United States v. Bryant Maybell ( 2021 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 8, 2021 *
Decided November 9, 2021
Before
ILANA DIAMOND ROVNER, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
No. 20-3257
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Southern District of
Illinois.
v. No. 3:08-CR-30235-NJR-5
BRYANT K. MAYBELL, Nancy J. Rosenstengel,
Defendant-Appellant. Chief Judge.
ORDER
Bryant Maybell, an Illinois inmate, appeals the district court’s judgment on his
motion for a reduced sentence under the First Step Act. He conceded in the district
court that its finding of the drug amount involved in his crime validly determined his
*
We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 20-3257 Page 2
guidelines range, but he now abandons that position. Instead, he argues that the district
court had to limit the penalty range to the drug amount found by the jury. Because
Maybell waived this argument by accepting the higher penalty range, and his new
argument does not furnish grounds for relief in any case, we affirm.
Maybell was convicted by a jury in 2011 of conspiracy to distribute crack cocaine,
see 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(iii), 846, and pleaded guilty to possession and
distribution of crack cocaine, see id. §§ 841(a)(1), (b)(1)(B), (b)(1)(C). The jury found that
he had conspired to distribute 50 grams or more of crack cocaine. The presentence
investigation report, which the district court adopted, determined that his relevant
conduct involved nearly 2,900 grams of crack cocaine. The jury’s drug quantity finding
required a prison term of life imprisonment. See id. §§ 841(b)(1)(A), 846, and 851.
Maybell was sentenced to life in prison on the conspiracy count and 240 months in
prison on the possession and distribution counts.
In 2019, Maybell moved for a reduced sentence under Section 404(b) of the First
Step Act, and he received partial relief. Pub. L. No. 115-391, 132 Stat. 5194. This Act
applies the provisions of the Fair Sentencing Act to defendants who committed covered
offenses before August 2010. The parties agreed that, under the Fair Sentencing Act, the
statutory penalty for the conspiracy count ranged from 10 years to life, with a
guidelines range of 292 to 365 months; the statutory maximum for the remaining counts
was 30 years, with a guidelines range of 168 to 210 months. The district court ruled that
Maybell was eligible for a sentence reduction on the conspiracy count. But it concluded
that his extensive criminal history and misconduct in prison justified a reduction to 360
months’ imprisonment, which fell within the agreed-upon guidelines range.
On appeal, Maybell disclaims the position that he took in the district court. He
now argues that his relevant conduct for sentencing purposes must be limited to the “50
grams or more” amount of crack cocaine found by the jury, which he believes restricts
the allowable range for the conspiracy count to 110 to 137 months in prison. In his view,
under Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), a sentence based on the 2,900-
gram amount that the court adopted from the presentence investigation report violates
his rights under the Sixth Amendment because a jury did not make that finding.
Maybell waived his appellate contention that a lower statutory range is required
on the conspiracy count. “Waiver occurs when a party intentionally relinquishes a
known right” and precludes appellate review. United States v. Flores, 929 F.3d 443, 447
(7th Cir. 2019) (citing United States v. Olano, 507 U.S. 725, 733 (1993)). In the district
court, Maybell explicitly agreed to an amended statutory range of 5 to 40 years and a
guideline range of 292 to 365 months. He is now bound to that position on appeal. See
No. 20-3257 Page 3
United States v. Canfield, 2 F.4th 622, 629 (7th Cir. 2021) (defendant’s “affirmative
advancement” in district court of supervised release terms “evidence[d] intentionality”
and constituted waiver of objections to them on appeal).
But even if Maybell merely forfeited, rather than waived, his new argument that
his penalty range is limited by the jury’s finding, for two reasons the district court did
not plainly err by accepting the PSR quantity, as it did at the original sentencing.
See Flores, 929 F.3d at 447 (forfeited issues are reviewed for plain error). First, Maybell
may not raise, in a motion to reduce his sentence, an argument that he could have
raised on direct appeal, such as his argument under Apprendi. See United States v.
Jackson, 573 F.3d 398, 400 (7th Cir. 2009). (Maybell filed a notice of appeal to his initial
sentence in 2011, but this court dismissed his appeal under Anders v. California, 386 U.S.
738 (1967). See United States v. Maybell, 482 F. App’x 171 (7th Cir. 2012).)
Second, in any case, the district court did not violate the rule of Apprendi.
Apprendi requires any fact that increases the penalty for a crime beyond the prescribed
statutory maximum to be submitted to a jury and proved beyond a reasonable doubt.
Apprendi, 530 U.S. at 490. Here, based on the 50 grams of crack cocaine that the jury
found, under the Fair Sentencing Act the statutory maximum for Maybell’s sentence
was already set at life. Pub. L. No. 111–220, 124 Stat. 2372. The larger drug amount
reflected in the PSR thus did not affect the statutory maximum sentence. This court held
in United States v. Ashqar that a sentence based on judicially-found facts does not violate
the Sixth Amendment so long as it does not exceed the relevant statutory maximum.
582 F.3d 819, 824–25 (7th Cir. 2009). Where, as here, judicially-found facts merely
increase the guidelines range, the Sixth Amendment is not offended because “[]the
judge could disregard the Guidelines and apply the same sentence . . . in the absence of
the special facts . . . [s]o long as the Guidelines are advisory[]”. Id. Maybell concedes in
his brief that circuit cases like Ashqar defeat his claim. He insists, nonetheless, that they
are “inherently flawed[].” But he presents only arguments that this court already
considered and rejected in deciding that case. Because the judge did not sentence
Maybell above the relevant statutory maximum, it committed no constitutional error.
AFFIRMED