UNITED STATES of America, Plaintiff-Appellee, v. Travis Cole MAXFIELD, Defendant-Appellant.
No. 15-2339.
United States Court of Appeals, Seventh Circuit.
Argued Jan. 27, 2016. Decided Feb. 11, 2016.
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case to the agency for further proceedings consistent with this opinion. On remand, the ALJ should obtain medical testimony on the impact of Stage‘s need for a hip replacement on her ability to stand for hours at a time, and should give reasoned assessments of her credibility, her residual functional capacity, and the proper weight to accord her treating physician‘s opinion.
Kit R. Morrissey, Attorney, Office of the United States Attorney, Fairview Heights, IL, for Plaintiff-Appellee.
Neal A. Connors, Attorney, Neal Connors Law Firm, P.C., Belleville, IL, for Plaintiff-Appellee.
Before POSNER, KANNE, and HAMILTON, Circuit Judges.
PER CURIAM.
I. BACKGROUND
Maxfield manufactured methamphetamine for personal use and sale, using boxes of over-the-counter cold and allergy medication containing pseudoephedrine that he bought or paid others to buy for him. He was searched by law enforcement agents who discovered more than 100 pseudoephedrine pills and about half a gram of methamphetamine; 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
A probation officer filed a presentence investigation report concluding that Maxfield was responsible for 144 grams of methamphetamine. Because Maxfield had two prior felony 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.
Maxfield filed a written objection to his designation as a career offender. Maxfield conceded that the residential burglary, see
Maxfield also filed a sentencing memorandum and a motion 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 residential 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 125 months. Maxfield repeated his argument at the sentencing 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 departure, reasoning that there were no grounds for a departure under the guidelines and Maxfield‘s argument was more appropriately considered under
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 argues that the district court did not consider varying downward and failed to adequately address whether an element of force or violence pertaining to his 2007 residential burglary conviction was reasonably present or not. He concludes therefore that the denial of his motion for a downward departure was unreasonable. Maxfield‘s argument fails for several reasons.
First, downward variances or departures are obsolete after United States v. Booker, 543 U.S. 220, 233-34, 245, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Courts now use aggravating and mitigating factors that, in applying the factors in
Second, Maxfield is incorrect that the court failed to consider 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 departure if the defendant‘s criminal history category is substantially over-represented. Maxfield questions only the reasonableness of the 10 point increase in his offense level; he does not argue that his criminal history category is over-represented. 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 considered Maxfield‘s argument about the facts of his residential burglary conviction as one in mitigation under
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 explanation 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.