NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 13a0343n.06 No. 12-1492 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, Plaintiff - Appellee ,

v. TYJUAN DI ON WAL L ACE, Def

endant - Appellant. ) ) ) ) ) ) ) ) ) ) O N A P P E A L F R O M T H E U N I T E D S T A T E S D I S T R I C T C O U R T F O R T H E W E S T E R N D I S T R I C T O F M I C H I G A N

BEFORE: WHITE and DONALD, Circ uit Jud ges; VA RLAN, Chief District Judge. * H ELE NE N. WHITE , Circuit Judge. Ty juan Dion Wallace (Wallace ) appea ls his 96- month sentenc e imposed afte r he enter ed an Alford -ty pe g uilty plea to one count of unlawful use of

1

a communications fac ility , in violation of 21 U.S. C

. § 843(b). He argues that his sentenc e is proce durally

and substantively

unrea sonable. We disag ree and AF FI RM.

I. A. I n his plea ag ree ment, Wallace stipulated to the following fac ts:

T h e H o n o r a

b le T h o ma s A. Var lan, Chief United States District J udg e for the Easter n Distric t * of Tenne ssee, sitting by

desig nation. An Alford -ty

pe g uilty plea is “a g uilty plea enter ed by a defe ndant who either: 1) maintains 1 that he is innocent; or 2) without maintaining his innocenc e, ‘is unwilling or unable to admit’ that he commit ted ‘acts constituting the c rime.’” United States v. Tunning , 69 F.3d 107, 110 (6th Cir. 1995) (quoting North C

arolina v. Alford , 400 U.S. 25, 37 (1970)).No. 12-1492

United States v. W

allace On Fe bruar

y 23, 2011, W all ace used a cellular telephone assig ned phone number [231] -457-6647 to contac t a[n] underc over police office r for the purpose of arr ang ing the sale of a controlled s ubstance

. Wallace did not rea liz e that he was dealing with an u n d erc over police office r. Wallace ag ree d to sell the underc over police office r 4.5 ounces of coca ine for $3,900 and told the office r to me et him at a g as station at the corne r of Getty and Br oadwa y in Muskeg on, Michig an. Muskeg on, Michig an, is in the Western District of Michig an. The underc over office r arr ived at the desig nated location at the appointed time on Fe bruar

y 23, 2011, and Wa l l ac e ag ain called him, using the same cellular telephone, and told the office r to drive to another location in the are a of Getty and Ba rney in Muske g on, Michig an. The underc over office r went to this new location. When the underc over office r arr ived, Wallace approa ched him. To confirm his identity as the p er s o n he was supposed to meet, the underc over office r dialed telephone number [231]- 4 5 7

- 6647 and the telephone possessed by Wallace sounded. After placing t h i s ca l l, the underc over office r handed Wallace $3,900 in cash and Wallace ha

nded the of

fice r a pla stic bag containing purported c ocaine

. The coca ine was submitt ed to the Michig an State Police Gra nd Rapids Crime L aboratory for analy sis. An analy sis of the substance delivere d by Wallace confirme d that the substance weig hed 186.44 g rams and was a mix ture that contained coca ine base (cr ack coca ine.) [W allace ] does not dispute the an aly sis of the controlled substanc e. PI D 237–38 (for

matting altere d; telephone number alterations indicated in orig inal; first name omitted). B. As a result of the Fe b ru ar y 2 011 drug deal, a fede ral g rand jury char g ed Wallace with knowing ly or in t enti onally distributing 28 or more g rams of a mix ture or substance containing a detec table amount of coca ine base, in violation of 21 U.S.C. § 841(a) (1) and (b)( 1)(B )(iii). Wallace
enter ed a g u i l t y p l ea t o this char g e befor e a mag istrate judge

. The mag istrate judge , howeve r, declined to r ecommend that the district c ourt ac cept the plea, concluding that it lac ked a sufficie nt fac tual basis, g iven that Wallace’ s statements at the plea hear ing sug g ested that he lacke d the mensNo. 12-1492

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allace

rea of knowing ly or intentionally distributing coca ine base. Specifica lly , Wallace stated that at the time o f t h e d ru g transac tion, he believed that he had delivere d baking soda to the drug buy er in a sham deal. Meanw hile, the g overnme nt filed an information and notice of a prior drug conviction,

asser ting that Wallace, if convicted, should be sentenc ed under § 841(b)( 1)(B ) to a mandatory term of not less than ten y ear s, and up to life imprisonment, g iven his prior drug convictions. Wit h a trial date looming, Wallace then soug ht to enter a no-conte st plea to the drug char g e in exchang e for the g overnme nt’s withdrawa l of the information and notice of a prior drug conviction, arguing that the
court should acc ept the plea even though he could not admit to having knowing ly delivere d coca ine base to the unde rcove r off icer . The district cour

t declined to ac cept the ple a. Be fore trial commence d on the drug char g e, the g overnme nt filed a superse ding information, ad d i n g a ch arg e of unlawful use of a communications fac ility (i.e., a telephone) in committing, causing or fac ilitating the distribution of a mix ture or substance containing a detec table amount of

coca ine o r coca ine base, in violation of 21 U.S.C. § 843(b). Wallace ag ree d to enter a guilty plea
to the § 8 4 3 (b ) charg e in exchang e for dismiss al of the underly ing drug char g e. I n his plea ag ree ment, Wallace stipulated—for purposes of calc ulating his Sentencing Guidelines (Guidelines) rang e—that he was re s p o n s i b l e for the distribution of 186.44 g rams of a mix ture or substance containing coca ine base

. Wallace appea

red b ef o re a mag istrate judge and reque sted that she rec ommend that the district court acc ept an Alford -ty pe g uilty plea to the § 843(b) char g e. Def ense counsel repr esente d that Wallace was enter ing the plea beca use a conviction on the drug off en s e would result in a mandatory -minimum ten-y ear sentenc e and a Guidelines rang e of thirty y ear s to life imprisonment,No. 12-1492

United States v. W

allace wher eas the § 843(b) char g e car ried a maxi mum prison term of only eig ht y ear s (96 months). After the h ea ri ng , the mag istrate judge issued a repor t, rec ommending that the district court acc ept the plea. The mag istrate judge noted that the only dispute conce rned Wallace’ s refusal to admit knowledg e that the delivere d substance contained coca ine base, but that he did not submit evidenc e disputing the Michig an police labora tory ’s finding th at t h e s u b stance contained a detec table drug quantity

. T he district court acc epted the plea, finding it appropr iate under Alford , g iven that the
sentenc ing c onsequenc es we re sig nificant. Wallace doe s not challeng e his plea on a ppeal. 2 C. Prior to sentenc ing, a probation office r prepa red a pre- sentenc e repor

t (PSR), concluding that Wallace’ s Guidelines rang e was 110 to 137 months’ imprisonment based on a total offe nse level of 25 and criminal history cate g ory of VI ; but, beca use the statutorily -authorized maxi mum prison term of 96 months for the § 843(b) offe nse was less than the bottom of the Guidelines rang e, Wallace’ s g uideline sentenc e was 96 months’ imprisonment. The probation office r arr ived at the total offe nse level of 25 based on the following calc ulations, using the November 2011 edition of the Guidelines manual: 1) A base offense level of 28. The base offense level for a § 843(b) offense is deter mined using the offe nse level applicable to the underly ing offe nse—her e, that is distribution of coca ine base i n v i o l at i on of § 841. U.S.S.G. § 2D1.6(a ). The applicable g uideline for a

The district court also denied Wallace’ s m o tion for discovery sanctions ag ainst the 2 g overnme nt, which he broug ht pursuant to Fe dera l Rule of Criminal Procedur e 16 on the basis that the g overn m en t h ad failed to timely turn over to the defe nse an audio rec ording of his post-arr est police interview and police repor ts summarizing his post-arr est statements. Wallace did n o t attribute fault to the U.S. Attorney ’s Offic e but sug g ested that state investigators had failed to timely provide the information to f

eder al prosec utors. The district c ourt “conc luded without a ny difficultly ” that, althoug h the g overnme nt’s disclosure was somewhat tardy , it did not justify dismiss al or sanctions.No. 12-1492

United States v. W

allace § 841 offe nse calls for a base offe nse level of 28 for an offe nse involving at least 112 but less th an 1 96 g rams of coca ine base. Id. § 2D1.1(c )(6)

. As stipulated in the plea ag ree ment, Wallace was responsible for 186.44 g rams of a mix ture or substance contain in g coca ine base. 2) A thre e-le vel reduc tion f or acc eptanc e of re sponsibili ty and timely

notification of intent to plead g uilty

. Id. § 3E1.1(a) ,(b). Fur ther, the probation office r summarize d th a t Wa ll a c e r e p o r

te d h a v in g a history of substance abuse and a dy sfunctional childhood beca use his mother introduced him to the drug trade in the Detroit-a rea when he was a teena g er. The repor t also ref lected that Wallace had a leng thy criminal history and was on parole at the time the instant offe nse was committed: he had two state-c ourt drug offe nses involving the sale of cra ck co ca i n e, a state-c ourt offe nse of flee ing and eluding a police office r, sever al juvenile offe nses, a drug -possession offe nse, two offe nses of drivin g wi t h o u t a license, and a larceny arr est. He al so had viol ated the terms of his state probation and st ole i tems during a boot-c amp prog ram. I n his sentenc ing memorandum, Wallace stated that he did not object to the PSR ’s Guidelines calc ulation but soug ht a downwar d varia nce on the basis that a prison term below 96 months would be sufficie nt be cause the Guidelines calc ulation purportedly overe stimated the weig ht of the cra ck

coca ine, as the bag that he delivere d to the underc over office r contained nine small pebbles of cra ck

coca ine while the rest of the mix ture wa s baking soda. Wallace, howeve r, submitt ed no empirica l analy sis to confirm his c hara cter ization of the mix ture. The g overnme nt r ecommende d a sentenc e of “at least” 60 months’ imprisonment. D. At sentenc ing, the district court calculate d W allace ’s Guidelines rang e consistent with the PSR ’s sco ri ng . The court confirme d that Wallace had rea d the PSR and had discussed it withNo. 12-1492

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allace defe nse counsel, and that the defense had no objection t o the s co ri ng and sought only a variance

. After hear ing Wallace’ s reque st to be sentenc ed within a rang e of 41 to 51 months’ imprisonment, the district c ourt acknow ledg ed the advisory nature of the Guidelines and took into acc ount the 18 U.S.C. § 3553(a) sentenc ing fac tors, but reje cted Wallace’ s varia nce reque st. The court imposed a 96-month prison term—the statutory maxi mum. Def ense counsel confirme d that Wallace had no 3 objections to the district court’s sentenc ing pronounce m en t , aside from those arguments alre ady made. Wallace timely

appea led. II. A. We revie w a defe ndant’s challeng e to the rea sonablene ss of his sentenc e for abuse of discretion. United States v. Carte r , 5 1 0 F. 3 d 5 9 3, 600 (6th Cir. 2007). A sentenc e must be proce durally and substantively rea sonable. Gall v. United States , 552 U.S. 38, 51 (2007). Thus, we must first en s u re that the district court committed no signific ant proce dural err or, such as failing to calc ulate (or improperly calc ulating) the Guidelines rang e, trea ting the Guidelines as m an d at o ry , failing to consider the [18 U.S.C.] § 3553(a) fac tors, selec ting a sentenc e based on clea rly err oneous fac ts, or failing to adequately explain the chosen sentenc e—including an explanation for any deviation from th e Gu id e lines rang e. Id. I f “the district court’s sentenc ing d ecision is proce durally sound,” we “then consider the substantive rea sonablene ss of the sente nce imposed . . . . When c onducting this review, [we] will

. . . take into acc ount the totality of the circ umstances, including the extent of any varia nce from the Guidelines rang e.” Id. “A sentenc e is substantively unreas o n ab l e if the district court selec ts a

Wallace doe s not challeng e the non- imprisonment components of his sentence

. 3No. 12-1492

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allace sentenc e arbitra

rily , bases the sentenc e on impermissible fac tors, fail s to c o n s id e r r e le v a n t s e n tencing fac tors, or g ives an unrea sonable amount of weig ht to any pertinent fac tor.” Uni t ed S t a t es v. Camiscione , 591 F.3d 823, 832 (6th Cir. 2010) (quoting United States v. Lapsins , 570 F.3d 758, 772 (6th Cir. 2009) ) (quotation marks omitted). We apply a re buttable pre sumption of rea sonablene ss to a sentenc e that falls within the advisory Guidelines rang e. See United States v. Vonner , 516 F.3d 382, 389–90 (6th Cir. 2008) (e n banc)

. B. The district court provided Wallace with a meaning ful opportunity to object to its sentenc ing pronounce ment, but he did not object. We thus revie w his alleg ed proce dural defe cts for plain err or. See Fe d. R. Crim. P. 52(b); Vonner , 516 F. 3 d at 3 8 5

– 8 6. To establish that the district court committed plain err or, Wallace must show “(1) err or (2) that was plain, (3) that aff ecte d substantial rig hts and (4) that, if uncorr ecte d, would ‘ser iously aff ect[] the fairne ss, integ rity or public reputa tion of judicial proc eeding s.’” United States v. Osborne , 673 F.3d 508, 511 (6th Cir. 2012) (alter ation in orig inal) (quoting United States v. Olano , 507 U.S. 725, 732 (1993)) , cert. denied , 133 S. Ct. 205 (2012). 1. Wallace’s var iance re quest Wallace argues that the district court committed proce dural err or by failing to meaning fully consider his re quest for a

downwar d varia

nce. H e soug ht a var iance on the g round that the PSR’s Guidelines calc ulation overe stimated the weig ht of the cra ck coca ine he delivere d to the underc over office r and thus the s ever ity of hi s crime. I n arr iving at a base offe nse l evel of 28 under U.S.S .G.No. 12-1492

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allace § 2 D1 .1(c) (6), the g uideline acc ounts for the entire weig ht of the substance he delivere d to th e office r—186.44 g rams—eve n though the bag purportedly contained only a few g rams of coca ine. As the transcr i p t reveals, the district court considere d Wallace’ s varia nce reque st and “explained the basis for reje cting it,” thus allowing for meaning ful appellate revie w. United States

v. Lalonde , 509 F.3d 750, 770 (6th Cir. 2007) (citation and quotation ma rks omitted). The district
court understood its authori t y to vary from the Guidelines and revie wed the § 3553(a) fac tors by considering Wallace’ s history and char acte ristics; the circ umstances of the offe nse; and the need for the s entenc e suc h as to promote respect for the l aw, deterre nce, and protection of t he publi c. The district court then re

jected Wallac e’s va

rianc e re quest: So the question then that I ’ve g ot to answe r, obviously , is whether the [G] uidelines g ive an appropr iate sentenc e, do they ref lect, does it ref

lect the statutory fac tors?

. . . I think in terms of the varia nce reque sted, based on the fac t that it was mostly baking soda and not coca ine, I think that’s a wash rea lly

. I don’t think that it p ro v i des a valid g round to vary below the [G] uidelines. I rea lly don’t. Be cause I think there are just too m any

other potential da

ng ers involved. And so I think that in this i nstance that counting ever

y thing in ter

ms of the drug quantity

is fair. PI D 413. As the district court explained just a few moments ear lier, and as Wallace ag ree d, selling sham coca ine was no l es s d an ger o us than if he had sold actua l coca ine beca use it is “not so uncommon” for

drug purcha sers to be a

rmed. Moreove r, the district court committed no plain e r r o r b y n o t s p e c if

ic a ll y a d d r e s s in g Wallace’ s meritless contention that his varia nce r equest wa s supported by the Guidelines. See U

nited States

v. Simmons , 587 F.3d 348, 361 (6th Cir. 2009) (“A district co u rt

. . . is not obligated to revie w defe ndant’s arg ument when it lacks any fa ct u al b as i s or l eg al m erit.”) ; United St ates v. Gale , 468 F.3d 929, 940 (6th Cir. 2006) (“[A]rgume nts clea rly without merit can, and for the sake of judicialNo. 12-1492

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allace economy should, be passed over in silence.” (citation and quotation marks omitted)). Acc ording to Wallace, “[t] he Guidelines themselves indic at e that, in a case like this, only the weig ht of the controlled substance should count toward the Guidelines[] rang e.” He points to application note one of g uideline 2D1.1, which pr ovides: “M i x ture or substance” as used in this g uideline has the same meaning as in 21 U.S.C. § 841, except as expressly provided. Mixture or substance does not inc lude materials that must be separated from the controlled substance before the controlled substance can be used

. Ex amples of such materia ls include the fiberg lass in a coca ine/fiberg lass bonded suitcase, beesw ax in a coca ine/beesw ax statue, and waste water from an illicit laboratory used to manufa cture a controlled substance. I f such materia l cannot rea dily be separ ated from the mix ture or substance that appropr iately is counted in the Drug Quantity Table, the court may use any rea sonable method to approximate the weig ht of the mix ture or substanc e to be c ounted. U.S.S.G. § 2D1.1, appl. n.1 (empha sis added). Wallace stipulated in his plea ag ree ment that, for purposes of his G uidelines rang e, he was responsible for the distribution of 186.44 g rams of a mix ture or substance containing coca ine base. This re s u l t ed i n a base offe nse level of 28 under g uideline 2D1.1(c )(6)

. I n his sentenc ing memorandum and at the hear ing, Wallace confirme d that h e h ad no objection to the PSR ’s Guidelines calc ulation. Although Wallace frames his argument under g uideline 2D1.1’s application note one in ter

ms of a varia

nce reque st, his contention is nothing less than an attempt to attack the PSR ’s Guidelines scor ing. 4 I n any event, Wallace misconstrues g uideline 2D1.1. When deter mining a defe ndant’s base offe nse level using the weig ht of the substance under g uideline 2D1.1’s drug quantity table, a court

Wallace initially fram ed his contention as an objection to the PSR ’s Guidelines scoring , 4 althoug h he appar ently withdrew such objection afte r the g overnme nt war ned that it violated the plea ag ree ment.No. 12-1492

United States v. W

allace must consider that, “[u] nless otherwise spe cified, the weig ht of a controlled subst ance set forth in the [drug quantity ] table ref ers to the entire weight of any mix ture or substance co n t ai n i n g a detec table amount of the controlled s u b s t an ce .” U.S.S.G. § 2D1.1(c ), n.(A) (empha sis added)

. Crack coca ine is not among those controlled substances otherwise s pecif ied. Fur ther, under application note 1 of t he guideline, “mix ture or substance” has t he same meaning as i n 2 1 U.S.C. § 8 4 1

. When Congr ess provided for mandatory -minimum sentenc es based on the weig ht o f “a mix ture or substance containing a detec table amount” of a controlled substance under § 841, it “adopte d a ‘marke t-oriented’ approa ch to punishing drug traff icking , under which the total quantity of what is distributed, rathe r than the amount of pure drug involved, is used to deter mine the leng th of the sentenc e.” Chapman v. United States , 500 U.S. 453, 461 (1991) (citation omitted); see id. at 459–60 (explaining that, for “drug s like heroin and cocai n e, . . . Congr ess clea rly intended the dilutant, cutting ag ent, or car rier medium to be included in the weig ht of those drug s for sentenc ing p u rp o ses”)

. I n apply ing the term “mix ture or substance containing a detec table amount of th e controlled substance” under g uideline 2D1.1, we have reje cted the argument that only pure coca ine
counts toward the weig ht. United States v. W illiams , 894 F.2d 208, 214–15 (6th Cir. 1990). Wallace cites no rec ord evidenc e or authority for the notion that baking soda must be separat ed fr o m the controlled substanc e bef

ore it ca n be used w ithin the meaning of the g uideline. 2. Wallace’s diff

icult child hood Wallace also argues that the district court failed to adequ a te ly c o nsider his difficult childhood

as a potential mitigating fac tor. Howeve r, we presume a bsent “some affirma tive indication in the

rec ord to the contra

ry ” that the district court revie wed all of the rele vant in fo rm ati on about hisNo. 12-1492

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allace backg round, including the PSR and Wallace’ s sentenc ing memorandum. Gale , 468 F.3d at 941. At the sentenc ing hear ing, defe nse counsel noted that she had discussed Wallace’ s difficult childhood in the sentenc ing memorandum. Then, in its sentenc ing pronounce ment, the distr i ct court acknow ledg ed that Wallace had “a serious l y dy sfunctional family history ” but emphasized that W al l ac e h ad a l o n g history of crime and drug use. I t is thus appar ent that the district court “wa s ‘fully awa re’ of the defe nd ant’s circ umstances and took ‘them into acc ount’ in sentenc ing him.” Vonner , 516 F.3d at 387 (quoting Rita v. United States , 551 U.S. 338, 358 (2007)). 3. The governm ent’s c ase There is no merit to Wallace’ s asser tion that the district court failed to take into acc ount the “we akness” of the g overnm en t ’s case as a mitigating fac tor. I n his plea ag ree ment, Wallace stipulated that he had ag ree d to sell drug s to the underc over office r and the delivere d substance contained a detec table amount of coca ine base. T h e o n l y d i spute involves his purported lack of knowledg e or intent to deliver actua l dr ug s. The district court, howeve r, considere d that point and found that it did not weig h in f avor of a lesser sentenc e in te rms of whether he should be punished

or whether he had respe ct for the law. Fur ther, Wallace offe rs no support for his argument that the district court was require d to s u a s p o n t e consider alleg ed “discove ry violations” as a mitigating fac tor. 4. Alleged factual assu m ptions Wallace a rg ues that t he district cour t compounded its proce dural e rror s by rely ing on f alse fac tual assumptions. “[A] court re lies on clea rly err oneous fa cts when the sentenc ing judge relies upon err oneous in f

ormation and the information in question appea rs to have been an important fac torNo. 12-1492

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allace in deter mining the sentenc e.” United States v. Cu n ningham , 669 F.3d 723, 730 (6th Cir. 2012) (citation and internal quotation marks omitted), cert. denied , 133 S. Ct. 366 (2012); cf. United States

v. Hreha , 429 F. App’x 579 (6th Cir. 2011) (vac ating sentenc e as proce durally unrea sonable beca use the district court failed to adequately explain its decision to vary upwar d from the Guidelines rang e, appea red to base its sentenc e on theor i es u n s u p ported by the rec ord, and declined to allow the defe ndant to supplement the re cord to a ddress the c ourt’s conc erns)

. Contrary to Wallace’ s ar gu m en t, the district court did not assume that he was g uilty of a g reater cr i m e b u t reasonably took into acc ount that his plea barg ain resulted in a sentenc e signific antly less than what he could have expected i f h e h ad go n e to trial on the drug charg e that underlies t h e § 8 43(b) offe nse to which he enter ed the Alford -ty pe g uilty plea. I ndeed, Wallace urg ed the mag istrate judge to r ecommend that the district c ourt acc ept his plea on the basis that he would rec eive the benef it of a lesser sentenc e. I n re s p o nse to the district court’s inquiry at sentenc ing, defe nse counsel confirme d that the main fac tors behind the plea ag ree ment wer e that a signific ant amount of t he delivered substanc e was not coca ine base and that Wallace’ s post-arr est statements cor

roborated his position t hat he did not knowing ly deliver coca ine. I n announcing its
sentenc e, the district c ourt ref ere nced this prior exchang e, noting that the plea ag ree ment ref lected

a “sig nificant red u ct i o n . . . in terms of the seriousness of the offe nse and the penalty from the delivery char g e”; the 96-month statutory maxi mum was signific antly below what would otherwise have been the advisory Guidelines rang e; and the way s in which Wallace “attempt[ed] to minimi ze the seriousness of his behavior seem[ed]

. . . to have alre ady been taken into acc ount in the benef its he g ot from his plea ag ree ment neg otiated by his lawy er.” PI D 410–11. Wallace cites no authorityNo. 12-1492

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allace for the notion that a district court commits proce dural err or in considering th at a d efe ndant has signific antly benef

itted from the plea process, particularly when t h e p ar t ies have a factual di spute in the Alford plea c ontext

. Wallace next contends that the district court err ed by making “fa lse and unsupported fac tual assumptions about the potential harm in distributing a bag g ie of baking soda under the g uise of

cra ck.” But the district court neither found that snorting or inje ct i n g b ak i n g soda might harm an unsuspecting buy er nor relied on any such fi n d i n g as an important sentenc ing fac tor. I nstead, in response to Wallace’ s argument that he did not intend to sell rea l drug s, the district court rhetoric ally asked wh ether Wallace considered “if [ the s ubstance ] had all been baking soda or something else [and] if the buy er had been a druguser a nd attempted to use it, wha t c onsequenc e would that have had? ” PI D 412. The district court also questioned whether Wallace was showing more respe ct for the law—an appropr iate § 3553(a) fac tor—by intending to defr aud a potential buy er as opposed to selling rea l coca ine. The district court committed no plain err or by pointing out the misguided nature of Wallace ’s conduc t. 5. The governm ent’s sente ncing p osition Be cause the district court provided sufficie nt rea sons for the within-Guidelines sentenc e and why it reje cted Wallace’ s varia nce reque st, the court was not obliga ted to specific ally addre ss whether a 60-month prison term (the minimum term urg ed by the g overnme nt) would have been an appropr iate sente nce. See V onner , 516 F.3d at 387 (explaining that a dis trict court ne ed not “g ive the rea sons for reje cting any and all arguments by the parties for alterna tive sentenc es,” nor must the court give “the s p ec i fic reason” for a within-Guidelines s entenc e); Gale , 468 F.3d at 940 (“WhenNo. 12-1492

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allace a district cour

t adequately

explains why it imposed a particula r sentenc e, espec ially one within the advisory Guidelines rang e, we do not further require that it exhaustively explain the obverse

— why an alter native sente nce w as not selec ted—in ever y instance.” ). C. As to the s ubstantive rea so n ab l en ess of W allace ’s s entenc e, the district court acted withi n its discretion in concluding that a 96-month prison term would be sufficie nt but not g reater than

nece ssary t o comply with the purposes of § 3553(a)

. First, W allace argues t hat he was entitl ed to

a varia nce on the basis that the bulk of the delivere d substance was not pure coca ine, b u t his argument fails to rebut the presumptive re as o n ableness of his within-Guidelines sentenc e. See Vonner , 516 F.3d at 389–90. Although not expl icitly framed in such terms, his asser tion amounts
to littl e more than a policy disag ree ment with g uideline 2D1.1, under which he was acc ountable for the entire weig ht of the substance. The district c ourt was not r equire d to va ry from the Guidelines based on the notion that only the weig ht of the p u re d ru g should count toward his sentenc ing d etermination. See United States v. Brooks , 628 F.3d 791, 800 (6th Cir. 2011) (“[T] he fact t h at a district court may disag ree with a Guideline for policy rea sons and may reje ct the Guidelines rang e beca use of that disag ree ment does not mean that the court must disag ree with that Guideline or that it must reje ct the Guidelines rang e if it disag ree s.”), cert. denied, 131 S. Ct. 3077 (2011). Also, the district court permissibly deter mined that the dang ers associate d with the illega l drug trade justified

co u n t i n g t h e entire weig ht of the substance, notwithstanding Wallace’ s alleg ed intent to sell onl y sham coc aine, or

that the amount of a ctual coc aine may have be en less than is normally found.No. 12-1492

United States v. W

allace Wallace’ s relianc e on United States v. Dorv ee , 616 F.3d 174 ( 2d Cir. 2010) , is misplace d. I n Dorve e , the Second Circuit held that a statutory -maxim um 240-month prison term for a first-time offe nder who pleade d g uilty to distribution of child pornog raphy was proce durally and substantively

unrea sonable. See 616 F.3d at 176, 188. I n rea ching this conclusion, our sister circ uit cautioned that district courts, when deter mining sentenc es for child pornog raphy offe nders, must be car eful not to impose sentenc es that do not confor m with the § 3553(a) fac tors. Id. at 184–88. The court was also troubled by the district court’s imposit i o n o f t he statutory maxi mum beca use the district court: (1) appar ently assum ed t h at the defe ndant was a “pedophile” and “wa s likely to actua lly sexually assault a child, a view unsupported by the rec ord evidenc e” g iven that the defe ndant prese nted expert testimony t o t h e co n trary , id. at 183; (2) offe red only a “cur sory explanation of its deter renc e rationale ,” id. at 184; and (3) incorre ctly stated that its sentenc e was “r el at i v el y far below” an improperly -ca lculated Guidelines rang e, id. (interna l quotation marks omitted). The only simil arity betwee n Dorve e and this case is that Wallace als o re ce ived a statutory -maxim um prison term. Dorve e did not involve distribution of a cont ro l led substance, the offe nse underly ing Wallace’ s § 843(b) conviction. Moreove r, unlike Dorve e , the district court’s sentenc ing decision here did not rest on unsupported fac tual assumptions or an improperly calc ulated Guidelines rang e. Wallace is
not a first-time drug offe nder and he prese nted no evidenc e that he was unlikely to sell drug s in the future. Second, as alre ady addre ssed with respe ct to the p ro ce d u ral rea sonablene ss of Wallace’ s sentenc e, the district court did not base its sentenc ing decision o n fa l s e assumptions about the dang ers of selling counter feit drug s. Third, the rec ord does not ref lect that the district court simplyNo. 12-1492

United States v. W

allace assumed that the benef

it Wallace rec eived in pleading to the instant offe nse ref lected any war

rante d reduc tion in his sentenc e. Rather, the district court acknow ledg ed that Wallace’s attempts to minimi ze the s eriousness of his behavior had been t aken into acc ount during the pl ea proce ss and went on to address the appr opriate se ntencing fac tors. I n the context of an Alford -ty pe g uilty plea wher e the defe ndant ref

uses to admit all the elements of the crime, the district court acte d within its discretion in concluding that any issue about Wallace’ s lack of knowledg e or intent to sell rea l drug s had been acc ounted for during the plea neg otiations, particula rly g iven defe nse counsel’s repr esenta tion to that effec t. L ast, conce rning Wallace’ s difficult childhood, we have “expl ained that regular, recur ring circ umstance s n ee d n o t b e dis cussed by a judge each and every time they are raised by a criminal defe ndant, espec ially in the abs en ce of some further development sug g esting an exceptional hardship.” United States v. Colli er , No. 11-2376, 2012 WL 5907499, at *4 (6th Cir. Nov. 27, 2012) (unpubl ished) (citation omitted). “Unf ortunately , troubled childhoods plag ue many criminal defe ndants” and is one of those rec urring circ umstances that need not be discussed by the dis trict
court in ever

y case , particula

rly when the defe ndant fails to prese nt evidenc e sug g esting “an arguably meritorious claim for a lesser sentenc e based on his difficult childhoo d

. ” Id

. (c itation omitted). Even wer e we to cre dit Wallace’s as sertion that his difficult childhood stands out as noteworthy compar ed to other defe ndants, the district co u rt ac t ed within its discretion in concluding that this fac tor was outwe ighe d by his leng thy

criminal history

. III. For the fore g oing r easons, we AFF I RM W allace ’s judg ment of convic tion.