United States v. Maxfield, No. 15-2339 (7th Cir. 2016)
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Maxfield was searched by law officers who discovered more than 100 pseudoephedrine pills and half a gram of methamphetamine; their search of his motel room revealed other items used to make methamphetamine. He admitted manufacturing methamphetamine. Maxfield was released and warned to discontinue his illegal activities. One week later, Maxfield sold methamphetamine to a confidential informant. Maxfield pled guilty to conspiring to manufacture and distribute methamphetamine, 21 U.S.C. 846, 841(a)(1), manufacturing methamphetamine, distributing methamphetamine, and possessing a listed chemical knowing it would be used to manufacture a controlled substance. The PSR concluded that Maxfield was responsible for 144 grams of methamphetamine. Because Maxfield had prior felony convictions for residential burglary and aggravated battery, he was a career offender with an offense level of 34, U.S.S.G. 4B1.1, 4B1.2(a)(2) . After a reduction for acceptance of responsibility, with a criminal history score of 22, his guidelines range was 188 to 235 months’ imprisonment. Maxfield objected to his career offender designation, asking the court to consider that he entered the residence with a key and that his was a non‐violent burglary. He emphasized mitigating factors: drug addiction, childhood abuse, family deaths. The court denied the motion for a downward departure and sentenced Maxfield to 188 months’ imprisonment. The Seventh Circuit affirmed.
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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 15 2339 UNITED STATES OF AMERICA, Plaintiff Appellee, v. TRAVIS COLE MAXFIELD, Defendant Appellant. ____________________ Appeal from the United States District Court for the Southern District of Illinois. No. 14 CR 30197 2 — Nancy J. Rosenstengel, Judge. ____________________ ARGUED JANUARY 27, 2016 — DECIDED FEBRUARY 11, 2016 ____________________ Before POSNER, KANNE, and HAMILTON, Circuit Judges. PER CURIAM. Travis Maxfield challenges the 188 month prison sentence imposed on him for his convictions related to his manufacture and distribution of methamphetamine. He contends that the sentencing court erred by denying his request for a downward departure based on his argument that one of the felonies used to designate him a career of fender, though technically a crime of violence, was not in fact violent. But the district court considered Maxfield’s ar 2 No. 15 2339 gument both as a request to depart downward and within the discussion of the sentencing factors in 18 U.S.C. § 3553(a). Thus, we affirm the sentence. I. BACKGROUND Maxfield manufactured methamphetamine for personal use and sale, using boxes of over the counter cold and aller gy medication containing pseudoephedrine that he bought or paid others to buy for him. He was searched by law en forcement agents who discovered more than 100 pseudoephedrine pills and about half a gram of metham phetamine; their search of his motel room revealed other items used to make methamphetamine, and he admitted manufacturing methamphetamine. Maxfield was released and warned to discontinue his illegal activities. One week later, Maxfield sold half a gram of methamphetamine to a confidential informant. Maxfield was indicted for one count of conspiring to manufacture and distribute methamphetamine, see 21 U.S.C. §§ 846, 841(a)(1), one count of manufacturing methamphet amine, § 841(a)(1), one count of distributing methampheta mine, § 841(a)(1), and two counts of possessing a listed chemical knowing it would be used to manufacture a con trolled substance, § 841(c)(2). Maxfield pled guilty to the charges without a plea agreement. A probation officer filed a presentence investigation re port concluding that Maxfield was responsible for 144 grams of methamphetamine. Because Maxfield had two prior felo ny convictions for crimes of violence—residential burglary and aggravated battery—he was a career offender with an offense level of 34. See U.S.S.G. §§ 4B1.1, 4B1.2(a)(2) . After a No. 15 2339 3 three level reduction for acceptance of responsibility, see U.S.S.G. § 3E1.1, Maxfield’s total offense level was 31. The probation officer calculated Maxfield’s criminal history score at 22, establishing a criminal history category of VI and not ed too that as a career offender Maxfield’s criminal history would have been VI regardless. See U.S.S.G. § 4B1.1(b). This yielded a guidelines range of 188 to 235 months’ imprison ment. Maxfield filed a written objection to his designation as a career offender. Maxfield conceded that the residential bur glary, see 720 ILCS 5/19 3(a), qualified as a crime of violence based on the statutory elements of the crime. See Dawkins v. United States, 809 F.3d 953, 954–55 (7th Cir. 2016); United States v. Hoults, 240 F.3d 647, 651 (7th Cir. 2001); United States v. Coleman, 38 F.3d 856, 859 (7th Cir. 1994). But he asked the court to consider the facts of his offense and whether the ca reer offender provision resulted in an unnecessarily high of fense level. Maxfield alleged that he entered the residence with a key and therefore, as a factual matter, his was a non violent burglary. Had he not been a career offender, Maxfield’s offense level would have been 21, and the result ant guideline range would have been 100 to 125 months’ im prisonment. Maxfield also filed a sentencing memorandum and a mo tion for a downward departure. He again conceded that he technically qualified as a career offender and repeated his request that the court consider the circumstances of his resi dential burglary. He also emphasized mitigating factors— long term drug addiction, childhood abuse, family deaths— and asked the court to impose a sentence around 100 to 4 No. 15 2339 125 months. Maxfield repeated his argument at the sentenc ing hearing. The district court agreed with the probation officer that the residential burglary qualified as a predicate felony under the career offender guideline. The court recognized that Maxfield “wants to make the argument, I think, more as support for a motion for a downward departure or as related to 3553(a) factors.” The court then denied the motion for a downward depar ture, reasoning that there were no grounds for a departure under the guidelines and Maxfield’s argument was more appropriately considered under § 3553. The court considered Maxfield’s argument in this light and found that it did not support a below guideline sentence. The district court in stead concluded that a sentence at the low end of the guide lines was appropriate and sentenced Maxfield to 188 months’ imprisonment, followed by a term of 4 years’ supervised release. At the end of the hearing, the district court asked Maxfield and his counsel if all of their arguments had been adequately addressed. They responded that they had. II. ANALYSIS Maxfield argues that the district court erred in denying his request for a downward departure based on the facts surrounding his conviction for residential burglary. He ar gues that the district court did not consider varying down ward and failed to adequately address whether an element of force or violence pertaining to his 2007 residential burgla ry conviction was reasonably present or not. He concludes therefore that the denial of his motion for a downward de No. 15 2339 5 parture was unreasonable. Maxfield’s argument fails for several reasons. First, downward variances or departures are obsolete af ter United States v. Booker, 543 U.S. 220, 233–34, 245 (2005). Courts now use aggravating and mitigating factors that, in applying the factors in 18 U.S.C. § 3553(a), may lead to a sen tence below or above the guidelines range. See United States v. Brown, 732 F.3d 781, 786 (7th Cir. 2013); United States v. Lu cas, 670 F.3d 784, 791 (7th Cir. 2012). District courts can be guided by the departure provisions and apply them by way of analogy when assessing the § 3553(a) factors. Brown, 732 F.3d at 786; Lucas, 670 F.3d at 791. Therefore, Maxfield is really arguing that the district court failed to address ade quately his argument in mitigation. See United States v. Gar cia Segura, 717 F.3d 566, 568 (7th Cir. 2013); United States v. Cunningham, 429 F.3d 673, 679 (7th Cir. 2005). Second, Maxfield is incorrect that the court failed to con sider his argument. The district court explicitly considered his request for a downward departure but found no basis for a downward departure under the guidelines. For the first time on appeal, Maxfield points to a policy statement in § 4A1.3(b)(1), but § 4A1.3(b)(1) allows a downward depar ture if the defendant’s criminal history category is substantial ly overrepresented. Maxfield questions only the reasonable ness of the 10 point increase in his offense level; he does not argue that his criminal history category is overrepresented. Nor could he, because, as the district court recognized, his criminal history category was VI with or without the career offender status. The district court also explicitly and appropriately con sidered Maxfield’s argument about the facts of his residen 6 No. 15 2339 tial burglary conviction as one in mitigation under § 3553. The district court thought it was a good argument but decid ed it “goes toward a low end guideline sentence.” This was after the district court determined there were many factors that support a high end guideline sentence. A within guidelines sentence is presumptively reasonable, and Maxfield does not show that the court’s reasoning is incon sistent with the § 3553(a) factors or otherwise rebut that pre sumption. See Rita v. United States, 551 U.S. 338, 347 (2007). The district court weighed the § 3553(a) factors, including Maxfield’s family circumstances, his drug abuse, his crimi nal history, and the need for general and specific deterrence, in addition to the factual circumstances of Maxfield’s previ ous conviction. Finally, when the court asked counsel if any argument in mitigation had been overlooked, counsel said no. Having passed up the chance for elaboration, Maxfield waived the argument, and he cannot argue now that the court’s explana tion was inadequate. See United States v. Modjewski, 783 F.3d 645, 654–55 (7th Cir. 2015); United States v. Donelli, 747 F.3d 936, 940–41 (7th Cir. 2014). III. CONCLUSION Accordingly, the sentence is affirmed.
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