United States v. Mintai Bedford ( 2019 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 9, 2019
Decided May 9, 2019
Before
JOEL M. FLAUM, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 18-3674
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Southern District of Illinois.
v. No. 3:09-CR-30084-SMY-1
MINTAI BEDFORD, Staci M. Yandle,
Defendant-Appellant. Judge.
ORDER
Mintai Bedford violated the conditions of his supervised release when he called
the police and threatened that a shooting would occur at the college he was
attending—an act later deemed a terrorist threat in violation of Illinois law. 720 ILCS
5/29D-20(a). His supervised release was revoked, and he was sentenced to 47 months
and 29 days in prison. Bedford filed a notice of appeal, but his appointed counsel
asserts that the appeal is frivolous and moves to withdraw. See Anders v. California,
386 U.S. 738 (1967). Bedford responded to counsel’s motion. See CIR. R. 51(b).
A defendant has a presumptive right to counsel when he plausibly contests the
violations on which revocation of his supervised release is based. See Gagnon v. Scarpelli,
411 U.S. 778, 790 (1973). For appeals of a revocation decision, our practice has been to
No. 18-3674 Page 2
apply the Anders framework. United States v. Wheeler, 814 F.3d 856, 857 (7th Cir. 2016).
Counsel’s submission explains the nature of the case and addresses the issues that an
appeal of this kind might involve. Because the analysis appears thorough, we limit our
review to the subjects that counsel discusses and those that Bedford raises in response.
See CIR. R. 51(b); United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).
Counsel and Bedford both consider whether he could challenge the district
court’s finding that he made a terrorist threat, 720 ILCS 5/29D-20(a), thereby violating
the supervised-release condition that he not commit a crime. To support this finding,
the government had to show by a preponderance of the evidence, see 18 U.S.C.
§ 3583(e)(3), that Bedford, “with the intent to intimidate or coerce a significant portion
of a civilian population, … knowingly threaten[ed] to commit … a terrorist act … and
thereby caus[ed] a reasonable expectation or fear of the imminent commission of a
terrorist act.” 720 ILCS 5/29D-20(a). A “terrorist act” is “any act that is intended to cause
or create a risk and does cause or create a risk of death or great bodily harm to one or
more persons.” 720 ILCS 5/29D-10(l).
We agree with counsel’s contention that this challenge would be frivolous. Based
on the evidence that the government presented at the revocation hearing, the district
court could conclude more likely than not that Bedford threatened that a shooting
would take place at the school. Besides playing a recording of the call for the court, the
government offered testimony from a Madison County (Illinois) police officer that the
Alton police department had received a call from a blocked number, and that the caller
twice had said that a shooting would occur at Lewis & Clark College, where Bedford
was a student. To show that the call had been made by Bedford, the government
introduced evidence that police had traced the call’s location to his apartment complex.
The government also introduced evidence that Bedford had called his probation officer
from the same number, that Bedford’s mother had listed the number in her phone as
“son,” and that Bedford had sent several text messages from another phone identifying
the blocked number as his. Further, the district court reasonably could infer Bedford’s
intent to intimidate people from “the circumstances surrounding the commission of the
offense,” People v. Perez, 725 N.E.2d 1258, 1265 (Ill. 2000); see People v. Bona, 118 N.E.3d
1272, 1287–88 (Ill. App. Ct. 2018), specifically, the tone and urgency of the caller’s voice
(the court said that it was “not just what was said, it’s how it was said”).
Relatedly, Bedford urges that the preponderance standard for revocation is
unconstitutional and has moved to stay disposition of this appeal until the Supreme
Court reviews United States v. Haymond, 869 F.3d 1153 (10th Cir. 2017), cert. granted,
No. 18-3674 Page 3
139 S. Ct. 398 (2018), a Tenth Circuit opinion invalidating 18 U.S.C. § 3583(k), which
mandates a prison term of at least five years for registered sex offenders who commit
specific enumerated crimes while on supervised release. In Haymond, the Tenth Circuit
found subsection (k) unconstitutional because it increases the statutory minimum
penalty to which a defendant may be subjected and does so based on facts not found by
a jury and not proved beyond a reasonable doubt. See 869 F.3d at 1162, 1166 (citing
Apprendi v. New Jersey, 530 U.S. 466 (2000); Alleyene v. United States, 570 U.S. 99 (2013);
United States v. Booker, 543 U.S. 220 (2005)). But Haymond is inapplicable because
§ 3583(k) played no role in Bedford’s sentence; he was sentenced under § 3583(e)(3),
which merely authorizes a court to impose a term of imprisonment for a
supervised-release violation and does so based on the original crime of conviction.
See United States v. McIntosh, 630 F.3d 699, 702–03 (7th Cir. 2011) (holding that the rule in
Apprendi does not apply to a sentence imposed after the revocation of supervised
release).
Counsel next contemplates challenging the district court’s calculation of the
policy-statement range. Without any objection from Bedford, the court accepted the
probation officer’s calculation of a 30- to 37-month imprisonment range (based on a
grade A violation and criminal history category of III). See U.S.S.G. §§ 7B1.1(a)(1)(B),
7B1.4. We find no fault with these calculations and agree with counsel that any claim of
error would be frivolous.
Counsel also considers whether Bedford could argue that his above-range
sentence of 47 months and 29 days exceeded the 5-year statutory maximum set forth in
18 U.S.C. § 3583(e)(3) for crimes in which the underlying offense had a maximum life
sentence. But Bedford’s underlying offense—possessing with intent to distribute 280 or
more grams of cocaine base—allows for a maximum life sentence, 21 U.S.C. § 841(a)(1),
(b)(1)(A)(iii), so any challenge based on a violation of § 3583(e)(3) would be pointless.
Counsel then considers, but appropriately rejects as frivolous, an argument that
Bedford’s underlying drug offense no longer supported a 5-year revocation term under
the recently passed First Step Act of 2018. See Pub. L. No. 115-391, 132 Stat. 5194, § 404
(2018). This Act made provisions of the Fair Sentencing Act, sec. 2, § 401(b)(1), 124 Stat.
2372 (2010) (codified in 21 U.S.C. § 841(b)(1)(A)(iii)), retroactive to cocaine-base
defendants sentenced before August 3, 2010. But Bedford was sentenced after that date
and was held liable for more than 1000 grams of cocaine base, so his offense still carried
a maximum sentence of life in prison under the Fair Sentencing Act. See 21 U.S.C.
§ 841(b)(1)(A); see also United States v. Long, 748 F.3d 322, 328, 330 (7th Cir. 2014).
No. 18-3674 Page 4
Finally, counsel considers whether Bedford could challenge the substantive
reasonableness of his sentence but rightly concludes that doing so would be futile. The
district court sufficiently justified the sentence based on the factors in 18 U.S.C.
§ 3553(a), specifically, the nature and circumstances of the violation (noting the
seriousness of threatening a school shooting); Bedford’s history and characteristics
(highlighting his violent history, including his previous convictions for battery and
weapons offenses); and, “most important,” the need to protect the public (citing
Bedford’s repeated violent behavior and the failure of his previous incarceration to
deter him from committing new crimes). See 18 U.S.C. § 3583(e).
We GRANT counsel’s motion to withdraw, DENY Bedford’s “Motion to Hold in
Abeyance,” and DISMISS the appeal.