                              In the

    United States Court of Appeals
                 For the Seventh Circuit
No. 15-2799

UNITED STATES OF AMERICA,
                                                 Plaintiff-Appellee,

                                v.


MAURICE L. MAXWELL,
                                             Defendant-Appellant.

         Appeal from the United States District Court for the
                    Western District of Wisconsin.
     No. 3:11-cr-00025-wmc-1 — William M. Conley, Chief Judge.


       ARGUED APRIL 5, 2016 — DECIDED MAY 24, 2016


   Before WOOD, Chief Judge, and BAUER and WILLIAMS, Circuit
Judges.
    BAUER, Circuit Judge. Defendant-appellant, Maurice Max-
well, was convicted of possession with intent to distribute five
grams or more of a substance containing a cocaine base in
violation of 21 U.S.C. § 841(a)(1). Although his conviction was
affirmed on an earlier appeal, we have remanded this case
twice for resentencing in light of recent opinions from the
United States Supreme Court and our own circuit. Maxwell
2                                                   No. 15-2799

now appeals for the third time, arguing that the district court
miscalculated the applicable sentencing range under the
United States Sentencing Commission Guidelines Manual. It
appears that the third time’s the charm; for the reasons that
follow, we affirm the district court’s sentence.
                     I. BACKGROUND
    A jury convicted Maxwell on December 7, 2011. His initial
sentencing hearing was on February 29, 2012. At the hearing,
the district court applied the Sentencing Guidelines’ career
offender enhancement because Maxwell was over the age of
eighteen when he committed the instant offense, a controlled
substance offense, and he had three qualifying prior convic-
tions: a Wisconsin conviction for possession with intent to
deliver; a Minnesota conviction for simple robbery; and a
Minnesota conviction for fleeing from an officer. Applying the
career offender enhancement, Maxwell’s Sentencing Guidelines
range was between 262 and 327 months’ imprisonment.
    The district court sentenced Maxwell to 144 months’
imprisonment, adjusted to 125 months to account for the 19
months that Maxwell had already served. The district court
also imposed five years of supervised release. Maxwell
appealed, and this court affirmed his conviction. See United
States v. Maxwell, 724 F.3d 724 (7th Cir. 2013). But we found
that the Supreme Court’s decision in Dorsey v. United States,
132 S. Ct. 2321 (2012), held that the Fair Sentencing Act’s lower
mandatory minimums applied to all defendants sentenced
after August 3, 2010. Id. at 728. So we ordered “a limited
Paladino remand so that the district court may inform us
whether it wants to resentence the defendant.” Id. at 729. On
No. 15-2799                                                     3

remand, the district court noted that in light of Dorsey, it might
have issued a different sentence; so we ordered a full remand
and resentencing. See United States v. Maxwell, 527 F. App’x
550, 551 (7th Cir. 2013).
   On July 30, 2014, the district court resentenced Maxwell,
noting that in light of the Fair Sentencing Act and Dorsey,
Maxwell’s Sentencing Guidelines range was now between 210
and 240 months. The district court sentenced Maxwell to 120
months’ imprisonment and gave the following explanation:
   Taking into consideration the nature of [Maxwell’s]
   offense and the correct advisory guidelines; as well as
   [Maxwell’s] personal history, characteristics and recent
   steps toward rehabilitation; I find, as to Count 1 of the
   indictment, that a sentence of 120 months is reasonable
   and not more than necessary to satisfy the statutory
   purposes of sentencing set forth at Section 3553(a) of
   Title 18.
The district court again credited Maxwell 19 months for the
amount of time he had served in prison prior to his conviction.
The district court retained the original terms and conditions of
Maxwell’s supervised release.
   Maxwell appealed again. On February 25, 2015, Maxwell
and the government filed a joint motion for summary reversal
and remand for resentencing in regards to certain conditions
of Maxwell’s supervised release, in light of United States v.
Thompson, 777 F.3d 368 (7th Cir. 2015). We granted the motion
on April 30, 2015, vacating the sentence and remanding for a
second resentencing.
4                                                   No. 15-2799

    The district court held Maxwell’s second resentencing
hearing on August 11, 2015. Maxwell argued, and the govern-
ment conceded, that in light of Johnson v. United States, 135
S. Ct. 2551 (2015), Maxwell’s prior Minnesota conviction for
fleeing from an officer no longer constituted a “crime of
violence” under the Sentencing Guidelines for purposes of the
career offender enhancement. Maxwell also argued that his
prior Minnesota conviction for simple robbery was not a crime
of violence, and thus he was not a career offender. The district
court responded:
    [I]f I didn’t make it clear: in my last resentencing, as
    well as really the first one, I didn’t feel bound by the
    career offender guideline. I arrived at a sentence based
    on the factors of Section 3553(a) of Title 18 and I con-
    tinue to believe that the sentence imposed under the
    amendments applies … . I did consider the career
    offender guidelines before thinking about an appropri-
    ate sentence, but I have not relied upon those guidelines
    in arriving at the sentence here. And so whether or not
    simple robbery is an appropriate consideration or not, I
    am comfortable with the sentence that has been im-
    posed independent of those guidelines.
The district court again sentenced Maxwell to 120 months’
imprisonment, with credit for 19 months. Maxwell appealed.
                      II. DISCUSSION
   Maxwell’s sole contention is that his prior Minnesota
conviction for simple robbery does not constitute a crime of
violence under the Sentencing Guidelines; and that the district
court erred by applying the career offender enhancement in
No. 15-2799                                                    5

calculating the applicable sentencing range. “We review
de novo whether a prior conviction qualifies as a predicate
conviction for purposes of applying the career offender
enhancement.” United States v. Womack, 610 F.3d 427, 430 (7th
Cir. 2010) (citation omitted).
    Under the Sentencing Guidelines, to qualify for the career
offender enhancement, a criminal defendant must: (1) be at
least 18 years old at the time he or she committed the instant
offense; (2) the instant offense must be a felony conviction for
either a crime of violence or a controlled substance offense; and
(3) the defendant must have “at least two prior felony convic-
tions of either a crime of violence or a controlled substance
offense.” U.S.S.G. § 4B1.1(a) (2015) (emphasis added). The
Sentencing Guidelines further state:
   (a) The term “crime of violence” means any offense
       under federal or state law, punishable by imprison-
       ment for a term exceeding one year, that –
          (1) has as an element the use, attempted use,
          or threatened use of physical force against the
          person of another, or
          (2) is burglary of a dwelling, arson, or extor-
          tion, involves use of explosives, or otherwise
          involves conduct that presents a serious poten-
          tial risk of physical injury to another.
U.S.S.G. § 4B1.2(a) (2015).
   As discussed above, while Maxwell originally had three
qualifying prior convictions, all parties now agree that his
conviction for fleeing from an officer no longer constitutes a
6                                                     No. 15-2799

crime of violence. Of his two remaining convictions, Maxwell
only challenges his prior Minnesota conviction for simple
robbery. He claims that it is not a crime of violence under the
Sentencing Guidelines because the Minnesota statute for
“simple robbery” is broader than § 4B1.2(a)’s definition of a
“crime of violence.” As a result, he claims the district court
improperly imposed the career offender enhancement.
    We apply the “categorical approach” to determine whether
Maxwell’s prior Minnesota conviction for simple robbery
qualifies as a crime of violence under § 4B1.2(a)(1). See United
States v. Woods, 576 F.3d 400, 403 (7th Cir. 2009) (citing James v.
United States, 550 U.S. 192 (2007)). Under the categorical
approach, we do not research the underlying facts of
Maxwell’s prior conviction. Id. (citations omitted). Rather, we
only examine whether the Minnesota simple robbery statute
has as an element of the offense the “use, attempted use, or
threatened use of physical force against the person of another.”
Id. (citations omitted); see also United States v. Curtis, 645 F.3d
937, 939–40 (7th Cir. 2011) (“The question is whether the
elements of the offense are of the type that would justify its
inclusion … without inquiring into the specific conduct of this
particular offender.”) (Internal quotations and citations
omitted).
    Minnesota’s Criminal Code defines “simple robbery” as
follows:
    Whoever, having knowledge of not being entitled
    thereto, takes personal property from the person or in
    the presence of another and uses or threatens the immi-
    nent use of force against any person to overcome the
No. 15-2799                                                       7

   person’s resistance or powers of resistance to, or to
   compel acquiescence in, the taking or carrying away of
   the property is guilty of robbery.
Minn. Stat. § 609.24 (emphasis added).
   Maxwell argues that the Minnesota statute is broader than
§ 4B1.2(a)(1) in two material respects. First, he notes that the
Minnesota statute only requires “force,” while the Sentencing
Guidelines specifically require “physical force.” Second, he
asserts that the Minnesota statute allows the force to be against
“any person,” while the Sentencing Guidelines state that the
physical force must be against the “person of another.” Both
arguments are without merit.
    We first address Maxwell’s argument regarding requisite
force. The United States Supreme Court has clarified that
“physical force” means “force capable of causing physical pain
or injury to another person.” Johnson v. United States, 559 U.S.
133, 140 (2010) (citation omitted); see also Curtis, 645 F.3d at 940
(applying Johnson to § 4B1.2(a)(1)). Maxwell contends that the
Minnesota statute does not clarify whether the “force” neces-
sary to constitute a simple robbery is force capable of causing
physical pain or injury. He speculates that “mental force”
could constitute a simple robbery in Minnesota, but not a crime
of violence under § 4B1.2(a)(1).
    We rely on Minnesota law to determine what amount of
force constitutes a simple robbery in Minnesota. See Johnson,
559 U.S. at 138 (citation omitted). Under Minnesota law, “fifth-
degree assault” is a lesser included offense of simple robbery.
State v. Stanifer, 382 N.W.2d 213, 220 (Minn. Ct. App. 1986).
Fifth-degree assault is defined under the Minnesota Criminal
8                                                    No. 15-2799

Code as either committing “an act with intent to cause fear in
another of immediate bodily harm or death,” or “intentionally
inflict[ing] or attempt[ing] to inflict bodily harm upon another.”
Minn. Stat. § 609.224 subd. 1 (emphasis added). Further, bodily
harm is defined under the Minnesota Criminal Code as
“physical pain or injury, illness, or any impairment of physical
condition.” Minn. Stat. § 609.02 subd. 7.
    Therefore, under Minnesota law, intentionally committing
an act that inflicts physical pain or injury on another, or
attempts or threatens to do so, is a lesser included offense of
simple robbery. As a result, although the Sentencing Guide-
lines state “physical force” while the Minnesota statute only
uses the word “force,” both convey force capable of causing
physical pain or injury. Maxwell’s argument that the Minne-
sota statute is broader than § 4B1.2(a)(1) fails.
    Maxwell also asserts that the Minnesota statute is broader
than the Sentencing Guidelines because it punishes force
applied against “any person,” while § 4B1.2(a)(1) only punishes
force applied against the “person of another.” Maxwell claims
this distinction is important because under Minnesota law an
individual who threatens to harm himself unless the victim
hands over his possessions commits simple robbery, but it
would not constitute a crime of violence under the Sentencing
Guidelines. However, Maxwell has not presented any instances
of simple robbery convictions in which the robber threatened
to harm himself if the victim did not surrender his property.
Maxwell cannot rely on fanciful hypotheticals not applicable in
real world contexts (apart from law school exams) to show that
the Minnesota statute is broader than the Sentencing Guide-
lines. See Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)
No. 15-2799                                                                  9

(“[T]o find that a state statute creates a crime outside the
generic definition of a listed crime in a federal statute requires
more than the application of legal imagination to a state
statute’s language. It requires a realistic probability, not a
theoretical possibility, that the State would apply its statute to
conduct that falls outside the generic definition of a crime.”).
    Further, the Advisory Committee Comments to Minnesota
Statute § 609.24 clarify this issue. Regarding the phrase
“[a]gainst any person,” the Comments state that “[t]he kind of
case covered involving one other than the victim is one in
which ‘X’ threatens to kill ‘Y’ if ‘Z’ does not hand over his
wallet.” Thus, although the Minnesota statute uses the words
“any person,” while § 4B1.2(a)(1) states “person of another,”
both cover situations in which a robber threatens to harm a
victim or a third person, not instances where the robber
threatens to harm himself.
    Therefore, since the Minnesota statute for simple robbery
is not broader than § 4B1.2(a)(1), it was appropriate for the
district court to rely on the career offender enhancement in
calculating Maxwell’s Sentencing Guidelines range.1



1
  Even if the career offender enhancement were inappropriate, we would
still affirm the sentence because the district court expressly rejected relying
on the Sentencing Guidelines range in determining Maxwell’s sentence. See
United States v. Abbas, 560 F.3d 660, 666–67 (7th Cir. 2009); see also
Molina-Martinez v. United States, 136 S. Ct. 1338, 1346 (2016) (“There may be
instances when, despite application of an erroneous Guidelines range, a
reasonable probability of prejudice does not exist … . The record in a case
may show, for example, that the district court thought the sentence it chose
was appropriate irrespective of the Guidelines range.”).
10                                               No. 15-2799

                    III. CONCLUSION
  For the foregoing reasons, the district court’s sentence is
AFFIRMED.
