United States v. Bryant Maybell , 482 F. App'x 171 ( 2012 )

NONPRECEDENTIAL DISPOSITION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 May 30, 2012
Decided May 31, 2012
Before
RICHARD D. CUDAHY, Circuit Judge
JOEL M. FLAUM, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 11-2852
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Southern District of Illinois.
v. No. 3:08CR30235-005-GPM
BRYANT K. MAYBELL, G. Patrick Murphy,
Defendant-Appellant. Judge.
ORDER
Bryant Maybell was arrested for his involvement in an extensive scheme to
distribute crack cocaine by a group known as the JackMob, which operated in southern
Illinois from 2005 until early 2009. Maybell was charged, along with seven others, with
conspiracy to possess crack with intent to distribute. 21 U.S.C. §§ 846, 841(a)(1) (2006). He
also was charged with possessing and distributing crack. Id. § 841(a)(1). The government
filed a recidivism enhancement, which raised the possible prison terms on each count.
See id. §§ 841(b)(1)(A)(iii), (b)(1)(B)(iii), (b)(1)(C), 851. Maybell pleaded guilty to possession
and distribution but elected to proceed to trial on the conspiracy count. Before that trial the
district court calculated a guidelines imprisonment range of 210 to 262 months on the
substantive counts and imposed concurrent terms of 240 months. A jury found Maybell
guilty of conspiracy, and the district court imposed a mandatory life sentence based on the
No. 11-2852 Page 2
amount of crack and Maybell’s prior convictions. See id. § 841(b)(1)(A)(iii). Maybell filed a
notice of appeal, but his newly appointed lawyer has concluded that the appeal is frivolous
and seeks to withdraw under Anders v. California, 386 U.S. 738 (1967). Maybell has not
responded to counsel’s submission. See C IR. R. 51(b). We confine our review to the potential
issues identified in counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d 968,
973–74 (7th Cir. 2002). Maybell does not want his guilty pleas vacated, so counsel properly
omits any discussion about the adequacy of the plea colloquy or the voluntariness of the
pleas. See United States v. Knox, 287 F.3d 667, 670–72 (7th Cir. 2002).
Counsel first considers whether Maybell could argue that the trial evidence does not
support his conspiracy conviction. To convict Maybell for the crack conspiracy under 21
U.S.C. § 846, the government had to prove that there was an agreement to possess and
distribute cocaine and that Maybell joined the agreement knowingly and intentionally.
United States v. Walker, 673 F.3d 649, 654–55 (7th Cir. 2012); United States v. Johnson, 592 F.3d
749, 754 (7th Cir. 2010).
We agree with counsel that a sufficiency challenge would be frivolous. Five
members of the JackMob testified that they and Maybell collaborated for years selling crack
out of a house in Carbondale and in the surrounding neighborhood. They took turns
making sales, and sometimes they pooled money to buy crack or worked together
supplying crack to customers. Six of the JackMob’s customers testified that they purchased
crack directly from Maybell at the JackMob house. Another five people who lived at or near
the JackMob house testified that they had seen Maybell selling crack outside. Maybell
elected not to testify and rested after introducing documents from one of his state
convictions to show that he was in prison during part of the time he allegedly was
participating in the conspiracy. The jury was free to credit these witnesses, United States v.
Anderson, 580 F.3d 639, 646 (7th Cir. 2009); United States v. Kelly, 519 F.3d 355, 362 (7th Cir.
2008), and Maybell’s temporary absence while imprisoned does not mean that he should
not be guilty of participating in the long-running conspiracy, see United States v. Turner, 604
F.3d 381, 388 (7th Cir. 2010); United States v. Julian, 427 F.3d 471, 483 (7th Cir. 2005).
Counsel next considers whether Maybell could challenge the calculation of his
guidelines imprisonment range for possession and distribution, though she first correctly
notes that any error in the guidelines calculation would be harmless in light of Maybell’s
life sentence later imposed for the conspiracy. The possession and distribution counts
together accounted for 8 grams of crack, but the district court calculated a base offense level
of 34 after attributing to Maybell between 500 and 1,500 grams. See U.S.S.G. § 2D1.1(c)(3)
(2010). The court added two levels for possessing a dangerous weapon, id. § 2D1.1(b)(1),
and subtracted three for acceptance of responsibility, id. § 3E1.1, yielding a total offense
No. 11-2852 Page 3
level of 33. The government must prove drug quantity by a preponderance of the evidence
in applying the guidelines, United States v. Artley, 489 F.3d 813, 821 (7th Cir. 2007), and a
sentencing court may assess relevant conduct by considering any evidence that bears
“sufficient indicia of reliability,” U.S.S.G. § 6A1.3(a); see United States v. Sainz-Preciado, 566
F.3d 708, 713–14 (7th Cir. 2009); United States v. Hankton, 432 F.3d 779, 789–90 (7th Cir. 2005).
The court concluded at sentencing that, even accepting the witnesses’
most-conservative estimates, Maybell’s relevant conduct would be well over 500 grams of
crack. A coconspirator testified at sentencing that Maybell received ½ ounce of crack every
week for a two-year period spanning 2006 through 2008. Even discounting 4 months
during that period when Maybell was in prison, he would still be responsible for over 1,200
grams of crack. And one of his customers testified that Maybell cooked 2 ounces of crack in
her apartment on at least 20 different occasions during the same time period, and that
conduct verifies Maybell’s responsibility for over 1,100 grams. Similarly, for the increase
under § 2D1.1(b)(1) to apply, the government had to prove by a preponderance of the
evidence that Maybell possessed a weapon during the commission of the offense.
See U.S.S.G. § 2D1.1(b)(1); United States v. McCauley, 659 F.3d 645, 652 (7th Cir. 2011). At the
sentencing hearing two people—a coconspirator and another drug dealer—testified that
Maybell carried a gun while selling crack. We agree with counsel that it would be frivolous
to argue that the adjustments were unwarranted.
Counsel next considers whether Maybell could challenge the mandatory life
sentence imposed for the conspiracy. Maybell initially had objected to the recidivism
enhancement under § 851 for prior drug convictions on the ground that the conspiracy
crime was not committed until after his 2005 and 2008 convictions alleged in the
enhancement information. At sentencing, however, Maybell abandoned this objection, and
thus it is waived. See United States v. Knox, 624 F.3d 865, 875 (7th Cir. 2010); United States v.
Kincaid, 571 F.3d 648, 654 (7th Cir. 2009). And had it not been waived, the contention still
would fail. For Maybell to be subject to mandatory life, the district court needed to find that
he continued his involvement in the charged conspiracy after his second Illinois conviction
for a felony drug offense became final in February 2008. See United States v. Garcia, 32 F.3d
1017, 1019–20 (7th Cir. 1994); United States v. Moody, 564 F.3d 754, 759 (5th Cir. 2009); Hagins
v. United States, 267 F.3d 1202, 1208 (11th Cir. 2001); see also United States v. Alden, 527 F.3d
653, 663–64 (7th Cir. 2008). Five witnesses testified at trial that Maybell continued to sell
crack after he received time served plus probation and was released from state custody in
2008. At sentencing the district court noted that “after trial it was abundantly clear” that
Maybell had continued his involvement in the conspiracy. Counsel is correct that an appeal
on this basis would be frivolous.
No. 11-2852 Page 4
Counsel last considers whether Maybell’s appeal could be affected by the Supreme
Court’s recent decision to consider the retroactivity of the Fair Sentencing Act of 2010, Pub.
L. No. 111-220, § 2(a)(2), 124 Stat. 2372. See United States v. Dorsey, 635 F.3d 336, 340 (7th Cir.
2011), cert. granted, 132 S. Ct. 759 (2011). If the Fair Sentencing Act had applied to Maybell,
who was sentenced after its enactment in August 2010, he still would have faced a
mandatory life sentence for the conspiracy. The jury’s finding that he was responsible for at
least 50 grams of crack would not by itself compel a life sentence (the FSA amended
§ 841(b)(1)(B)(iii) to require 280 grams or more of crack to trigger a mandatory life sentence
but the jury was not asked to decide whether Maybell had been involved with that
quantity.) Compare 21 U.S.C. § 841(b)(1)(A)(iii) (2006), with 21 U.S.C. § 841(b)(1)(B)(iii) (2006
& Supp. IV 2010). But, as counsel observes, the district court found that the conspiracy
involved well over 280 grams of crack, which even under the FSA would have required a
life sentence. 21 U.S.C. § 841(b)(1)(A)(iii) (2006 & Supp. IV 2010). The court could make this
determination based on a preponderance of the evidence, without a jury, because the rule
of Apprendi v. New Jersey, 530 U.S. 466 (2000), does not apply to statutory minimum
penalties. See Harris v. United States, 536 U.S. 545, 566–67 (2002); United States v. Krieger, 628
F.3d 857, 863–64 (7th Cir. 2010); United States v. Washington, 558 F.3d 716, 719–20 (2009).
Counsel does not discuss whether the Fair Sentencing Act could change Maybell’s
sentences for possession and distribution, though his life term for the conspiracy makes the
question academic. Maybell faced a statutory minimum of 10 years for distributing over 5
grams of crack, 21 U.S.C. § 841(b)(1)(B)(iii) (2006), and a maximum of 30 years for
possession, id. § 841(b)(1)(C). Under the Fair Sentencing Act, Maybell would not have faced
a mandatory minimum penalty on either count. See id. § 841(b)(1)(B)(iii), (b)(1)(C) (2006 &
Supp. IV 2010). But the district court did not consider the statutory penalties when it
imposed Maybell’s sentence. After mentioning the statutory penalties briefly at the
beginning of the sentencing hearing, the court did not return to them. Instead, the court
imposed a sentence with the guidelines range as its starting point: “Now to be sure,
whatever sentence the court would give you—and I think a guidelines sentence is
appropriate here. I see no reason to go up or to go down. The difference between 210 and
262 months is less than four years. . . . [T]he defendant is sentenced to the Bureau of Prisons
for a term of 240 months. That’s 20 years. That is exactly the sentence I would have given
him irrespective of the guidelines.” Because any change to the statutory penalties would
not affect the sentence imposed, United States v. White, 519 F.3d 342, 349 (7th Cir. 2008);
Julian, 427 F.3d at 491, and the amendments to the guidelines that implemented the FSA do
not affect Maybell’s base offense level, see U.S.S.G. app. C, amends. 748, 750, 759, the
argument would be frivolous.
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.