FILED
United States Court of Appeals
Tenth Circuit
December 12, 2008
UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 08-3090
v. (D. Kansas)
(No. 5:99-CR-40045-JAR-1)
KEITH MADRILL LEE BENTLEY,
Defendant-Appellant.
ORDER AND JUDGMENT*
Before McWILLIAMS, Senior Circuit Judge, BALDOCK, Senior Circuit Judge, and
BRORBY, Senior Circuit Judge.**
On November 30, 1999, in the United States District Court for the District of
Kansas, Keith Madrill Lee Bentley, the defendant, after pleading guilty to various drug
charges, was sentenced to imprisonment for 100 months on each of five counts in the
indictment to be served concurrently, and, on his release from imprisonment, he was to be
placed on supervised release for a term of six years on each of the five counts, to be served
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
**
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered
submitted without oral argument.
concurrently.
On October 3, 2006, upon his release from imprisonment, the defendant began his
six-year sentence of supervised release. Conditions of that release included the following:
(1) the defendant shall not commit another federal, state, or local crime; (2) the defendant
shall not illegally possess a controlled substance; and (3) the defendant shall not leave
Kansas without permission of the Court or the Probation Office.
On May 17, 2007, and twice thereafter, the Probation Office filed in the District
Court for the District of Kansas a petition to issue a warrant for the defendant’s arrest
based on his violations of the terms of his supervised release, including the following:
possession of a controlled substance in St. Louis, Missouri; leaving Kansas and going to
Missouri without permission of the Court or the Probation Office; and, on another
occasion, possession of a controlled substance in Topeka, Kansas.
After a full evidentiary hearing, the District Court on March 18, 2008, revoked the
defendant’s supervised release and pursuant to 18 U.S.C. § 3583(e) sentenced him to
imprisonment for 36 months on each of the five counts, to run concurrently, with the
recommendation that the sentence be served in a federal medical center facility.
Defendant filed a timely notice of appeal.
On appeal, defendant’s counsel, who represented the defendant in the District
Court, has filed a so-called Anders Brief. Anders v. California, 386 U.S. 738 (1967). A
copy of that brief was served on the United States and the defendant, and, by letter, we
have been advised that the United States would file no answer brief. In his Anders Brief,
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defendant’s counsel stated that there were three possible issues that could be, and are,
raised in the instant appeal. As framed by counsel, these issues are as follows:
Issue I: Whether the evidence was sufficient to support
the revocation of Mr. Bentley’s supervised
release.
Issue II: Whether the sentenced imposed was excessive in light of the
nature of Mr. Bentley’s violations.
Issue III: Whether the issues Mr. Bentley wishes to appeal are without
merit and accordingly whether court-appointed counsel should
be allowed to withdraw pursuant to 10th Cir. R. 46.4(B)(1) and
Anders v. California, 386 U.S. 738, 97 S. Ct. 1396 (1967).
I.
.
After an extended evidentiary hearing on the Probation Officer’s petition to revoke
the defendant’s supervised release, the District Court found by a preponderance of the
evidence that the defendant had violated the terms of his supervised release in at least
three particulars: on two separate occasions he had committed a federal, state, or local
crime, i.e. he had illegally possessed a controlled substance and, in addition, he had failed
to comply with the requirement that he not leave the judicial district of Kansas without the
permission of the court or probation officer. On appeal, in his Anders brief, counsel first
challenges the sufficiency of evidence to support the revocation of defendant’s supervised
release. Our review of the record convinces us that the evidence was amply sufficient.
The record clearly shows that on one occasion a car which was owned by the
defendant and in which the defendant was a front seat passenger was stopped by local
police in St. Louis, Missouri, for a traffic violation, the driver of that car being defendant’s
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fiancee, who had failed to stop at a stop sign. An arresting officer testified that just before
the stop he had observed the passenger lean forward and apparently placed an object under
his car seat, and then lean backward in his seat. After the stop was accomplished, the
officer found a loaded gun under the seat where the defendant had been seated, and a
subsequent search of the vehicle revealed controlled substances.1
On a separate occasion, in Topeka, Kansas, a local resident called the local police
and complained that her son’s friend was “trashing” her home and battered her. The
police responded, however, by that time the “trasher” had left the scene, but had left his
vehicle in the driveway. The defendant later returned to the scene of the “trashing.” A
search of defendant’s vehicle also disclosed the presence of a controlled substance.
Finally, by his presence in St. Louis, Missouri, it follows that the defendant had left
Kansas and had gone to Missouri in violation of the provisions in his supervised release
prohibiting interstate travel without the permission of the court or the probation officer,
neither of which he had.
In addition to the foregoing, it would appear that the defendant also violated the
federal law prohibiting a felon from possessing a firearm. In any event, we agree with
counsel that any “sufficiency of the evidence” argument is “wholly frivolous” under
Anders.
1
At the revocation hearing the defendant elected not to testify. His fiancee, however, did
testify and stated that the contents of the car, i.e. guns and controlled substances, belonged to
her, not the defendant. One of the arresting officers testified that the defendant asked the officer
if Ms. Irons, his fiancee, could “take the case for him” because he was on federal release and she
did not have a criminal record.
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Counsel next argues that the sentence imposed, i.e., 36 months imprisonment on
each of the five counts, to be served concurrently, is “excessive in light of Mr. Bentley’s
violations.” Again we agree with counsel that this issue is also “wholly frivolous.”
As stated, after revoking defendant’s term of supervised release, the District Court
sentenced defendant to imprisonment for 36 months on each of the five counts to be
served concurrently, pursuant to 18 U.S.C. § 3583(e). That statute provides that after
revoking a defendant’s term of supervised release, the district court could impose a
sentence as follows:
(3) revoke a term of supervised release, and require the defendant to serve in
prison all or part of the term of supervised release authorized by statute for the
offense that resulted in such term of supervised release without credit for time
previously served on postrelease supervision, if the court, pursuant to the Federal
Rules of Criminal Procedure applicable to revocation of probation or supervised
release, finds by a preponderance of the evidence that the defendant violated a
condition of supervised release, except that a defendant whose term is revoked
under this paragraph may not be required to serve more than 5 years in prison if the
offense that resulted in the term of supervised release is a class A felony, more than
3 years in prison if such offense is a class B felony, more than 2 years in prison if
such offense is a class C or D felony, or more than one year in any other case;
The defendant in the instant case started his term of supervised release on October
5, 2006, and such release was revoked on March 18, 2008. Because defendant's original
offense consisted of Class B felonies, the statutory maximum is three years imprisonment.
The district court also consulted the United States Sentencing Guidelines policy statement
on revocation of supervised release and based on defendant's Grade of Violation and
Criminal History, found the range of imprisonment to be 30-37 months. It was in this
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setting that the District Court sentenced defendant to imprisonment for three years, i.e. 36
months.
18 U.S.C. § 3583(e) does state that in sentencing under that statute a court may
consider, inter alia, the factors set forth in 18 U.S.C. § 3553. It is in this statutory setting
that counsel suggests that the sentence of 36 months was “excessive” and presumably
“unreasonable.” However, we again agree with counsel that this issue is “wholly
frivolous” under Anders. All things considered, defendant’s sentence of 36 months was
neither “excessive” nor “unreasonable.”
As to counsel’s third so-called “issue” raised in this appeal, i.e. whether “the issues
that Mr. Bentley wishes to appeal are without merit,” and that counsel should be allowed
to withdraw pursuant to Anders, we agree with counsel that they are “without merit” and
therefore “wholly frivolous.”
Accordingly, under Anders, we dismiss the present appeal and grant counsel’s
request to withdraw.
Entered for the Court
Robert H. McWilliams
Senior Circuit Judge
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