United States v. Larry Bell ( 2022 )

NONPRECEDENTIAL DISPOSITION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 March 18, 2022
Decided March 28, 2022
Before
MICHAEL S. KANNE, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
No. 21-1819
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Central District of Illinois.
v. No. 04-20033-001
LARRY D. BELL, Sue E. Myerscough,
Defendant-Appellant. Judge.
ORDER
Shortly after obtaining compassionate release from federal prison, Larry Bell
violated the conditions of his supervised release by, among other things, committing a
state offense. At his revocation hearing, Bell admitted the government could prove by a
preponderance of the evidence that he violated a no-contact order by interacting with a
13-year-old child, who was a protected party. When imposing the sentence, the district
court said Bell was caught “dealing drugs to” two children he was forbidden to contact.
The court then sentenced him to 27 months’ imprisonment and 33 more months of
supervised release.
No. 21-1819 Page 2
Bell’s appointed counsel asserts this appeal is frivolous and moves to withdraw
by submitting a brief satisfying Anders v. California, 386 U.S. 738 (1967). Bell does not
have an unqualified right to counsel in appealing his revocation. See Gagnon v. Scarpelli,
411 U.S. 778, 790–91 (1973); United States v. Eskridge, 445 F.3d 930, 932–33 (7th Cir. 2006).
Nevertheless, our practice is to apply the Anders safeguards in such appeals.
See United States v. Brown, 823 F.3d 392, 394 (7th Cir. 2016). Counsel submitted an Anders
brief that addresses some of the issues we would expect to see, and Bell responded with
a letter discussing the issues he wishes to raise on appeal, including that the district
court relied on an erroneous fact concerning drug-dealing in selecting his sentence.
See CIR. R. 51(b). Because Bell identifies a nonfrivolous issue that counsel did not
consider, we discuss only that issue. See United States v. Bey, 748 F.3d 774, 776 (7th Cir.
2014). We conclude that Bell’s due process right to be sentenced based on accurate
information was violated when the district court misapprehended the third
supplemental revocation petition. United States v. Miller, 900 F.3d 509, 514 (7th Cir.
2018). Therefore, we vacate the sentence and remand for plenary resentencing.
Background
In 2005, Bell was sentenced to 169 months’ imprisonment and 6 years’ supervised
release for distributing cocaine base. He began serving his supervised release in 2018,
but after he violated the conditions, the district court revoked his release and sentenced
him to 33 more months in prison and 3 more years’ supervised release. About halfway
through the prison term, the court granted Bell’s motion for compassionate release,
18 U.S.C. § 3852(c)(1)(A), and he commenced another term of supervised release.
About a month-and-a-half into that stint, the probation office petitioned for
revocation, alleging that Bell violated multiple conditions: he tested positive for
marijuana, did not attend required therapy, and failed 13 times to complete a biometric
check-in on his cell phone. A few weeks later, Bell’s probation officer filed a
supplemental petition alleging that Bell failed to complete another seven biometric
check-ins. A month after that, Bell’s probation officer filed a second supplemental
petition, alleging that Bell tested positive for cocaine and he failed to complete another
four biometric check-ins. Finally, and most relevant here, a third supplemental petition
alleged that Bell violated an active order of protection restricting him from contact with
an acquaintance, Michael Harvey, thereby violating the mandatory condition that he
not commit another federal, state, or local crime. The order of protection had been
issued based on an allegation that Bell harassed Harvey at his workplace and home and
dealt drugs “around” Harvey’s two sons. About two months later, state authorities
No. 21-1819 Page 3
charged Bell with violating that order by speaking to one of the sons while the child
rode a bike and by contacting the child online.
Bell, still subject to a state prosecution, waived a contested revocation hearing.
The district court verified that Bell knew the rights he was waiving and that he was
doing so knowingly and voluntarily. It confirmed Bell’s admission that the government
could prove the conduct alleged in the third supplemental petition, adopted the
petition’s factual allegations as its findings, and revoked Bell’s supervised release.
In considering an appropriate sentence, the district court first applied the
Chapter Seven policy statements to calculate Bell’s reimprisonment range under the
Sentencing Guidelines. The court determined, and the parties agreed, that Bell’s range
was 21 to 27 months. The court then heard the parties’ arguments. The government
pointed out that Bell had squandered multiple opportunities for relief from
imprisonment by violating the conditions of supervised release, including by breaching
the no-contact order. Bell’s attorney asked for leniency because Bell, having spent a
substantial period of his life behind bars, was still learning how to be a productive
member of society. Counsel explained that Bell’s violation of the no-contact order arose
from his “involvement with a woman and her husband” amid an interpersonal dispute.
Neither party discussed drug dealing “to” children, which was not alleged in the third
supplemental petition.
The district court assessed the 18 U.S.C. § 3553(a) factors, focusing on the nature
and circumstances of the offense and Bell’s history and characteristics. It summarized
Bell’s history of failing to complete biometric check-ins and missed therapy
appointments. The court then detailed Bell’s struggles with substance abuse before
turning to the conduct that led to a misdemeanor charge in Illinois for violating the no-
contact order:
The petition alleged you were harassing Mr. Harvey and dealing drugs to his
two sons. On November 13 of 2020 an officer spoke with Mr. Harvey and his
[son] who is 13. The child told the officer you attempted to stop him while he
rode his bike near his home. He went home and told his father. … Mr. Harvey
told the police officer you had been communicating with the child by Facebook
for several weeks.
The court recognized Bell’s difficulties in adjusting to life outside of prison but found
that prison time was necessary to address the frequency and sheer number of Bell’s
No. 21-1819 Page 4
serial violations—more than any other defendant in the court’s 30-year experience—as
well as the difficulty his intransigence caused in monitoring him. So, the court
sentenced Bell to 27 months in prison followed by 33 months’ supervised release.
Discussion
Bell argues on appeal that he was given a longer reimprisonment term because
the district court misunderstood how he violated the no-contact order. Specifically, Bell
argues that “nothing in that [state] case was about me selling kids drugs.” Though Bell
did not object to the misstatement at the time, we do not require an objection to a
court’s explanation of its sentence in order to preserve an appellate argument. Further,
Bell had no opportunity to interject before the court imposed his sentence and did not
need to take exception after the court sentenced him. United States v. Pennington, 908
F.3d 234, 238 (7th Cir. 2018); FED. R. CRIM. P. 51(a). Therefore, there was no forfeiture,
and we apply de novo review. Pennington, 908 F.3d at 238.
Bell had a due-process right to be sentenced based on accurate information.
United States v. Tucker, 404 U.S. 443, 447 (1972); Miller, 900 F.3d at 513. To show a
deprivation of due process, Bell must demonstrate that the court relied on materially
inaccurate information. Promotor v. Pollard, 628 F.3d 878, 888 (7th Cir. 2010). Reliance
means that the court gave “explicit attention” or “specific consideration to the
misinformation before imposing sentence.” Miller, 900 F.3d at 513 (quotation and
citation omitted).
At the revocation hearing, Bell admitted the government could prove, by a
preponderance of the evidence, the third supplemental petition’s allegations. Thus, he
admitted an order of protection was issued based on the allegation that he harassed
Harvey and “dealt drugs around” (emphasis added) Harvey’s two children. He also
admitted he violated the order by trying to interact in person and online with one of
those children.
There is some ambiguity about whether the district court was referring to the
third supplemental revocation petition when it said “the petition alleged you were …
dealing drugs to his two sons.” But even if the court meant the state-court petition for a
protective order—which is in some doubt, as that document is not in the record and
was not otherwise mentioned at the revocation hearing—Bell was never accused in state
court of dealing drugs to his neighbor’s children. And the third supplemental
No. 21-1819 Page 5
revocation petition alleged only that Bell committed a state misdemeanor offense by
contacting the child.
Either way, the district court expressly mentioned the unsavory notion that Bell
was dealing drugs “to” children as a consideration for the sentence. That information is
not supported by the record, as there is a material difference between dealing drugs
“to” children and dealing drugs “around” them. A factual error of this magnitude
deprived Bell of his right to be sentenced based on accurate information. See Miller,
900 F.3d at 513; United States v. Feterick, 872 F.3d 822, 824 (7th Cir. 2017); United States v.
Corona-Gonzalez, 628 F.3d 336, 342–43 (7th Cir. 2010).
Further, while the inaccurate information was mentioned as one of a number of
factors for the sentence—primarily Bell’s numerous supervision violations—we are not
comfortable concluding that the district court’s consideration of the inaccurate
information was harmless. See Pennington, 908 F.3d at 240 (written explanation
demonstrated that erroneous oral explanation did not affect sentence). The idea of
selling drugs to children is inflammatory, and the district court expressly mentioned it.
That conduct is relevant to multiple factors under 18 U.S.C. § 3553(a), including Bell’s
history and characteristics, the severity of his behavior, and the need to protect the
public from him. So, although the court noted that the sentence it chose was based on
Bell’s many violations, Bell need not show that the inaccurate information was the sole
basis for the sentence. Miller, 900 F.3d at 513.
In the traditional Anders context, if we identify a nonfrivolous issue, we typically
direct counsel, or appoint new counsel, to submit a merits brief. Eskridge, 445 F.3d at931–32. But when there is no constitutional right to an appointed attorney, we are free
to address the merits without implicating any Sixth Amendment concern. See id. at 933.
We do not see a need for additional briefing here given that we are satisfied there was
an error and Bell is not constitutionally entitled to appellate counsel. See id. at 935.
Moreover, the relatively short sentence counsels against making him await full briefing
and argument.
Accordingly, we DENY counsel’s motion to withdraw because we disagree with
its premise that this appeal is frivolous. Bell’s sentence is VACATED, and the case is
REMANDED for resentencing (at which time Bell has a statutory right to counsel under
18 U.S.C. § 3006A(a)(1)(E) if he is indigent).