United States of America v. Cedric Maxwell

United States Court of Appeals
For the Eighth Circuit
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No. 23-2992
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United States of America
Plaintiff - Appellee
v.
Cedric Maxwell
Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Arkansas - Central
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Submitted: April 12, 2024
Filed: June 6, 2024
[Unpublished]
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Before BENTON, GRASZ, and STRAS, Circuit Judges.
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PER CURIAM.
Cedric Maxwell pled guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). The district court1 varied upward, sentencing
him to 36 months in prison (range was 15 to 21 months) and three years of supervised
1 The Honorable James M. Moody, United States District Court Judge for the
Eastern District of Arkansas.

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release. He appeals, challenging the substantive reasonableness of the sentence.
Having jurisdiction under 28 U.S.C. § 1291, this court affirms.
This court reviews the substantive reasonableness of a sentence for abuse of
discretion. United States v. Thigpen, 848 F.3d 841, 847 (8th Cir. 2017). An abuse
of discretion occurs when the court “fails to consider a relevant factor that should
have received significant weight,” “gives significant weight to an improper or
irrelevant factor,” or makes a “clear error of judgment” in weighing appropriate
factors. United States v. Funke, 846 F.3d 998, 1000 (8th Cir. 2017). “[I]t will be
the unusual case when we reverse a district court sentence—whether within, above,
or below the applicable Guidelines range—as substantively unreasonable.” United
States v. Feemster, 572 F.3d 455, 464 (8th Cir. 2009) (en banc). “The district court
may vary upward from the guideline range if the extent of the deviation is supported
by the 18 U.S.C. § 3553(a) factors.” United States v. Martinez, 821 F.3d 984, 989
(8th Cir. 2016).
Maxwell claims his limited criminal history did not justify an upward variance
and the district court should not have considered a pending Missouri murder charge.
There is no indication the court considered the pending murder charge. On his
criminal history, the court said:
After I consider Mr. Maxwell’s presentence report in its entirety and
the letters that were presented to me, the comments of Mr. Brown and
the comments of Ms. O’Leary and the factors found in 18 U.S.C.
Section 3553, it’s the judgment of the Court, Mr. Maxwell, that you be
committed to the custody of the Bureau of Prisons to be imprisoned for
a term of 36 months. I realize that this is an upward variance, but when
I take into consideration that you were given four years of probation for
what amounted to a drive-by shooting where an innocent passenger
vehicle was struck and that it wasn’t until further conduct when you
were revoked on that sentence did you actually even serve any time.
That four-month probationary sentence which I’m a little amazed that
you got in the first place was insufficient to deter your possession of a
firearm. I think you’re a danger to society because of that.

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This upward variance is imposed based on your criminal history as
mentioned and discussed here today in paragraph 25 of your PSR. This
sentence may serve as a deterrent for future criminal behavior while
promoting community safety. It’s sufficient but no greater than
necessary to reflect the seriousness of the offense, promote respect for
the law, and address community safety and address your needs.
The court did not abuse its discretion in varying upward. See Ferguson v. United
States, 623 F.3d 627, 632 (8th Cir. 2010) (affirming upward variance from 6-12
months to 60 months based on nature and circumstances of offense, defendant’s
history and characteristics, and need for general deterrence).
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The judgment is affirmed.
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