United States of America v. David Maiden

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3747
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DAVID MAIDEN,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:08-cr-00528-1—Samuel Der-Yeghiayan, Judge.
ARGUED FEBRUARY 23, 2010—DECIDED MAY 17, 2010
Before BAUER, POSNER and SYKES, Circuit Judges.
BAUER, Circuit Judge. David Maiden pleaded guilty to
bank robbery, 18 U.S.C. §§ 2113(a), (b), and carrying
a firearm during a crime of violence, 18 U.S.C.
§ 924(c)(1)(A), pursuant to a written plea agreement.
The district court sentenced him to 141 months’
imprisonment, including a two-level bodily injury
enhancement for injuries Maiden inflicted on two bank
tellers when he sprayed them with pepper spray. Maiden

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2 No. 09-3747
appeals the application of the enhancement to his sentence.
Finding his appeal without merit, we affirm.
I. BACKGROUND
On June 5, 2008, David Maiden robbed a TCF Bank on
the northwest side of Chicago. During the robbery, he
carried a .45 caliber Uzi and wore a bulletproof vest.
When two young tellers were too slow retrieving money
from the bank’s vault, Maiden sprayed them in the face
with pepper spray. He then made off with approximately
$6,000.
Maiden pleaded guilty to aggravated bank robbery and
carrying a gun during a crime of violence. In his written
plea agreement, he also admitted spraying the tellers with
pepper spray. The pre-sentence investigation report
(“PSR”) recommended a two-point enhancement to
Maiden’s sentence under § 2B3.1(b)(3)(A) of the U.S.
Sentencing Guidelines, based on the injury caused by the
pepper spray. Specifically, the PSR included a statement
from one of the tellers that following the incident, she felt
a burning sensation whenever she attempted to wear
contact lenses and has therefore been unable to wear them.
Maiden objected to the application of the bodily injury
enhancement on the basis that pepper spray is not a
dangerous weapon under Illinois law, and so the trial
judge should have viewed more suspiciously the teller’s
“uncorroborated” statement in the PSR that she was
injured. He essentially argued that when the government
cannot establish whether bodily injury was inflicted by

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No. 09-3747 3
The term “Mace” is a trade name for a particular brand of 1
pepper spray. However, mace also refers to a more potent
form of tear gas known as alpha-chloroacetophenone, or CN
gas, typically available only to law enforcement or the military.
See U.S. Centers For Disease Control and Prevention,
National Institute for Occupational Safety and Health, Pocket
Guide To Chemical Hazards 61 (2007). But the term is
most commonly used as a generic word for pepper spray. See,
e.g., United States v. Robinson, 20 F.3d 270, 278 (7th Cir. 1994);
People v. Runge, 805 N.E.2d 632, 637-38 (Ill. App. Ct.
2004)(describing pepper spray as “mace”). See also 235 Ill.
Comp. Stat. 5/6-32(a) (describing both mace and pepper
spray as “toxic air-released compound[s]”). Though Maiden
attempts to draw a distinction between pepper spray and mace,
any difference between the two is not relevant to the
determination of whether a bodily injury enhancement applies
under § 2B3.1(b)(3)(A).
Pepper spray is a commonly used self defense spray. Its 2
active ingredient is oleoresin capsicum, an extract taken from
hot pepper plants. Anita Miller, Pepper Spray: Officers Get
Up Close and Painful, San Marcos Daily Record, Apr. 7, 2010.
It is available in a variety of delivery systems designed to be
carried on one’s person, including lipsticks, pens, and even a
“pepper pager.” See, e.g., www.pepperspray.com (last visited
Apr. 22, 2010).
mace or pepper spray, the court must examine hospital1 2
and other records to determine whether the offender
caused a bodily injury. The district court rejected his
arguments. It held that the teller’s testimony was
sufficiently reliable to support application of the bodily
injury enhancement, regardless of what type of spray was

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4 No. 09-3747
used, and sentenced Maiden to 141 months’ imprisonment.
He timely appealed.
II. DISCUSSION
Maiden challenges the district court’s application of a
two-level enhancement to his sentence following his
conviction for bank robbery, a determination we review
for clear error. United States v. Idowu, 520 F.3d 790, 793 (7th
Cir. 2008).
Section 2B3.1(b)(3)(A) directs a sentencing judge to
increase an offender’s base offense level by two points “if
any victim sustained bodily injury.” The Guidelines
broadly define bodily injury as “any significant injury,”
including “injury that is painful and obvious, or is of a type
for which medical attention would ordinarily be sought.”
U.S. Sentencing Guidelines Manual §1B1.1 cmt. n. (1)(A)
(2009).
In determining a sentence under the Guidelines, the
stringent rules governing admission of evidence in a
criminal trial are not applicable. United States v. Johnson,
489 F.3d 794, 796 (7th Cir. 2007). While a defendant has
a due process right to have his sentence based upon
accurate information, United States v. Hankton, 432 F.3d 779,
790 (7th Cir. 2005) (quoting United States v. Salinas, 62
F.3d 855, 859 (7th Cir. 1995)), hearsay statements are “often
an integral part of the sentencing process.” Id. In fact, there
are few limitations on the types of evidence a sentencing
judge may consider, as long as it has “sufficient indicia of
reliability to support its probable accuracy.” Id. (quoting
United States v. Robinson, 164 F.3d 1068, 1070 (7th Cir. 1999).

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No. 09-3747 5
720 Ill Comp. Stat. 5/24-1 (2008), which Maiden says 3
classifies mace “as a dangerous weapon,” makes no such
classification. In fact, the statute explicitly permits individuals
to carry an “object containing a non lethal noxious liquid
gas or substance designed solely for personal defense.” Id. at
5/24-1(a)(3). The Illinois Appellate Court in People v. Runge,
805 N.E.2d 632, 637-38 (Ill. App. Ct. 2004), a case Maiden says
(continued...)
The district judge credited the teller’s statement in the
PSR and applied the two-point enhancement. Once the
court relies on information in a PSR that it determines
has sufficient indicia of reliability, it is the defendant’s
burden to create “real doubt” by showing why the
statement is inaccurate or unreliable. United States v. Heckel,
570 F.3d 791, 795-96 (7th Cir. 2009). The district judge
found the victim’s report sufficiently reliable to support
its probable accuracy. And Maiden has not created any
doubt about the teller’s statement because, other than
generically criticizing it as hearsay, he offers no evidence
that would lead us to question the teller’s reliability. See
United States v. Taylor, 135 F.3d 478, 481-82 (7th Cir. 1998)
(hearsay acceptable at sentencing where judge found
statement reliable).
Maiden additionally argues that the teller’s statement
is insufficient evidence upon which to base the bodily
injury enhancement because pepper spray is not a
dangerous weapon and is virtually incapable of inflicting
a “significant injury” as contemplated by the Guidelines.
He seems to say that if mace is used, a judge can presume
bodily injury because mace is considered a dangerous
weapon under Illinois law. On the other hand, when3

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6 No. 09-3747
(...continued) 3
“explains the difference” between mace and pepper spray,
actually used the terms interchangeably to refer to common
pepper spray. Id.
pepper spray is used, Maiden suggests that the
government must produce additional evidence to prove
the injury because pepper spray is not a dangerous
weapon. In light of the government’s failure to
demonstrate that he used a dangerous weapon, Maiden
contends that the teller’s statement is insufficient.
To the extent Maiden claims that the sentencing judge
automatically applied the enhancement in reliance on
Taylor, 135 F.3d at 481-82, and United States v. Robinson,
20 F.3d 270, 278 (7th Cir. 1994), his argument is without
merit. Though in both cases we affirmed application of a
two-point bodily injury enhancement where the defendant
sprayed victims with mace or pepper spray, in neither did
we hold that bodily injury could be presumed simply
because mace or pepper spray was used. In both cases,
application of the bodily injury enhancement turned on a
statement from the victim who suffered injury, or a person
who witnessed the injury first-hand. See Taylor, 135 F.3d at
481-82 (supervisor’s first-hand account of tellers’ injuries
was sufficiently reliable so that sentencing judge “could
properly make the factual finding” regarding bodily
injury); Robinson, 20 F.3d at 278 (teller’s statement that
she suffered injuries was sufficient evidence to apply
enhancement). See also U.S. Sentencing Guidelines Manual
§ 2B3.1(b)(3)(A) (enhancement applicable if “victim
sustained bodily injury”); Id. at § 1B1.1 cmt. n. (1)(A)

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No. 09-3747 7
(bodily injury is “any significant injury,” including those
that are “painful and obvious”).
In this case, the judge properly followed the Guidelines,
basing his finding of bodily injury on the “burning
sensation” the teller experienced in her eyes, and that she
was unable to wear contact lenses. He found her statement,
as relayed by the PSR, sufficiently reliable. Thus, the
sentencing judge appropriately applied the bodily injury
enhancement because he determined that the teller had a
painful and obvious injury, not simply because Maiden
used pepper spray.
III. CONCLUSION
There was sufficient evidence to determine that Maiden
inflicted bodily injury during the commission of his
crime and the court properly applied the two-point
enhancement under § 2B3.1(b)(3)(A). We AFFIRM.
5-17-10

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