In the

United States Court of Appeals

For the Seventh Circuit

No. 12-1809

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MAURICE MAXWELL,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 11-CR-25-WMC-1—William M. Conley, Chief Judge.

ARGUED APRIL 19, 2013—DECIDED JULY 19, 2013

Before EASTERBROOK, Chief Judge, and POSNER and

WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge. Maurice Maxwell was

charged with possession with intent to distribute crack

cocaine. The analyst from the Wisconsin State Crime

Laboratory who originally tested the substance seized

from Maxwell retired before trial, so the government

offered the testimony of his co-worker instead. The coworker did not personally analyze the substance herself,
2 No. 12-1809

but concluded that it contained crack cocaine after reviewing the data generated by the original analyst.

Maxwell did not object to this testimony of the co-worker

at trial, but now argues on appeal that it violated the

Confrontation Clause of the Sixth Amendment. We

reject Maxwell’s argument because he has failed to

show plain error in permitting a forensic analyst to rely

on data gathered by a colleague when she was subject to

cross-examination at trial. Maxwell also argues that

the district court should have sentenced him under different statutory and Sentencing Guideline ranges under

the Fair Sentencing Act of 2010. But because we cannot

determine whether the district court would have given

Maxwell the same sentence had it known that the

Fair Sentencing Act applied, we issue a limited remand

to the district court.

I. BACKGROUND

On July 29, 2010, Maxwell was arrested after he sold

2.9 grams of crack cocaine, 2.8 grams of powder cocaine,

and five ecstasy pills to a confidential informant. The

arresting officer, Detective Jeff Wilson, searched Maxwell

and found two straws and a bag hidden in his underwear. The bag contained an off-white substance, which

Wilson weighed, “field-tested,” and concluded was

13 grams of crack cocaine.

A federal grand jury indicted Maxwell on a single

count of possessing with intent to distribute five or

more grams of a mixture or substance containing cocaine

base in violation of 21 U.S.C. § 841(a)(1). John Nied,
No. 12-1809 3

a forensic scientist in the Controlled Substances Unit at

the Wisconsin State Crime Laboratory, analyzed the

substance that Detective Wilson seized from Maxwell

and memorialized his findings in a report that confirmed

the presence of cocaine base (i.e., crack cocaine). Nied

had retired by the time of Maxwell’s trial, and so the

government notified Maxwell that it intended to

call Michelle Gee, another forensic scientist with the

Wisconsin State Crime Laboratory, in Nied’s place.

Maxwell made no objection.

Maxwell fired all three of his count-appointed lawyers

and proceeded to trial pro se (with the aid of standby

counsel). At trial, Gee testified that the substance seized

from Maxwell contained cocaine base. Gee explained

that in reaching this conclusion, she did not perform

the “primary analysis” of the substance, but rather rev i e w ed the raw d ata gen erat ed fro m gas

chromatography and mass spectrometry tests performed

by Nied. Maxwell did not object to any of this testimony

or cross-examine Gee about the nature of the substance.

Instead, he maintained that the drugs he possessed

were for his own use and not intended for distribution.

After the jury found Maxwell guilty, he moved for a

judgment of acquittal, or in the alternative, a new trial.

The district court denied the motion and sentenced

Maxwell to twelve years’ imprisonment. Maxwell now

appeals his conviction and sentence. 
4 No. 12-1809

Maxwell argues that plain error should not apply because the 1

government has waived any forfeiture defense. According to

Maxwell, the government lost its right to invoke plain error

review on appeal because it failed to invoke plain error when it

responded to his motion for judgment of acquittal before the

district court. We have previously recognized that “a party

can waive a waiver argument by failing to raise it,” United

States v. Hassebrock, 663 F.3d 906, 914 (7th Cir. 2011), but the

cases to which Maxwell points involve the government’s

failure to argue for plain error in its brief on appeal. See, e.g.,

United States v. Blagojevich, 612 F.3d 558, 560 (7th Cir. 2010);

United States v. Paredes, 87 F.3d 921, 924 (7th Cir. 1996). That is

not the situation here. Moreover, “we have also recognized

that the waiver doctrine is designed for our protection as

much as that of an opposing party, and therefore need not be

(continued...)

II. ANALYSIS

A. No Confrontation Clause Violation

Maxwell’s main argument on appeal is that the Sixth

Amendment’s Confrontation Clause prohibited Gee

from testifying that the substance found on him contained cocaine base when Gee did not conduct the lab

work herself. A defendant has the burden of raising any

Confrontation Clause objection in the first instance at

trial. See Melendez-Diaz v. Massachusetts, 557 U.S. 305, 327

(2009). Because Maxwell made no objection to Gee’s

testimony until his post-trial motion below, we review

this constitutional claim for plain error. See United States

v. Garvey, 688 F.3d 881, 884 (7th Cir. 2012); United States v.

Moon, 512 F.3d 359, 361 (7th Cir. 2008).1
No. 12-1809 5

(...continued) 1

asserted by a party for us to invoke it.” Hassebrock, 663 F.3d

at 914 (internal quotation marks and citations omitted).

The Sixth Amendment’s Confrontation Clause provides that, “[i]n all criminal prosecutions, the accused

shall enjoy the right . . . to be confronted with the witnesses against him.” We have had several occasions in

recent years to evaluate potential Confrontation Clause

problems that arise when an expert witness from a crime

lab testifies about the results of forensic testing performed by another analyst. See United States v. Turner, 709

F.3d 1187, 1190 (7th Cir. 2013); Garvey, 688 F.3d at 884-

85; Moon, 512 F.3d at 361. We already know that

the government may not introduce forensic laboratory

reports or affidavits reporting the results of forensic

tests and use them as substantive evidence against a

defendant unless the analyst who prepared or certified

the report is offered as a live witness subject to crossexamination. See Bullcoming v. New Mexico, 131 S. Ct. 2705,

2710 (2011); Melendez-Diaz, 557 U.S. at 329. But, as we

have explained before, “an expert who gives testimony

about the nature of a suspected controlled substance

may rely on information gathered and produced by an

analyst who does not himself testify,” Turner, 709 F.3d at

1190, as “the facts or data” on which the expert bases

her opinion “need not be admissible in evidence in

order for the [expert’s] opinion or inference to be admitted.” Moon, 512 F.3d at 361 (citing Fed. R. Evid. 703).

And this makes sense because the raw data from a lab
6 No. 12-1809

test are not “statements” in any way that violates the

Confrontation Clause. Id. at 362.

What makes this case different (and relatively more

straightforward) from those we have dealt with in the

past is that Gee did not read from Nied’s report while

testifying (as in Garvey), she did not vouch for whether

Nied followed standard testing procedures or state that

she reached the same conclusion as Nied about the

nature of the substance (as in Turner), and the government did not introduce Nied’s report itself or any

readings taken from the instruments he used (as in

Moon). Maxwell argues that Nied’s forensic analysis is

testimonial, but Gee never said she relied on Nied’s

report or his interpretation of the data in reaching her

own conclusion. Instead, Gee simply testified (1) about

how evidence in the crime lab is typically tested when

determining whether it contains a controlled substance,

(2) that she had reviewed the data generated for

the material in this case, and (3) that she reached an

independent conclusion that the substance contained

cocaine base after reviewing that data.

Maxwell urges us to find a Confrontation Clause problem with Gee’s testimony particularly in light of Williams

v. Illinois, 132 S. Ct. 2221 (2012)—a case the district court

did not have the benefit of at trial. In Williams, a state

crime lab sent vaginal swabs taken from a rape victim

to Cellmark, a private laboratory, for DNA analysis. At

trial, an independent forensic expert, who played no

role in the Cellmark analysis, confirmed that “there was

a computer match generated of the male DNA profile
No. 12-1809 7

found in semen from the vaginal swabs of [the victim] to

a male DNA profile” produced by the state crime lab

from a sample of the defendant’s blood. Id. at 2236. A

plurality of the Court found no Confrontation Clause

problem with this testimony, but the Court’s 4-1-4 division

left no clear guidance about how exactly an expert must

phrase its testimony about the results of testing performed by another analyst in order for the testimony to

be admissible. See id. at 2270, 2277 (Kagan, J., dissenting);

see also Turner, 709 F.3d at 1189 (explaining that “the

divergent analyses and conclusions of the plurality and

dissent sow confusion as to precisely what limitations

the Confrontation Clause may impose when an expert

witness testifies about the results of testing performed

by another analyst, who herself is not called to testify”).

There is little question that Gee’s interpretation of Nied’s

data in this case was testimonial in nature—its sole purpose was to prove that the seized substance was cocaine base. But even after Williams, we have explained

that “an appropriately credentialed individual may

give expert testimony as to the significance of data produced by another analyst.” Turner, 709 F.3d at 1190-91

(citing Williams, 132 S. Ct. at 2233-35). In other words,

Maxwell was not deprived of his Sixth Amendment right

simply by virtue of the fact that Gee relied on Nied’s

data in reaching her own conclusions, especially since

she never mentioned what conclusions Nied reached

about the substance. See id.

Perhaps more fundamentally, unlike the defendants

in Williams or Turner, Maxwell never objected to Gee’s

testimony at trial and he never denied that the substance
8 No. 12-1809

at issue was, in fact, crack cocaine. We certainly understand the value in cross-examining the person who

actually performed the forensic tests on the substance

in question if the accuracy of those tests is doubted, for

we surely recognize that these tests are not infallible. See

Williams, 132 S. Ct. at 2275 (Kagan, J., dissenting); Turner,

709 F.3d at 1192; United States v. Washington, 498 F.3d 225,

235 (4th Cir. 2007) (Michael, J., dissenting). But Maxwell

only cross-examined Gee on the weight—not the composition—of the drugs because he was focused solely on

showing his lack of intent to distribute. There was no

question at trial about the type of drugs being distributed.

Moreover, the strategic decision to demand live testimony is the defendant’s choice to make, and one that

many defendants (including Maxwell) opt to forego—

sometimes for good reasons. See Melendez-Diaz, 557 U.S.

at 328 (“It is unlikely that defense counsel will insist on

live testimony whose effect will be merely to highlight

rather than cast doubt upon the forensic analysis.”);

Moon, 512 F.3d at 361 (“That it may be to defendants’

advantage to accept the hearsay version of evidence

makes it problematic to entertain a Crawford claim via

the plain-error clause of Fed. R. Evid. 103(d). A defendant

who sincerely wants live testimony should make the

demand, so that the declarant can be produced. The lack

of a demand for testimony by an available declarant

leads to the conclusion that the appellate argument is

strategic rather than sincere.”).

So for all of these reasons, we conclude that Gee’s

testimony did not violate the Confrontation Clause.

Because there was no error, the admission of the testi-
No. 12-1809 9

mony was not plainly erroneous. See United States v.

Olano, 507 U.S. 725, 732-33 (1993).

B. Remand Is Necessary Under the Fair Sentencing Act

Maxwell also argues that he is entitled to resentencing

because the Fair Sentencing Act of 2010 (FSA) makes him

subject to lower statutory and Sentencing Guidelines

ranges. Maxwell did not ask the district court to apply

the FSA below, so our review is for plain error. United

States v. Taylor, 520 F.3d 746, 747 (7th Cir. 2008).

The FSA, which took effect on August 3, 2010, increased

the threshold amounts of crack that trigger mandatory

minimum penalties under 21 U.S.C. § 841(b)(1). However,

at the time of Maxwell’s sentencing in February 2012,

this court had held that the FSA did not apply to defendants, like Maxwell, whose offense occurred before

the FSA took effect. See United States v. Fisher, 635 F.3d 336,

340 (7th Cir. 2011). So using pre-FSA law, the district court

sentenced Maxwell (who was convicted of possessing

13 grams of crack) under 21 U.S.C. § 841(b)(1)(B), which

provided a statutory range of 5-40 years’ imprisonment.

Given his career offender status, his offense level was

34 under U.S.S.G. § 4B1.1(b) in light of the 40-year

statutory maximum. Combining an offense level of 34

with a Category VI criminal history resulted in a Guidelines range of 262-327 months’ imprisonment.

But in June 2012, the Supreme Court reversed Fisher in

Dorsey v. United States, 132 S. Ct. 2321, 2335-36 (2012), and

confirmed that the FSA’s lower mandatory minimums
10 No. 12-1809

apply to all defendants sentenced after August 3, 2010. In

light of Dorsey, both parties agree that Maxwell is subject

to a lower statutory range of 0-20 years. See 21 U.S.C.

§ 841(b)(1)(C) (now applying to crack quantities less

than 28 grams). This results in a significant difference

in the advisory Guidelines range of 262-327 months (preFSA) versus 210-240 months (post-Dorsey). See U.S.S.G.

§ 4B1.1(b)(3) (setting offense level at 32 for career

offenders when their statutory maximum is 20 years or

more, but less than 25 years); § 5G1.1 (lowering upper

end of Guidelines because of the 20 year maximum).

Because the district court calculated Maxwell’s range

as 262-327 months, we agree that procedural error

occurred at sentencing.

The government concedes that Maxwell is subject to

a lower Guidelines range, but maintains that he has not

established plain error because he has failed to prove

that the district court would have imposed a lower sentence had it known the FSA applied. In other similar

cases where we could not be certain whether the

district court would imposed a different sentence, we

have ordered a limited remand under the procedure

outlined in United States v. Paladino, 401 F.3d 471, 483-84

(7th Cir. 2005) (explaining the procedure involves “retaining jurisdiction of the appeal, [while] order[ing] a

limited remand to permit the sentencing judge to determine whether he would (if required to resentence) reimpose his original sentence”). See, e.g., United States v.

Billian, 600 F.3d 791, 795 (7th Cir. 2010); Taylor, 520 F.3d

at 748. We believe that is the appropriate procedure

here as well because the district court gave no indica-
No. 12-1809 11

tion that it would have imposed the same sentence regardless of the FSA’s application. In sentencing Maxwell

to 144 months, the court noted that it “could have

justified going to a much higher sentence,” but also

found “some justification for a sentence below the guideline range” and stated that it was “unwilling to give up

on this defendant.” While it is possible that Maxwell’s

sentence would have been the same even if the court

had applied the FSA, there is also reason to think it

would have been lower, so we order a limited Paladino

remand so that the district court may inform us whether

it wants to resentence the defendant. If the district court

states that it would reimpose the original sentence, then

we will affirm Maxwell’s sentence if it is reasonable.

Paladino, 401 F.3d at 484. If, instead, the district court

states that it would have imposed a different sentence

had it known the FSA applied, then we will vacate the

original sentence and remand for resentencing. Id. This

court will accordingly retain jurisdiction until it has

received the district court’s response.

III. CONCLUSION

For these reasons, we REMAND the case to the district

court in accordance with the procedure set forth above.

The judgment of the district court is AFFIRMED in all

other respects.

7-19-13