USA v. Sederick Maxwell

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13118
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SEDERICK MAXWELL,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:21-cr-20064-KMM-4
____________________
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2 Opinion of the Court 21-13118
Before N EWSOM, A NDERSON , and H ULL, Circuit Judges.
PER CURIAM:
After pleading guilty, defendant Sederick Maxwell appeals
his 100-month sentence for possession of a firearm as a convicted
felon, in violation of 18 U.S.C. § 922(g)(1). In 2020, Maxwell and
four others who were convicted felons appeared in a music video
holding firearms. At sentencing, the district court, over Maxwell’s
objection, applied a 4-level increase in his offense level, pursuant to
U.S.S.G. § 2K2.1(b)(1)(B), based on the eight firearms displayed in
the video. Alternatively, the district court stated that it would have
imposed the same 100-month sentence regardless of the 4-level
increase.
On appeal, Maxwell argues that the district court erred by
applying U.S.S.G. § 2K2.1(b)(1)(B) because he possessed only one
firearm and his codefendants’ firearms possession was not
attributable to him as relevant conduct. Maxwell also argues for
the first time that the government breached the plea agreement by
requesting a sentence outside the advisory guidelines range
calculated without the 4-level increase.
After careful review, we conclude any alleged error in
increasing Maxwell’s offense level under § 2K1.2(b)(1)(B) was
harmless and the government did not breach the plea agreement.
Thus, we affirm Maxwell’s conviction and sentence.
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I. BACKGROUND
A. Offense Conduct
In August 2020, law enforcement officers observed a music
video posted on Instagram accounts of several members or
associates of “the 13th Avenue/Blood Hound Gang,” including
defendant Maxwell.1 In the music video, some individuals were
holding what appeared to be assault-style firearms. Upon
reviewing the raw footage, the officers were able to identify the
individuals who were convicted felons and were shown holding
firearms. An officer also was able to identify positively the make
and model of eight firearms in the video, all of which were capable
of accepting a large capacity magazine.
At the time, Maxwell had, and was aware that he had, two
prior felony convictions. Maxwell was one of five individuals
arrested. In a post-arrest statement, Maxwell admitted to law
enforcement that the firearm he possessed in the music video was
real.
B. Indictment and Guilty Plea
A grand jury charged Maxwell and his four codefendants
with one count each of possessing a firearm as a convicted felon, in
violation of 18 U.S.C. § 922(g)(1). Maxwell was charged in Count
1 Prior to sentencing, Maxwell denied that he was an associate or member of
any gang, but he did not raise that objection at sentencing and he does not
challenge this fact on appeal.
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Four with possessing a “Romarm-Cugir/Century Arms,
VT/Model: Micro Draco.”
In May 2021, Maxwell pled guilty pursuant to a written plea
agreement. In the plea agreement, Maxwell acknowledged that
the district court would determine the advisory guidelines range
relying in part on the presentence investigation report (“PSI”) and
was not bound to impose a sentence within that range. Maxwell
also agreed that he was aware any estimate of the sentencing range
by the government was “a prediction, not a promise” and was not
binding on the government, the probation officer, or the court.
In exchange for Maxwell’s guilty plea, the government
agreed to make three recommendations at sentencing: (1) that the
district court reduce Maxwell’s offense level for acceptance of
responsibility, pursuant to U.S.S.G. § 3E1.1, with certain
conditions; (2) that Maxwell’s relevant conduct was “one firearm
which was in his possession and charged in Count Four of the
Indictment”; and (3) that Maxwell’s federal sentence run
concurrent with any sentences imposed in his state court cases.
The government reserved the right to inform the district court “of
all facts pertinent to the sentencing process” and the right,
“[s]ubject only to the express terms of any agreed-upon sentencing
recommendations contained in this agreement, . . . to make any
recommendation as to the quality and quantity of punishment.”
C. PSI and Objections
The PSI assigned Maxwell a base offense level of 26,
pursuant to U.S.S.G. § 2K2.1(a)(1), because his offense involved a
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21-13118 Opinion of the Court 5
semiautomatic firearm that could accept a large capacity magazine
and because he had committed the instant offense after sustaining
at least two felony convictions for either a crime of violence or a
controlled substance offense. The PSI added 4 levels under
§ 2K2.1(b)(1)(B) because Maxwell’s offense involved eight firearms,
for an adjusted offense level of 30.2 The PSI noted that despite the
parties’ agreement that Maxwell was responsible for only the one
firearm he possessed, § 2K2.1(b)(1)(B)’s 4-level increase applied.
The PSI then reduced Maxwell’s offense level by 3 levels under
U.S.S.G. § 3E1.1(a) and (b) for acceptance of responsibility, for a
total offense level of 27.
The PSI calculated Maxwell’s criminal history category as IV
based on a total of eight criminal history points. The PSI assigned
six of those criminal history points to his separate 2011 Florida
convictions for (1) possession of cocaine and cannabis with intent
to sell, manufacture, or deliver within 1,000 feet of a childcare
center or school, and (2) armed robbery with a firearm or deadly
weapon and attempted felony murder with a deadly weapon or
aggravated battery. The second set of charges arose out of a
robbery in which the victim was shot three times and was
hospitalized. While Maxwell’s drug crimes and his armed
robbery/attempted felony murder crimes were committed
months apart, Maxwell received eight-year concurrent sentences in
2 Under § 2K2.1(b)(1), the district court increases a defendant’s offense level by
4 levels if the offense involved between 8 and 24 firearms. See U.S.S.G.
§ 2K2.1(b)(1)(B).
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both cases. The PSI added two criminal history points, pursuant to
U.S.S.G. § 4A1.1(d), because Maxwell committed the instant
firearm offense while serving probation for these convictions.
With a total offense level of 27 and a criminal history
category of IV, Maxwell’s initial advisory guidelines range was 100
to 125 months. However, because his statutory maximum term
was ten years under 18 U.S.C. § 924(a)(2), Maxwell’s advisory
guidelines range became 100 to 120 months.
Relevant to this appeal, Maxwell objected to the 4-level
increase under § 2K2.1(b)(1)(B). Maxwell argued that he was not
responsible for eight firearms because his offense involved only the
firearm he possessed, he was not charged with conspiracy, and his
relevant conduct did not include other convicted felons’ possession
of firearms. Maxwell pointed out that there was no evidence he
knew the other individuals in the music video were convicted
felons. Maxwell represented that he had discussed the 4-level
increase with the prosecutor, who “agree[d] with the defense
objection and w[ould] not submit evidence to support the
enhancement.”
The probation officer responded to Maxwell’s objection,
stating that the district court was not bound by the parties’
stipulation to one firearm. The probation officer explained that
relevant conduct under U.S.S.G. § 1B1.3(a)(1) included all acts and
omissions taken in the scope of jointly undertaken criminal
activity, whether or not charged as a conspiracy. The probation
officer submitted that Maxwell’s conspiracy and agreement to
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21-13118 Opinion of the Court 7
appear in the music video with his codefendants, all of whom
“possessed firearms knowing they had all previously been
convicted of a felony crime,” was the basis for his relevant conduct.
D. Sentencing
At sentencing, the district court overruled Maxwell’s
objection to the 4-level increase under § 2K2.1(b)(1)(B). The
district court found that the seven other firearms were attributable
to Maxwell as relevant conduct. The district court expressed,
however, that if it was wrong on that point, it would still give
Maxwell the same sentence, stating as follows:
If I’m wrong, I’m wrong, and the Eleventh Circuit
will tell me I’m wrong as they have in the past.
And I would say that for everybody’s benefit,
for the sake of judicial resources, that I’ve looked at
the PSI carefully. I looked at the letters that you sent
that I got today, I’ve looked at the 3553(a) factors,
including his criminal history; not only relying on his
criminal history, but the nature and circumstances of
the instant offense, the need to promote respect for
the law, and to provide adequate deterrence. And so
the sentence that I would give today would be the same
sentence post-Booker as a reasonable sentence, regardless of
the calculation of the guidelines with the additional points
for multiple weapons. So just so that everybody
understands, that I’m imposing a sentence that I
believe is correct under the guidelines; but I’m also
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imposing a sentence in the alternative under
post-Booker reasonableness standard.
(Emphasis added.) The district court adopted the PSI’s advisory
guidelines calculations and found that the advisory guidelines
range was 100 to 120 months.
Maxwell requested an 80-month sentence, in the middle of
the 70- to 87-month range if the 4-level increase had not applied. In
mitigation, Maxwell stressed that he recently was a victim of a
drive-by shooting, for which he had undergone several surgeries
and still suffered medical issues.
The government requested a 100-month sentence given the
nature and circumstances of Maxwell’s firearm offense and his
history and characteristics. The government emphasized that
when Maxwell possessed the firearm in the music video, he was on
probation for very serious state offenses, including attempted
felony murder, armed robbery, and narcotics trafficking and based
on discussions with the state attorney’s office, Maxwell faced a
lengthy sentence for his probation violations. In compliance with
the plea agreement, the government requested that Maxwell’s
sentence run concurrent with Maxwell’s state court sentences.
The district court reviewed Maxwell’s criminal history as
reflected in the PSI, including his prior concurrent eight-year state
prison sentences and his pending probation violations in state
court. The government confirmed that because Maxwell’s prior
state convictions involved a shooting in which someone was
injured, he faced a mandatory minimum sentence of ten years in
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21-13118 Opinion of the Court 9
state court for a new law violation. The district court stated that it
would not run Maxwell’s federal sentence concurrently, explaining
that Maxwell should not be rewarded for committing another
offense while on probation. The district court also observed that
Maxwell’s prior state sentences of eight years were “probably why
he’s wound up in federal court” and that if those sentences had
been longer, “we might have nipped this in the bud.”
The district court stated that it had considered the
statements of the parties, the PSI which contained the advisory
guidelines range, and the 18 U.S.C. § 3553(a) factors and imposed a
sentence of 100 months, followed by three years of supervised
release. Maxwell renewed his objection to the district court’s
application of § 2K2.1(b)(1)(B)’s 4-level increase in his offense level.
II. DISCUSSION
On appeal, Maxwell argues that: (1) the district court erred
in applying the 4-level multiple-firearm increase under
§ 2K2.1(b)(1)(B), and (2) the government breached the plea
agreement when it recommended a sentence outside 80 to 87
months, the sentencing range that did not include the 4-level
increase. We address each issue in turn.
A. Multiple Firearm Increase Under § 2K2.1(b)(1)(B)
Maxwell advances the same argument he made at
sentencing—that U.S.S.G. § 2K2.1(b)(1)(B)’s 4-level increase does
not apply because his 18 U.S.C. § 922(g) offense involved the
possession of only one firearm, and no evidence was presented at
his sentencing that his codefendants’ possession of the other seven
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firearms was relevant conduct as defined in U.S.S.G.
§ 1B1.3(a)(1)(A) or (B). In particular, Maxwell contends there was
no evidence that he aided, abetted, counseled, commanded,
induced, procured, or willfully caused any of the other individuals
to possess a firearm or to be in the music video or, alternatively, no
evidence of jointly undertaken criminal activity by him and the
others in the video.
The problem for Maxwell is we need not review a purported
guidelines calculation error if the district court “has already told us
that it would impose exactly the same sentence, a sentence we
would be compelled to affirm.” United States v. Grushko, 50 F.4th 1,
18 (11th Cir. 2022) (quotation marks omitted), cert. denied, 143 S.
Ct. 2594 (2023); see also United States v. Keene, 470 F.3d 1347, 1350
(11th Cir. 2006). Under our precedent, a guidelines calculation
error is harmless when (1) the district court states that it would
have imposed the same sentence, even if it had decided the
guidelines issue in the defendant’s favor, and (2) assuming an error
occurred and the lower guidelines range applied, the sentence is
substantively reasonable. Grushko, 50 F.4th at 18; Keene, 470 F.3d
at 1349.
Here, the district court, in imposing the 100-month
sentence, stated on the record that it would have imposed the same
sentence even if the § 2K2.1(b)(1)(B) 4-level enhancement did not
apply. Further, as explained below, Maxwell’s 100-month
sentence, even if an upward variance from the 70- to 87-month
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21-13118 Opinion of the Court 11
guidelines range without the 4-level increase, is substantively
reasonable.
B. Substantive Reasonableness
More specifically, if the district court had sustained
Maxwell’s objection to the application of § 2K2.1(b)(1)(B)’s 4-level
increase, Maxwell’s total offense level would have been lowered to
23, resulting in an advisory guidelines range of 70 to 87 months.
See U.S.S.G. Ch. 5, Pt. A (Sentencing Table). The district court’s
sentence of 100 months’ imprisonment would have been a
13-month upward variance.
“We review the substantive reasonableness of a sentence for
abuse of discretion, considering the totality of the circumstances.”
United States v. Oudomsine, 57 F.4th 1262, 1266 (11th Cir. 2023). The
party challenging the sentence bears the burden of establishing that
it is unreasonable “in light of the entire record, the [18 U.S.C.]
§ 3553(a) factors, and the substantial deference afforded sentencing
courts.” United States v. Rosales-Bruno, 789 F.3d 1249, 1256 (11th
Cir. 2015). Although in choosing the sentence, the district court
must consider the § 3553(a) factors, the district court is not required
to address each factor separately. United States v. Gonzalez, 550 F.3d
1319, 1324 (11th Cir. 2008). Rather, the district court’s
acknowledgment that it has considered the defendant’s arguments
and the factors generally will suffice. Id. Moreover, the weight to
be given each § 3553(a) factor lies within the district court’s sound
discretion, and the district court may assign great weight to one
factor over others. Rosales-Bruno, 789 F.3d. at 1254.
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The district court also has wide discretion to impose an
upward variance based on the § 3553(a) factors. United States v.
Butler, 39 F.4th 1349, 1355 (11th Cir. 2022). If the district court
determines that a variance is warranted, it “must consider the
extent of the deviation and ensure that the justification is
sufficiently compelling to support the degree of the variance.” Gall
v. United States, 552 U.S. 38, 50 (2007). While we may consider the
extent of the variance, we do not require extraordinary
circumstances to justify a sentence outside the advisory guidelines
range or presume that such a sentence is unreasonable. Id. at 47;
see also United States v. Irey, 612 F.3d 1160, 1186-87 (11th Cir. 2010)
(en banc). “We will vacate a defendant’s sentence as substantively
unreasonable only if we are left with the definite and firm
conviction that the district court committed a clear error of
judgment in weighing the § 3553(a) factors by arriving at a sentence
that lies outside the range of reasonable sentences dictated by the
facts of the case.” Oudomsine, 57 F.4th at 1266 (quotation marks
omitted).
Given the alternative 70- to 87-month range, the § 3553(a)
factors, and the totality of the circumstances, Maxwell has not
shown his 100-month sentence is substantively unreasonable. In
choosing the 100-month sentence, the district court stated that it
had considered the § 3553(a) factors and the parties’ arguments,
carefully reviewed the PSI, and read the letters sent in support of
Maxwell. The district court explicitly cited as pertinent factors the
nature and circumstances of Maxwell’s offense, the need to
promote respect for the law, and the need to provide adequate
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21-13118 Opinion of the Court 13
deterrence. The district court also stated that it had considered
Maxwell’s criminal history, but clarified that it did not rely solely
on his criminal history. The district court’s comments during the
hearing indicate that it was concerned that Maxwell’s prior eight-
year state sentences had not adequately deterred him from
committing the instant federal firearm offense.
Given Maxwell’s prior criminal history, which included
serious felonies that resulted in gunshot injuries to the victim, the
fact that Maxwell was undeterred by his previous eight-year state
sentences, committed the instant offense while still on state
probation, and, as part of his current federal firearm offense,
appeared in a music video with members of a gang holding a
semiautomatic firearm fitted with a large capacity magazine, we
cannot say a decision to vary upward by 13 months was
substantively unreasonable. We note, also, that Maxwell’s
100-month sentence is below the 120-month statutory maximum,
another indication it is reasonable. See United States v. Dougherty,
754 F.3d 1353, 1362 (11th Cir. 2014).
C. Breach of Plea Agreement
Although Maxwell did not raise this issue in the district
court, on appeal he argues that the government breached the plea
agreement by requesting a 100-month sentence, above the 70- to
87-month range Maxwell says the parties contemplated.
Ordinarily, we review de novo whether the government has
breached a plea agreement. United States v. Malone, 51 F.4th 1311,
1318 (11th Cir. 2022). Where, as here, a defendant fails to object to
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the purported breach before the district court, our review is for
plain error. Id. Plain error occurs where: (1) there is an error;
(2) that is plain; (3) it affects the defendant’s substantial rights; and
(4) it seriously affects the fairness, integrity, or public reputation of
judicial proceedings. Id. at 1319.
For an error to be plain, it must be “clear or obvious.” United
States v. Sosa, 782 F.3d 630, 637 (11th Cir. 2015). “In the context of
plea agreement breaches, the Supreme Court has advised that not
all breaches will be clear or obvious, such as when the drafting of
an agreement leaves the scope of the government’s commitments
open to doubt.” Id. (quotation marks omitted, alteration adopted).
“[T]he government breaches a plea agreement when it fails
to perform the promises on which the plea was based.” Malone, 51
F.4th at 1319 (quotation marks omitted). “In determining whether
the government has breached a plea agreement, we must first
determine the scope of the government’s promises.” Id. (quotation
marks omitted, alteration adopted). We look to the plea
agreement’s plain language, and the “plea agreement’s
unambiguous meaning controls.” Id. at 1319-21, see also Sosa, 782
F.3d at 637. “[W]e ask whether the government’s conduct
conflicted with the defendant’s reasonable understanding of the
government’s promises when he entered his guilty plea.” Malone,
51 F.4th at 1319. Our inquiry applies an objective standard, and we
do not read “the agreement in a hyper-technical or rigidly literal
manner.” United States v. Hunter, 835 F.3d 1320, 1324 (11th Cir.
2016) (quotation marks omitted).
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Here, in exchange for Maxwell’s agreement to plead guilty,
the government promised to recommend that Maxwell’s relevant
conduct was “the one firearm which was in his possession and
charged in Count Four of the Indictment,” that Maxwell receive an
acceptance-of-responsibility reduction, and that his sentence run
concurrent to his state sentences. None of these promises requires
the government to recommend a particular sentence, much less
recommend a sentence within a particular guidelines range.
Maxwell essentially contends that implicit within the
government’s promise to recommend only one firearm as relevant
conduct, was another promise not to ask for a sentence outside the
advisory guidelines range that would have been calculated using
only one firearm. But this understanding of the government’s
promise is not supported by the plea agreement’s plain language
and is not objectively reasonable.
In the plea agreement, the government explicitly reserved
the right to recommend any “quality or quantity of punishment”
unless it expressly agreed to a sentencing recommendation set
forth in the agreement. As noted, there was no explicit promise in
the plea agreement to recommend a particular sentence or a
particular guidelines range. Further, Maxwell acknowledged in the
plea agreement that (1) the district court would determine the
advisory guidelines range, (2) any estimate by the government of
the probable sentencing range was only a prediction and not a
promise and was not binding on the government or the district
court; and (3) that any recommendation made by the government
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was not binding on the district court. In light of these
acknowledgments and the government’s express promises in the
plea agreement, there is no merit to Maxwell’s claims that an
advisory guidelines range of 70 to 87 months “was agreed to in the
plea agreement” or that Maxwell reasonably understood that the
government would recommend a sentence within that range.
The record shows the government complied with all three
promises at the sentencing hearing, including its promise about
relevant conduct. As to the relevant conduct promise in particular,
the government agreed with Maxwell that his relevant conduct
was the single firearm he was charged with possessing and declined
to present evidence supporting the probation officer’s position in
the PSI that Maxwell’s relevant conduct included the other seven
firearms seen in the music video. The government did not plainly
breach the plea agreement when it sought a 100-month sentence,
at the low end of the advisory guidelines range, as determined by
the district court.
III. CONCLUSION
For these reasons, we affirm Maxwell’s firearm conviction
and 100-month sentence.
AFFIRMED.
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