to 

distribute. The Presentence Investigation Report (PSR) accounted for the meth from the three 

controlled buys, plus a conservative estimate of the drugs Allen had delivered to Kristen before 

she turned confidential informant. This sum yielded an initial offense level of 34, minus 3 points 

for acceptance of responsibility, for a total offense level of 31. Given Allen’s criminal history 

category of I, his total offense level of 31 yielded a Guidelines range of 108 to 135 months’ 

imprisonment. Allen accepted the PSR, including its calculation of his Guidelines range. He 

then requested a downward variance through his Sentencing Memorandum and at his sentencing 

hearing. 

Allen raised various policy critiques of the meth Guidelines, claiming (1) that their focus 

on quantity and purity fails to properly measure culpability, (2) that they were not developed 

using an “empirical approach,” and (3) that the purity thresholds (unchanged since 1995) are 

outdated because “the Mexican cartels’ increased control over the entire distribution line has 

increased the purity of the drug in average circulation.” R.37, Def.’s Sent. Mem. at 7–8, PageID 

109–10. Allen also highlighted various mitigating character traits, such as his steady 

employment history and tight-knit family bonds. Most important for this appeal, Allen argued he 

should not be treated as a “kingpin,” given his limited history of drug dealing. Id. at 10, PageID 

112. Allen emphasized he had “no prior history of drug trafficking.” Id. The “principal driver 

of the offense level here was the amount specifically requested by law enforcement” because 

Allen had dealt only smaller amounts before the controlled buys started. Id. at 10–11, PageID 

112–13.

At the sentencing hearing, the district court asked Allen to explain his request for a 

downward variance. Allen renewed his three primary policy arguments, while also bringing up 

his work history and family life again to maintain that he was an “atypical defendant,” “not a 

kingpin” or “even a recidivist offender.” R.45, Sent. Tr. at 6–7, PageID 159–60. 

The district court acknowledged that the “guidelines are advisory” but used them as “a 

starting point” before conducting “an individualized assessment,” invoking the relevant 

18 U.S.C. § 3553(a) factors to guide its sentence. Id. at 21, PageID 174. And the court 

attempted to address “all the arguments” that Allen “made in support of a lower sentence” by 
No. 22-2158 United States v. Allen Page 4

“going through the list,” accepting that Allen had no “history of drug trafficking” and was “not 

this kingpin.” Id. at 21–22, PageID 174–75. And the court noted Allen’s commitment to his 

family and stable employment history. But it emphasized the “seriousness of the offense” and 

“the amounts that were involved,” explaining that it was “the first time” it had “seen 100 percent 

purity of meth,” a factor that made Allen’s dealing “all the more dangerous.” Id. at 22, PageID 

175. The court expressed its agreement with Congress’s decision “that certain amounts needed 

to be sentenced accordingly . . . because of the[ir] dangerousness.” Id. For these reasons, the 

court denied the variance but sentenced Allen to 108 months, at the bottom of his Guidelines 

range.

After imposing the sentence, the district court asked Allen whether it had “addressed on 

the record all non-frivolous arguments that have been asserted”—as required by United States v. 

Bostic, 371 F.3d 865, 873 (6th Cir. 2004). R.45, Sent. Tr. at 26, PageID 179. In response, Allen 

restated three points for the record: (1) not all the meth sold was 100 percent pure, (2) the 

amount of meth was “driven by the government’s request,” and (3) there was no evidence in the 

record that he had been dealing drugs beyond the period listed by the PSR. Id. at 27, PageID 

180. The court kept the sentence at 108 months, briefly acknowledging the first and third 

points—but making no comment about the second one. 

Allen timely appealed.

II.

First, we address Allen’s contention that his sentence is procedurally unreasonable. 

Sentences are procedurally reasonable when district courts “properly calculate the guidelines 

range, treat the guidelines as advisory, consider the § 3553(a) factors and adequately explain the 

chosen sentence.” United States v. Grossman, 513 F.3d 592, 595 (6th Cir. 2008). The only 

question here is whether the district court properly explained its sentence. When “a defendant 

raises a particular argument in seeking a lower sentence, the record must reflect both that the 

district judge considered the defendant’s argument and that the judge explained the basis for 

rejecting it.” United States v. Richardson, 437 F.3d 550, 554 (6th Cir. 2006). But “the lack of a 

detailed discussion does not constitute procedural error because ‘a sentencing judge is not 
No. 22-2158 United States v. Allen Page 5

required to explicitly address every mitigating argument that a defendant makes, particularly 

when those arguments are raised only in passing.’” United States v. Brooks, 628 F.3d 791, 798 

(6th Cir. 2011) (quoting United States v. Madden, 515 F.3d 601, 611 (6th Cir. 2008)).

A.

Allen claims his sentence is procedurally unreasonable because the district court failed to 

address the government’s role in his offense. This argument rests on an uncontested fact: Allen 

sold most of the meth calculated into his sentence during the three controlled buys. But the form 

of this argument has mutated over the course of this appeal, taking different shapes at Allen’s 

sentencing, in his opening brief to us, and in his reply.

In his sentencing memo and at sentencing, Allen’s argument was simple: he merited a 

variance because his limited dealing history meant he was not a “kingpin.” R.37, Def.’s Sent. 

Mem. at 10, PageID 112; R.45, Sent. Tr. at 6, 11, PageID 159, 164. His references to the 

government’s role supported this claim. Allen’s sentencing memo’s claim that “the amount 

specifically requested by law enforcement” was the “principal driver of the offense level” was 

the second sentence in a paragraph characterizing Allen’s culpability in these exchanges. R.37, 

Def.’s Sent. Mem. at 10–11, PageID 112–13. Indeed, the claim followed a sentence explaining 

that “Allen was a very novice and inexperienced street dealer, not a ‘kingpin.’” Id. at 10, PageID 

112. And, at sentencing, Allen’s reference to the “amount specifically requested by the 

government” preceded an explanation that “[t]here was never an amount even approaching that 

figure”—indicating that the reference was tied to his argument about his minor dealing history 

before the controlled buys. R.45, Sent. Tr. at 27, PageID 180. It also responded to the 

government’s argument that the drug quantities showed Allen was a serious dealer because 

“somebody doesn’t wake up one morning and sell” or “have access even to a pound of 

methamphetamine.” Id. at 17, PageID 170.

So Allen raised the government’s role in his offense to support an argument that he was a 

minor dealer rather than a “kingpin”—not to introduce another argument. The district court 

addressed this argument at the sentencing hearing, acknowledging that Allen was not a “kingpin” 

and agreeing that he lacked “any history of drug trafficking” prior to his dealings with Kristen. 
No. 22-2158 United States v. Allen Page 6

Id. at 22, PageID 175. Since the district court addressed this argument at the sentencing hearing, 

there is no procedural error. See United States v. Clayton, 937 F.3d 630, 643 (6th Cir. 2019) (“As 

the district court demonstrated its consideration of these issues, we see no procedural error 

here.”). 

Allen’s opening brief then recasts his variance argument as one “regarding police 

provocation of the offense,” claiming he made this argument in both his Sentencing Memo and at 

his sentencing hearing. Appellant Br. at 11–13. Because the district court did not reference the 

controlled buys in explaining the sentence, Allen concludes it “did not address this issue at 

sentencing”—a procedural error. Id. at 12. 

Under the most generous interpretation, Allen adverted to this provocation argument for 

the first time at sentencing in response to the Bostic question. R. 45, Sent. Tr. at 27, PageID 

180.1 We require a “clear articulation of any objection and the grounds therefor,” to “aid the 

district court in correcting any error, tell the appellate court precisely which objections have been 

preserved and which have been forfeited, and enable the appellate court to apply the proper 

standard of review to those preserved.” Bostic, 371 F.3d at 873 (quoting United States v. Jones, 

899 F.2d 1097, 1102–03 (11th Cir. 1990), overruled on other grounds by United States v. Morrill, 

984 F.2d 1136 (11th Cir. 1993)). Failure to state “a sufficiently articulated objection” will result 

in plain-error appellate review. Id. at 871. 

Putting aside the propriety of raising an entirely new argument in response to the Bostic

question, Allen’s response to the Bostic question did not clearly indicate he was raising a separate 

argument about government provocation. Simply mentioning a fact that could support such an 

argument—that the controlled buys were greater than his usual meth sales—is not enough. 

Allen’s response lacked any reference to government provocation and contained no reasoning or 

legal authority that would alert the district court to such an argument. Instead, raising the fact of 

government involvement was consistent with the argument that Allen had made in his sentencing 

1The Bostic question provides a “last-chance approach to clarify[] objections to a criminal sentence.” 

United States v. Vonner, 516 F.3d 382, 391 (6th Cir. 2008) (en banc). To “aid the district court” in addressing all 

arguments for a variance, defendants should generally raise all non-frivolous arguments before the question. Bostic, 

371 F.3d at 873 (quoting United States v. Jones, 899 F.2d 1097, 1102–03 (11th Cir. 1990). 
No. 22-2158 United States v. Allen Page 7

memorandum and at the hearing—namely, that he wasn’t a “kingpin.” R.37, Def.’s Sent. Mem. 

at 10, PageID 112; R.45, Sent. Tr. at 6, 11 PageID 159, 164. And the court had already addressed 

that issue.

It’s true that we have, on rare occasions, found plain error even when a defendant did not 

raise an argument in response to the Bostic question. See United States v. Wallace, 597 F.3d 794, 

803–04, 807 (6th Cir. 2010); United States v. Thomas-Mathews, 81 F.4th 530, 539, 543–46 (6th 

Cir. 2023). But when the defendant did not raise the argument in the hearing, he at least raised it 

in his sentencing memorandum. See Thomas-Mathews, 81 F.4th at 536, 543. And in those 

cases, we invoked the principle that a district court must address non-frivolous arguments that a 

defendant has raised. See id. at 544; Wallace, 597 F.3d at 803–04. And even that principle is 

circumscribed if the defendant is raising an argument that is “conceptually straightforward.” See

United States v. Simmons, 587 F.3d 348, 361–62 (6th Cir. 2009) (quoting United States v. 

Vonner, 516 F.3d 382, 388 (6th Cir. 2008) (en banc)). Here, Allen did not expressly raise a 

government provocation argument before the district court; rather, in response to the Bostic 

question, he clarified that the drug quantity “was an amount specifically requested by the 

government.” R.45, Sent. Tr. at 27, PageID 180. As in Vonner, Allen’s “arguments were 

conceptually straightforward, and the district court imposed a within-guidelines sentence,” and 

“[o]n this record, we cannot say that any error was so plain or obvious that the judge was 

‘derelict in countenancing it.’” 516 F.3d at 388 (quoting United States v. Gardiner, 463 F.3d 

445, 459 (6th Cir. 2006)). Likewise, this record does not show that “[Allen]’s sentencing was 

marked by ‘significant procedural error’” qualifying as “a plain error.” Simmons, 587 F.3d at 

363 (quoting Gall v. United States, 552 U.S. 38, 51 (2007)). 

Allen’s reply brief reconfigures this argument once more, this time into a request that we 

follow the lead of several sister circuits and “recognize sentencing entrapment and sentencing 

manipulation as legitimate sentencing considerations.” Reply Br. at 3, 6–7 (collecting cases). 

Although Allen’s reply discusses them together, these are two separate claims. Sentencing 

entrapment occurs when “the government induces a defendant to commit a more serious crime 

when he was predisposed to commit a less serious offense.” United States v. Mack, 841 F.3d 

514, 523 (D.C. Cir. 2016) (quoting United States v. Walls, 70 F.3d 1323, 1329 (D.C. Cir. 1995)). 
No. 22-2158 United States v. Allen Page 8

And “[s]entencing manipulation occurs when the government unfairly exaggerates the 

defendant’s sentencing range by engaging in a longer-than-needed investigation and, thus, 

increase[s] the drug quantities for which the defendant is responsible.” United States v. Torres, 

563 F.3d 731, 734 (8th Cir. 2009). To Allen, his case provides a clear example of both: “But for 

the police’s efforts, Mr. Allen would have sold significantly less to Kristen and his advisory 

guideline range would have been significantly lower.” Reply Br. at 7. So he asks us to find that 

the district court’s failure to address sentencing enhancement or manipulation was a procedural 

error.

But we see no procedural error. Allen failed to raise this argument until his appellate 

reply brief. Before then, Allen never once mentioned “entrapment” or “manipulation.” And, 

until the reply, Allen alleged neither that the controlled buys had induced him “to commit a more 

serious crime,” Mack, 841 F.3d at 523, nor that the government had engaged “in a longer-thanneeded investigation” to increase his Guidelines range, Torres, 563 F.3d at 734. So Allen 

forfeited these arguments. See United States v. Kalymon, 541 F.3d 624, 632 (6th Cir. 2008) 

(“Issues raised for the first time in a reply brief are considered waived on appeal.”). We will 

consider the availability of sentencing entrapment or manipulation claims in our Circuit another 

day.

For these reasons, we reject Allen’s claim that the district court erred in failing to address 

the government’s role in his offense—in each of its three iterations.

B.

Allen also claims his sentence is procedurally unreasonable because the district court 

impermissibly ceded discretion to Congress. Allen first made this argument in a Rule 28(j) letter 

to the court,2 pointing to United States v. Thomas-Mathews, 81 F.4th 530 (6th Cir. 2023) as 

supplemental authority. In Thomas-Mathews, we found a sentence procedurally unreasonable 

because the district court “impermissibly ceded its discretion to Congress” when it treated the 

Guidelines’ “crack-to-powder ratio as effectively mandatory.” 81 F.4th at 542–43.

2Rule 28(j) of the Federal Rules of Appellate Procedure allows parties to “advise the circuit clerk by letter” 

of “pertinent and significant authorities [that] come to a party’s attention after the party’s brief has been filed—or 

after oral argument but before decision.” 
No. 22-2158 United States v. Allen Page 9

Allen compares his case to Thomas-Mathews, claiming that the “district court’s 

statements in the instant case similarly show that the district court impermissibly ceded its 

discretion to Congress.” Appellant 28(j) Letter at 2. He argues that the district court rejected a 

downward variance because “Congress had determined that certain amounts of 

methamphetamine, and certain purity levels, ‘need to have accountability’ and ‘needed to be 

sentenced accordingly.’” Id. at 1 (quoting R.45, Sent. Tr. at 12, 22, PageID 165, 175). 

According to Allen, these statements prove that his sentence was driven by the court’s “belief 

that Congress decided that this amount of methamphetamine of this purity required a guideline 

sentence and a variance therefore was not appropriate.” Id. at 2.

Allen did ask the district court to vary downward based on a policy disagreement with the 

meth Guidelines. But, on appeal, Allen failed to argue that the district court treated those 

Guidelines as mandatory—that is, until he sent the 28(j) letter. And we do not allow parties to 

raise new arguments through a 28(j) letter. Carter v. United States, 820 F. App’x 392, 395 n.1 

(6th Cir. 2020) (“Rule 28(j) letters may not raise new arguments or issues that could have been 

raised previously.”); In re Lewis, 398 F.3d 735, 748 n.9 (6th Cir. 2005) (same). So Allen’s 

argument that the district court impermissibly ceded its discretion to vary to Congress has not 

been properly raised on appeal.

But, even if Allen had properly made this argument, Thomas-Mathews does not help him. 

Unlike the court there, the district court here never suggested its hands were tied by Congress. 

See Thomas-Mathews, 81 F.4th at 541–43. There, “[t]he district court repeatedly emphasized its 

belief that Congress, and not the courts, should determine sentencing for crack and powder 

cocaine.” Id. at 542. In contrast, here, the court’s comments show it understood its power to 

vary from the Guidelines. The court saw its job as making an “individualized assessment,” 

accepting the Guidelines as “advisory,” only a “starting point,” and just “one factor.” R.45, Sent. 

Tr. at 12, 14, 21, 24, PageID 165, 167, 174, 177. The court addressed various mitigating facts 

and did not merely defer to the Guidelines. And the court did not simply reject Allen’s policy 

arguments for a variance by deferring to Congress’s judgment. Instead, the court invoked its 

own experience, noting it was the first time it had seen 100 percent purity meth, which it 

emphasized made Allen’s dealing “all the more dangerous” to the community. Id. at 22, PageID 
No. 22-2158 United States v. Allen Page 10

175. So Allen’s claim that the district court impermissibly ceded its discretion to Congress is 

belied by the record. 

III.

Finally, Allen claims his sentence is substantively unreasonable because the district court 

“based the sentence on only one factor—the guideline range based on the weight and purity of 

the methamphetamine sold.” Appellant Br. at 16. He contends that policy flaws in the meth 

Guidelines rendered them a “poor indicator of culpability,” at least in his case.3 Id. By 

sentencing Allen within a flawed Guidelines range, “the district court failed to properly consider” 

Allen’s “whole person”—ignoring both “the offense-related issues” and his “personal 

characteristics.” Id. at 24, 26 (citing Concepcion v. United States, 597 U.S. 481, 491 (2022)). 

We give “a rebuttable presumption of reasonableness to a properly calculated, withinGuidelines sentence,” such as Allen’s. United States v. Graham, 622 F.3d 445, 464 (6th Cir. 

2010). The question before us is not whether Allen’s sentence best serves the aims of 

sentencing—only whether the district court could reasonably choose to impose it. A sentence is 

substantively unreasonable only when “the district court selects a sentence arbitrarily, bases the 

sentence on impermissible factors, fails to consider relevant sentencing factors, or gives an 

unreasonable amount of weight to any pertinent factor.” United States v. Conatser, 514 F.3d 508, 

520 (6th Cir. 2008). 

Allen’s attempt to rebut the presumption of substantive reasonableness fails. First, the 

district court did not err in refusing to “vary from the applicable guideline range based solely on” 

Allen’s policy critique of the Guidelines. See Appellant Br. at 16. To be sure, district courts may 

vary from the Guidelines for policy reasons alone. Kimbrough v. United States, 552 U.S. 85, 

106–07 (2007). But district courts need not depart from the Guidelines whenever defendants 

assert a policy critique. Brooks, 628 F.3d at 800 (“[T]he fact that a district court may disagree 

3Allen’s policy critique of the meth Guidelines includes claims: (1) that they are not based on an “empirical 

approach” but on “the statutory mandatory minimum sentences established by Congress in the hastily-enacted AntiDrug Abuse Act of 1986 (ADAA),” Appellant Br. at 18, (2) that they lead to “unjustified sentencing disparities,” id.

at 19, and (3) that they “focus on quantity and purity” of drugs sold, “minimiz[ing] the significance of other relevant 

factors,” id. at 22.
No. 22-2158 United States v. Allen Page 11

with a Guideline for policy reasons and may reject the Guidelines range because of that 

disagreement does not mean that the court must disagree with that Guideline or that it must reject 

the Guidelines range if it disagrees.”). The district court did not abuse its discretion by staying 

within the Guidelines range despite Allen’s policy critiques—however persuasive this court may 

(or may not) find them. 

Second, the district court did not place an unreasonable, much less exclusive, weight on 

“the guideline range based on the weight and purity of the methamphetamine sold.” See

Appellant Br. at 16. Contrary to Allen’s claim, the court did not base Allen’s sentence solely on 

the weight and purity of the meth he sold–or even on the Guidelines alone.4 The district court 

relied on the Guidelines as a “starting point.” R.45, Sent. Tr., at 20–21, PageID 173–74. And, to 

be sure, the court highlighted the meth’s high purity to show the danger Allen’s dealing created 

for his community. But the court also considered “the nature and circumstances of the offense” 

as well as Allen’s “history and characteristics.” Id. at 21, PageID 174. The court’s decision to 

sentence him within the Guidelines stemmed not from disregard for these mitigating factors, but 

from an assessment that they did not sufficiently outweigh the gravity of his offense to justify a 

variance. 

The district court’s decision to sentence Allen at the very bottom of the range confirms 

that it properly considered Allen’s “whole person”—suggesting it considered these mitigating 

factors to give Allen a lower sentence, though still within the Guidelines range. Deeming Allen’s 

sentence substantively unreasonable would mean finding a district court abuses its discretion by 

choosing a sentence within the Guidelines range after considering all relevant factors—an 

outcome at odds with our precedents.5 “Doing so would essentially amount to substituting our 

judgment for the district court’s as to how long the defendant should serve.” United States v. 

4Allen argues that the district court’s reliance on the Guidelines range indicates it considered only the 

drugs’ “weight and purity to the exclusion of other relevant sentencing factors.” Appellant Br. at 16. But Allen’s 

Guidelines range, of course, derived from factors on top of the drugs’ weight and purity, including his acceptance of 

responsibility and criminal history. In any event, although the Guidelines’ calculation incorporated factors beyond 

the drugs’ weight and purity, the district court considered other factors beyond the Guidelines range.

5We need not consider Allen’s argument that his sentence was rendered substantively unreasonable by the 

district court’s failure to address “the government’s role in the offense,” since the argument was first raised by his 

reply brief. Reply Br. at 8; see Kalymon, 541 F.3d at 632.
No. 22-2158 United States v. Allen Page 12

Collington, 461 F.3d 805, 811 (6th Cir. 2006) (affirming a sentence outside the Guidelines 

range). 

IV.

For these reasons, we AFFIRM.