United States of America v. Travis Cole Maxfield

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15‐2339
U NITED STATES OF A MERICA ,
Plaintiff‐Appellee,
v.
T RAVIS C OLE 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.
____________________
A RGUED J ANUARY 27, 2016 — D ECIDED FEBRUARY 11, 2016
____________________
Before P OSNER , KANNE , and HAMILTON, Circuit Judges.
P ER C URIAM. 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‐

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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

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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

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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. A NALYSIS
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‐

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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‐

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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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