                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0343n.06

                                           No. 12-1492                                  FILED
                                                                                     Apr 05, 2013
                          UNITED STATES COURT OF APPEALS                      DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                )
                                                         )     ON APPEAL FROM THE
             Plaintiff - Appellee,                       )     UNITED STATES DISTRICT
                                                         )     COURT FOR THE WESTERN
v.                                                       )     DISTRICT OF MICHIGAN
                                                         )
TYJUAN DION WALLACE,                                     )
                                                         )
             Defendant - Appellant.                      )
                                                         )

BEFORE: WHITE and DONALD, Circuit Judges; VARLAN, Chief District Judge.*

       HELENE N. WHITE, Circuit Judge. Tyjuan Dion Wallace (Wallace) appeals his 96-

month sentence imposed after he entered an Alford-type guilty plea1 to one count of unlawful use of

a communications facility, in violation of 21 U.S.C. § 843(b). He argues that his sentence is

procedurally and substantively unreasonable. We disagree and AFFIRM.

                                                 I.

                                                 A.

       In his plea agreement, Wallace stipulated to the following facts:




       *
       The Honorable Thomas A. Varlan, Chief United States District Judge for the Eastern District
of Tennessee, sitting by designation.
       1
         An Alford-type guilty plea is “a guilty plea entered by a defendant who either: 1) maintains
that he is innocent; or 2) without maintaining his innocence, ‘is unwilling or unable to admit’ that
he committed ‘acts constituting the crime.’” United States v. Tunning, 69 F.3d 107, 110 (6th Cir.
1995) (quoting North Carolina v. Alford, 400 U.S. 25, 37 (1970)).
No. 12-1492
United States v. Wallace

               On February 23, 2011, Wallace used a cellular telephone assigned phone
       number [231]-457-6647 to contact a[n] undercover police officer for the purpose of
       arranging the sale of a controlled substance. Wallace did not realize that he was
       dealing with an undercover police officer. Wallace agreed to sell the undercover
       police officer 4.5 ounces of cocaine for $3,900 and told the officer to meet him at a
       gas station at the corner of Getty and Broadway in Muskegon, Michigan. Muskegon,
       Michigan, is in the Western District of Michigan.

              The undercover officer arrived at the designated location at the appointed
       time on February 23, 2011, and Wallace again called him, using the same cellular
       telephone, and told the officer to drive to another location in the area of Getty and
       Barney in Muskegon, Michigan. The undercover officer went to this new location.

               When the undercover officer arrived, Wallace approached him. To confirm
       his identity as the person he was supposed to meet, the undercover officer dialed
       telephone number [231]-457-6647 and the telephone possessed by Wallace sounded.
       After placing this call, the undercover officer handed Wallace $3,900 in cash and
       Wallace handed the officer a plastic bag containing purported cocaine.

               The cocaine was submitted to the Michigan State Police Grand Rapids Crime
       Laboratory for analysis. An analysis of the substance delivered by Wallace
       confirmed that the substance weighed 186.44 grams and was a mixture that contained
       cocaine base (crack cocaine.) [Wallace] does not dispute the analysis of the
       controlled substance.

PID 237–38 (formatting altered; telephone number alterations indicated in original; first name

omitted).

                                                 B.

       As a result of the February 2011 drug deal, a federal grand jury charged Wallace with

knowingly or intentionally distributing 28 or more grams of a mixture or substance containing a

detectable amount of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii). Wallace

entered a guilty plea to this charge before a magistrate judge. The magistrate judge, however,

declined to recommend that the district court accept the plea, concluding that it lacked a sufficient

factual basis, given that Wallace’s statements at the plea hearing suggested that he lacked the mens
No. 12-1492
United States v. Wallace

rea of knowingly or intentionally distributing cocaine base. Specifically, Wallace stated that at the

time of the drug transaction, he believed that he had delivered baking soda to the drug buyer in a

sham deal. Meanwhile, the government filed an information and notice of a prior drug conviction,

asserting that Wallace, if convicted, should be sentenced under § 841(b)(1)(B) to a mandatory term

of not less than ten years, and up to life imprisonment, given his prior drug convictions. With a trial

date looming, Wallace then sought to enter a no-contest plea to the drug charge in exchange for the

government’s withdrawal of the information and notice of a prior drug conviction, arguing that the

court should accept the plea even though he could not admit to having knowingly delivered cocaine

base to the undercover officer. The district court declined to accept the plea.

       Before trial commenced on the drug charge, the government filed a superseding information,

adding a charge of unlawful use of a communications facility (i.e., a telephone) in committing,

causing or facilitating the distribution of a mixture or substance containing a detectable amount of

cocaine or cocaine base, in violation of 21 U.S.C. § 843(b). Wallace agreed to enter a guilty plea

to the § 843(b) charge in exchange for dismissal of the underlying drug charge. In his plea

agreement, Wallace stipulated—for purposes of calculating his Sentencing Guidelines (Guidelines)

range—that he was responsible for the distribution of 186.44 grams of a mixture or substance

containing cocaine base.

       Wallace appeared before a magistrate judge and requested that she recommend that the

district court accept an Alford-type guilty plea to the § 843(b) charge. Defense counsel represented

that Wallace was entering the plea because a conviction on the drug offense would result in a

mandatory-minimum ten-year sentence and a Guidelines range of thirty years to life imprisonment,
No. 12-1492
United States v. Wallace

whereas the § 843(b) charge carried a maximum prison term of only eight years (96 months). After

the hearing, the magistrate judge issued a report, recommending that the district court accept the

plea. The magistrate judge noted that the only dispute concerned Wallace’s refusal to admit

knowledge that the delivered substance contained cocaine base, but that he did not submit evidence

disputing the Michigan police laboratory’s finding that the substance contained a detectable drug

quantity. The district court accepted the plea, finding it appropriate under Alford, given that the

sentencing consequences were significant.2 Wallace does not challenge his plea on appeal.

                                                  C.

       Prior to sentencing, a probation officer prepared a pre-sentence report (PSR), concluding that

Wallace’s Guidelines range was 110 to 137 months’ imprisonment based on a total offense level of

25 and criminal history category of VI; but, because the statutorily-authorized maximum prison term

of 96 months for the § 843(b) offense was less than the bottom of the Guidelines range, Wallace’s

guideline sentence was 96 months’ imprisonment. The probation officer arrived at the total offense

level of 25 based on the following calculations, 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 determined
       using the offense level applicable to the underlying offense—here, that is distribution of
       cocaine base in violation of § 841. U.S.S.G. § 2D1.6(a). The applicable guideline for a


       2
          The district court also denied Wallace’s motion for discovery sanctions against the
government, which he brought pursuant to Federal Rule of Criminal Procedure 16 on the basis that
the government had failed to timely turn over to the defense an audio recording of his post-arrest
police interview and police reports summarizing his post-arrest statements. Wallace did not attribute
fault to the U.S. Attorney’s Office but suggested that state investigators had failed to timely provide
the information to federal prosecutors. The district court “concluded without any difficultly” that,
although the government’s disclosure was somewhat tardy, it did not justify dismissal or sanctions.
No. 12-1492
United States v. Wallace

       § 841 offense calls for a base offense level of 28 for an offense involving at least 112 but less
       than 196 grams of cocaine base. Id. § 2D1.1(c)(6). As stipulated in the plea agreement,
       Wallace was responsible for 186.44 grams of a mixture or substance containing cocaine base.

       2) A three-level reduction for acceptance of responsibility and timely notification of intent
       to plead guilty. Id. § 3E1.1(a),(b).

       Further, the probation officer summarized that Wallace reported having a history of substance

abuse and a dysfunctional childhood because his mother introduced him to the drug trade in the

Detroit-area when he was a teenager. The report also reflected that Wallace had a lengthy criminal

history and was on parole at the time the instant offense was committed: he had two state-court drug

offenses involving the sale of crack cocaine, a state-court offense of fleeing and eluding a police

officer, several juvenile offenses, a drug-possession offense, two offenses of driving without a

license, and a larceny arrest. He also had violated the terms of his state probation and stole items

during a boot-camp program.

       In his sentencing memorandum, Wallace stated that he did not object to the PSR’s Guidelines

calculation but sought a downward variance on the basis that a prison term below 96 months would

be sufficient because the Guidelines calculation purportedly overestimated the weight of the crack

cocaine, as the bag that he delivered to the undercover officer contained nine small pebbles of crack

cocaine while the rest of the mixture was baking soda. Wallace, however, submitted no empirical

analysis to confirm his characterization of the mixture. The government recommended a sentence

of “at least” 60 months’ imprisonment.

                                                  D.

       At sentencing, the district court calculated Wallace’s Guidelines range consistent with the

PSR’s scoring. The court confirmed that Wallace had read the PSR and had discussed it with
No. 12-1492
United States v. Wallace

defense counsel, and that the defense had no objection to the scoring and sought only a variance.

After hearing Wallace’s request to be sentenced within a range of 41 to 51 months’ imprisonment,

the district court acknowledged the advisory nature of the Guidelines and took into account the 18

U.S.C. § 3553(a) sentencing factors, but rejected Wallace’s variance request. The court imposed a

96-month prison term—the statutory maximum.3 Defense counsel confirmed that Wallace had no

objections to the district court’s sentencing pronouncement, aside from those arguments already

made. Wallace timely appealed.

                                                  II.

                                                  A.

        We review a defendant’s challenge to the reasonableness of his sentence for abuse of

discretion. United States v. Carter, 510 F.3d 593, 600 (6th Cir. 2007). A sentence must be

procedurally and substantively reasonable. Gall v. United States, 552 U.S. 38, 51 (2007). Thus, we

        must first ensure that the district court committed no significant procedural error,
        such as failing to calculate (or improperly calculating) the Guidelines range, treating
        the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors,
        selecting a sentence based on clearly erroneous facts, or failing to adequately explain
        the chosen sentence—including an explanation for any deviation from the Guidelines
        range.

Id.

        If “the district court’s sentencing decision is procedurally sound,” we “then consider the

substantive reasonableness of the sentence imposed . . . . When conducting this review, [we] will

. . . take into account the totality of the circumstances, including the extent of any variance from the

Guidelines range.” Id. “A sentence is substantively unreasonable if the district court selects a


       3
           Wallace does not challenge the non-imprisonment components of his sentence.
No. 12-1492
United States v. Wallace

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.

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 rebuttable presumption of reasonableness

to a sentence that falls within the advisory Guidelines range. See United States v. Vonner, 516 F.3d

382, 389–90 (6th Cir. 2008) (en banc).

                                                    B.

          The district court provided Wallace with a meaningful opportunity to object to its sentencing

pronouncement, but he did not object. We thus review his alleged procedural defects for plain error.

See Fed. R. Crim. P. 52(b); Vonner, 516 F.3d at 385–86. To establish that the district court

committed plain error, Wallace must show “(1) error (2) that was plain, (3) that affected substantial

rights and (4) that, if uncorrected, would ‘seriously affect[] the fairness, integrity or public reputation

of judicial proceedings.’” United States v. Osborne, 673 F.3d 508, 511 (6th Cir. 2012) (alteration

in original) (quoting United States v. Olano, 507 U.S. 725, 732 (1993)), cert. denied, 133 S. Ct. 205

(2012).

1.        Wallace’s variance request

          Wallace argues that the district court committed procedural error by failing to meaningfully

consider his request for a downward variance. He sought a variance on the ground that the PSR’s

Guidelines calculation overestimated the weight of the crack cocaine he delivered to the undercover

officer and thus the severity of his crime. In arriving at a base offense level of 28 under U.S.S.G.
No. 12-1492
United States v. Wallace

§ 2D1.1(c)(6), the guideline accounts for the entire weight of the substance he delivered to the

officer—186.44 grams—even though the bag purportedly contained only a few grams of cocaine.

       As the transcript reveals, the district court considered Wallace’s variance request and

“explained the basis for rejecting it,” thus allowing for meaningful appellate review. United States

v. Lalonde, 509 F.3d 750, 770 (6th Cir. 2007) (citation and quotation marks omitted). The district

court understood its authority to vary from the Guidelines and reviewed the § 3553(a) factors by

considering Wallace’s history and characteristics; the circumstances of the offense; and the need for

the sentence such as to promote respect for the law, deterrence, and protection of the public. The

district court then rejected Wallace’s variance request:

       So the question then that I’ve got to answer, obviously, is whether the [G]uidelines
       give an appropriate sentence, do they reflect, does it reflect the statutory factors? . . .
       I think in terms of the variance requested, based on the fact that it was mostly baking
       soda and not cocaine, I think that’s a wash really. I don’t think that it provides a
       valid ground to vary below the [G]uidelines. I really don’t. Because I think there are
       just too many other potential dangers involved. And so I think that in this instance
       that counting everything in terms of the drug quantity is fair.

PID 413. As the district court explained just a few moments earlier, and as Wallace agreed, selling

sham cocaine was no less dangerous than if he had sold actual cocaine because it is “not so

uncommon” for drug purchasers to be armed.

       Moreover, the district court committed no plain error by not specifically addressing Wallace’s

meritless contention that his variance request was supported by the Guidelines. See United States

v. Simmons, 587 F.3d 348, 361 (6th Cir. 2009) (“A district court . . . is not obligated to review

defendant’s argument when it lacks any factual basis or legal merit.”); United States v. Gale, 468

F.3d 929, 940 (6th Cir. 2006) (“[A]rguments clearly without merit can, and for the sake of judicial
No. 12-1492
United States v. Wallace

economy should, be passed over in silence.” (citation and quotation marks omitted)). According to

Wallace, “[t]he Guidelines themselves indicate that, in a case like this, only the weight of the

controlled substance should count toward the Guidelines[] range.” He points to application note one

of guideline 2D1.1, which provides:

       “Mixture or substance” as used in this guideline has the same meaning as in 21
       U.S.C. § 841, except as expressly provided. Mixture or substance does not include
       materials that must be separated from the controlled substance before the controlled
       substance can be used. Examples of such materials include the fiberglass in a
       cocaine/fiberglass bonded suitcase, beeswax in a cocaine/beeswax statue, and waste
       water from an illicit laboratory used to manufacture a controlled substance. If such
       material cannot readily be separated from the mixture or substance that appropriately
       is counted in the Drug Quantity Table, the court may use any reasonable method to
       approximate the weight of the mixture or substance to be counted.

U.S.S.G. § 2D1.1, appl. n.1 (emphasis added).

       Wallace stipulated in his plea agreement that, for purposes of his Guidelines range, he was

responsible for the distribution of 186.44 grams of a mixture or substance containing cocaine base.

This resulted in a base offense level of 28 under guideline 2D1.1(c)(6). In his sentencing

memorandum and at the hearing, Wallace confirmed that he had no objection to the PSR’s

Guidelines calculation. Although Wallace frames his argument under guideline 2D1.1’s application

note one in terms of a variance request, his contention is nothing less than an attempt to attack the

PSR’s Guidelines scoring.4

       In any event, Wallace misconstrues guideline 2D1.1. When determining a defendant’s base

offense level using the weight of the substance under guideline 2D1.1’s drug quantity table, a court



       4
        Wallace initially framed his contention as an objection to the PSR’s Guidelines scoring,
although he apparently withdrew such objection after the government warned that it violated the plea
agreement.
No. 12-1492
United States v. Wallace

must consider that, “[u]nless otherwise specified, the weight of a controlled substance set forth in

the [drug quantity] table refers to the entire weight of any mixture or substance containing a

detectable amount of the controlled substance.” U.S.S.G. § 2D1.1(c), n.(A) (emphasis added).

Crack cocaine is not among those controlled substances otherwise specified. Further, under

application note 1 of the guideline, “mixture or substance” has the same meaning as in 21 U.S.C.

§ 841. When Congress provided for mandatory-minimum sentences based on the weight of “a

mixture or substance containing a detectable amount” of a controlled substance under § 841, it

“adopted a ‘market-oriented’ approach to punishing drug trafficking, under which the total quantity

of what is distributed, rather than the amount of pure drug involved, is used to determine the length

of the sentence.” Chapman v. United States, 500 U.S. 453, 461 (1991) (citation omitted); see id. at

459–60 (explaining that, for “drugs like heroin and cocaine, . . . Congress clearly intended the

dilutant, cutting agent, or carrier medium to be included in the weight of those drugs for sentencing

purposes”). In applying the term “mixture or substance containing a detectable amount of the

controlled substance” under guideline 2D1.1, we have rejected the argument that only pure cocaine

counts toward the weight. United States v. Williams, 894 F.2d 208, 214–15 (6th Cir. 1990). Wallace

cites no record evidence or authority for the notion that baking soda must be separated from the

controlled substance before it can be used within the meaning of the guideline.

2.     Wallace’s difficult childhood

       Wallace also argues that the district court failed to adequately consider his difficult childhood

as a potential mitigating factor. However, we presume absent “some affirmative indication in the

record to the contrary” that the district court reviewed all of the relevant information about his
No. 12-1492
United States v. Wallace

background, including the PSR and Wallace’s sentencing memorandum. Gale, 468 F.3d at 941. At

the sentencing hearing, defense counsel noted that she had discussed Wallace’s difficult childhood

in the sentencing memorandum.           Then, in its sentencing pronouncement, the district court

acknowledged that Wallace had “a seriously dysfunctional family history” but emphasized that

Wallace had a long history of crime and drug use. It is thus apparent that the district court “was

‘fully aware’ of the defendant’s circumstances and took ‘them into account’ in sentencing him.”

Vonner, 516 F.3d at 387 (quoting Rita v. United States, 551 U.S. 338, 358 (2007)).

3.        The government’s case

          There is no merit to Wallace’s assertion that the district court failed to take into account the

“weakness” of the government’s case as a mitigating factor. In his plea agreement, Wallace

stipulated that he had agreed to sell drugs to the undercover officer and the delivered substance

contained a detectable amount of cocaine base. The only dispute involves his purported lack of

knowledge or intent to deliver actual drugs. The district court, however, considered that point and

found that it did not weigh in favor of a lesser sentence in terms of whether he should be punished

or whether he had respect for the law. Further, Wallace offers no support for his argument that the

district court was required to sua sponte consider alleged “discovery violations” as a mitigating

factor.

4.        Alleged factual assumptions

          Wallace argues that the district court compounded its procedural errors by relying on false

factual assumptions. “[A] court relies on clearly erroneous facts when the sentencing judge relies

upon erroneous information and the information in question appears to have been an important factor
No. 12-1492
United States v. Wallace

in determining the sentence.” United States v. Cunningham, 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) (vacating sentence as procedurally unreasonable because

the district court failed to adequately explain its decision to vary upward from the Guidelines range,

appeared to base its sentence on theories unsupported by the record, and declined to allow the

defendant to supplement the record to address the court’s concerns).

       Contrary to Wallace’s argument, the district court did not assume that he was guilty of a

greater crime but reasonably took into account that his plea bargain resulted in a sentence

significantly less than what he could have expected if he had gone to trial on the drug charge that

underlies the § 843(b) offense to which he entered the Alford-type guilty plea. Indeed, Wallace

urged the magistrate judge to recommend that the district court accept his plea on the basis that he

would receive the benefit of a lesser sentence. In response to the district court’s inquiry at

sentencing, defense counsel confirmed that the main factors behind the plea agreement were that a

significant amount of the delivered substance was not cocaine base and that Wallace’s post-arrest

statements corroborated his position that he did not knowingly deliver cocaine. In announcing its

sentence, the district court referenced this prior exchange, noting that the plea agreement reflected

a “significant reduction . . . in terms of the seriousness of the offense and the penalty from the

delivery charge”; the 96-month statutory maximum was significantly below what would otherwise

have been the advisory Guidelines range; and the ways in which Wallace “attempt[ed] to minimize

the seriousness of his behavior seem[ed] . . . to have already been taken into account in the benefits

he got from his plea agreement negotiated by his lawyer.” PID 410–11. Wallace cites no authority
No. 12-1492
United States v. Wallace

for the notion that a district court commits procedural error in considering that a defendant has

significantly benefitted from the plea process, particularly when the parties have a factual dispute

in the Alford plea context.

        Wallace next contends that the district court erred by making “false and unsupported factual

assumptions about the potential harm in distributing a baggie of baking soda under the guise of

crack.” But the district court neither found that snorting or injecting baking soda might harm an

unsuspecting buyer nor relied on any such finding as an important sentencing factor. Instead, in

response to Wallace’s argument that he did not intend to sell real drugs, the district court rhetorically

asked whether Wallace considered “if [the substance] had all been baking soda or something else

[and] if the buyer had been a drug user and attempted to use it, what consequence would that have

had?” PID 412. The district court also questioned whether Wallace was showing more respect for

the law—an appropriate § 3553(a) factor—by intending to defraud a potential buyer as opposed to

selling real cocaine. The district court committed no plain error by pointing out the misguided nature

of Wallace’s conduct.

5.      The government’s sentencing position

        Because the district court provided sufficient reasons for the within-Guidelines sentence and

why it rejected Wallace’s variance request, the court was not obligated to specifically address

whether a 60-month prison term (the minimum term urged by the government) would have been an

appropriate sentence. See Vonner, 516 F.3d at 387 (explaining that a district court need not “give

the reasons for rejecting any and all arguments by the parties for alternative sentences,” nor must the

court give “the specific reason” for a within-Guidelines sentence); Gale, 468 F.3d at 940 (“When
No. 12-1492
United States v. Wallace

a district court adequately explains why it imposed a particular sentence, especially one within the

advisory Guidelines range, we do not further require that it exhaustively explain the obverse—why

an alternative sentence was not selected—in every instance.”).

                                                  C.

       As to the substantive reasonableness of Wallace’s sentence, the district court acted within

its discretion in concluding that a 96-month prison term would be sufficient but not greater than

necessary to comply with the purposes of § 3553(a). First, Wallace argues that he was entitled to

a variance on the basis that the bulk of the delivered substance was not pure cocaine, but his

argument fails to rebut the presumptive reasonableness of his within-Guidelines sentence. See

Vonner, 516 F.3d at 389–90. Although not explicitly framed in such terms, his assertion amounts

to little more than a policy disagreement with guideline 2D1.1, under which he was accountable for

the entire weight of the substance. The district court was not required to vary from the Guidelines

based on the notion that only the weight of the pure drug should count toward his sentencing

determination. See United States v. Brooks, 628 F.3d 791, 800 (6th Cir. 2011) (“[T]he fact that a

district court may disagree 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.”), cert. denied, 131 S. Ct. 3077 (2011). Also, the

district court permissibly determined that the dangers associated with the illegal drug trade justified

counting the entire weight of the substance, notwithstanding Wallace’s alleged intent to sell only

sham cocaine, or that the amount of actual cocaine may have been less than is normally found.
No. 12-1492
United States v. Wallace

          Wallace’s reliance on United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010), is misplaced.

In Dorvee, the Second Circuit held that a statutory-maximum 240-month prison term for a first-time

offender who pleaded guilty to distribution of child pornography was procedurally and substantively

unreasonable. See 616 F.3d at 176, 188. In reaching this conclusion, our sister circuit cautioned that

district courts, when determining sentences for child pornography offenders, must be careful not to

impose sentences that do not conform with the § 3553(a) factors. Id. at 184–88. The court was also

troubled by the district court’s imposition of the statutory maximum because the district court:

(1) apparently assumed that the defendant was a “pedophile” and “was likely to actually sexually

assault a child, a view unsupported by the record evidence” given that the defendant presented expert

testimony to the contrary, id. at 183; (2) offered only a “cursory explanation of its deterrence

rationale,” id. at 184; and (3) incorrectly stated that its sentence was “relatively far below” an

improperly-calculated Guidelines range, id. (internal quotation marks omitted). The only similarity

between Dorvee and this case is that Wallace also received a statutory-maximum prison term.

Dorvee did not involve distribution of a controlled substance, the offense underlying Wallace’s

§ 843(b) conviction. Moreover, unlike Dorvee, the district court’s sentencing decision here did not

rest on unsupported factual assumptions or an improperly calculated Guidelines range. Wallace is

not a first-time drug offender and he presented no evidence that he was unlikely to sell drugs in the

future.

          Second, as already addressed with respect to the procedural reasonableness of Wallace’s

sentence, the district court did not base its sentencing decision on false assumptions about the

dangers of selling counterfeit drugs. Third, the record does not reflect that the district court simply
No. 12-1492
United States v. Wallace

assumed that the benefit Wallace received in pleading to the instant offense reflected any warranted

reduction in his sentence. Rather, the district court acknowledged that Wallace’s attempts to

minimize the seriousness of his behavior had been taken into account during the plea process and

went on to address the appropriate sentencing factors. In the context of an Alford-type guilty plea

where the defendant refuses to admit all the elements of the crime, the district court acted within its

discretion in concluding that any issue about Wallace’s lack of knowledge or intent to sell real drugs

had been accounted for during the plea negotiations, particularly given defense counsel’s

representation to that effect.

        Last, concerning Wallace’s difficult childhood, we have “explained that regular, recurring

circumstances need not be discussed by a judge each and every time they are raised by a criminal

defendant, especially in the absence of some further development suggesting an exceptional

hardship.” United States v. Collier, No. 11-2376, 2012 WL 5907499, at *4 (6th Cir. Nov. 27, 2012)

(unpublished) (citation omitted). “Unfortunately, troubled childhoods plague many criminal

defendants” and is one of those recurring circumstances that need not be discussed by the district

court in every case, particularly when the defendant fails to present evidence suggesting “an arguably

meritorious claim for a lesser sentence based on his difficult childhood.” Id. (citation omitted).

Even were we to credit Wallace’s assertion that his difficult childhood stands out as noteworthy

compared to other defendants, the district court acted within its discretion in concluding that this

factor was outweighed by his lengthy criminal history.

                                                 III.

        For the foregoing reasons, we AFFIRM Wallace’s judgment of conviction.
