United States v. Maurice Maxwell, 2016 U.S. App. LEXIS 9474

Maxwell was convicted (Dec. 2011) of possession with intent to distribute ≥5 grams of cocaine base and originally sentenced after application of the career-offender Guideline (3 prior felonies) producing a high Guidelines range; sentence reduced below that range.
On initial appeal this court affirmed the conviction but remanded for resentencing in light of Dorsey and the Fair Sentencing Act; district court resentenced Maxwell to 120 months (July 2014).
The sentence was vacated and remanded again to adjust supervised-release conditions (joint motion), and a second resentencing occurred in Aug. 2015.
At the second resentencing the government conceded that one prior (fleeing from an officer) no longer qualified as a crime of violence under Johnson; Maxwell then challenged whether his Minnesota simple-robbery conviction counted as a crime of violence for the career-offender enhancement.
The district court stated it had not relied on the career-offender range in imposing the 120-month sentence and reaffirmed the 120-month term; the court of appeals affirmed.

Issue	Maxwell's Argument	Government's Argument	Held
Whether Minnesota simple robbery is a "crime of violence" under U.S.S.G. § 4B1.2(a)(1) for career-offender purposes	The Minnesota statute is broader than § 4B1.2(a)(1): it uses the word "force" (not "physical force") and punishes force against "any person," so it could reach conduct not involving physical force against another person	Minnesota law construes the statute to require force capable of causing physical pain or injury and to cover threatening harm to the victim or a third person, so the statute fits § 4B1.2(a)(1)	Affirmed: Minnesota simple robbery qualifies as a crime of violence under the categorical approach; the statute requires force equivalent to "physical force" and targets threats to victims or third persons, not self-directed threats
Whether the district court erred in applying the career-offender enhancement to calculate the Guidelines range	Maxwell: career-offender enhancement is inapplicable if simple robbery is not a qualifying crime of violence	Government: simple robbery qualifies, so enhancement proper; in any event district court did not rely on the Guidelines range in selecting the sentence	Even if the enhancement were erroneous, affirmance would stand because the district court expressly said it did not rely on the Guidelines range in imposing the sentence

United States v. Womack, 610 F.3d 427 (7th Cir.) (standard of review: de novo for predicate-conviction questions)
United States v. Woods, 576 F.3d 400 (7th Cir.) (applies categorical approach to prior convictions)
United States v. Curtis, 645 F.3d 937 (7th Cir.) (applies Johnson definition of "physical force" in § 4B1.2(a)(1))
Gonzales v. Duenas-Alvarez, 549 U.S. 183 (Sup. Ct.) (requires realistic probability, not mere imagination, to show a statute covers conduct outside a generic definition)
Johnson v. United States, 559 U.S. 133 (Sup. Ct.) ("physical force" means force capable of causing physical pain or injury)
United States v. Abbas, 560 F.3d 660 (7th Cir.) (district-court statements that a sentence was chosen independent of the Guidelines can negate prejudice from a Guidelines error)