In the

United States Court of Appeals
              For the Seventh Circuit

No. 12-1809

U NITED S TATES OF A MERICA,
                                            Plaintiff-Appellee,
                               v.

M AURICE M AXWELL,
                                        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.



       A RGUED A PRIL 19, 2013—D ECIDED JULY 19, 2013




 Before E ASTERBROOK, Chief Judge, and P OSNER and
W ILLIAMS, Circuit Judges.
  W ILLIAMS, 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 co-
worker did not personally analyze the substance herself,
2                                             No. 12-1809

but concluded that it contained crack cocaine after re-
viewing 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 dif-
ferent 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 under-
wear. 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 re-
viewed the raw data generated from 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

                        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 con-
tained 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, 

, 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, 

, 884 (7th Cir. 2012); United States v.
Moon, 

, 361 (7th Cir. 2008).1


1
  Maxwell argues that plain error should not apply because the
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, 

, 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, 

, 560 (7th Cir. 2010);
United States v. Paredes, 

, 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...)
No. 12-1809                                                 5

  The Sixth Amendment’s Confrontation Clause pro-
vides that, “[i]n all criminal prosecutions, the accused
shall enjoy the right . . . to be confronted with the wit-
nesses 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 per-
formed by another analyst. See United States v. Turner, 

, 1190 (7th Cir. 2013); 

-
85; 

. 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 cross-
examination. See Bullcoming v. New Mexico, 

,
2710 (2011); 

. 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,” 

, 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 ad-
mitted.” 

(citing Fed. R. Evid. 703).
And this makes sense because the raw data from a lab



1
  (...continued)
asserted by a party for us to invoke it.” 

(internal quotation marks and citations omitted).
6                                               No. 12-1809

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

  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 govern-
ment 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 prob-
lem with Gee’s testimony particularly in light of Williams
v. Illinois, 

(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. 

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 per-
formed by another analyst in order for the testimony to
be admissible. See 

2277 (Kagan, J., dissenting);
see also 

(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 pur-
pose was to prove that the seized substance was co-
caine base. But even after Williams, we have explained
that “an appropriately credentialed individual may
give expert testimony as to the significance of data pro-
duced by another analyst.” 

-91
(citing 

). 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 

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 under-
stand 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

(Kagan, J., dissenting); 

; United States v. Washington, 

,
235 (4th Cir. 2007) (Michael, J., dissenting). But Maxwell
only cross-examined Gee on the weight—not the composi-
tion—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 testi-
mony is the defendant’s choice to make, and one that
many defendants (including Maxwell) opt to forego—
sometimes for good reasons. See 

(“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.”);

(“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, 

, 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, 

, 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 defen-
dants, like Maxwell, whose offense occurred before
the FSA took effect. See United States v. Fisher, 

,
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 Guide-
lines range of 262-327 months’ imprisonment.
  But in June 2012, the Supreme Court reversed Fisher in
Dorsey v. United States, 

, 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 (pre-
FSA) 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 sen-
tence 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, 

, 483-84
(7th Cir. 2005) (explaining the procedure involves “re-
taining jurisdiction of the appeal, [while] order[ing] a
limited remand to permit the sentencing judge to deter-
mine whether he would (if required to resentence) reim-
pose his original sentence”). See, e.g., United States v.
Billian, 

, 795 (7th Cir. 2010); 

. 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 re-
gardless 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 guide-
line 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.

. 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. 

will accordingly retain jurisdiction until it has
received the district court’s response.


                   III. CONCLUSION
  For these reasons, we R EMAND the case to the district
court in accordance with the procedure set forth above.
The judgment of the district court is A FFIRMED in all
other respects.




                          7-19-13