# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

Submitted May 9, 2019

Decided May 9, 2019

Before

J OEL M. FLAUM, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

MICHAEL Y. SCUDDER, Circuit Judge

No. 18-3674

UNITED STATES OF AMERICA, Plaintiff-Appellee

,

v

.

MINTAI BEDFORD, Defendant-Appellant

. Appeal from the United States District

Court for the Southern District of Illinois.

No. 3:09-CR-30084-SMY-1

Staci M. Yandle,
J udge

.

O R D E R

Mintai Bedford violated the conditions of his supervised release when he called the police and threatened that a shootin g would occur at the college he was attending—an act later deemed a terrorist thre at in violation of Illinois law. 720 ILCS 5/29D-20(a). His supervised release was revo ked, and he was sentenced to 47 months and 29 days in prison. Bedford filed a noti ce of appeal, but his appointed counsel asserts that the appeal is fr ivolous and moves to withdraw. See Anders v. California

, 386 U.S. 738 (1967). Bedford responded to counsel’s motion. See C IR

. 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 For appeals of a revocation decision, our practice has been to NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with Fed. R. A pp . P. 32.1No. 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. Becaus e the analysis appears thorough, we limit our review to the subjects that counsel discusses and those that Bedford raises in response.

See C IR . R. 51(b); United States v. Bey , 748 F.3d 774, 776 (7th Cir. 2014).

Counsel and Bedford both consider whet her he could challenge the district court’s finding that he made a terrorist th reat, 720 ILCS 5/29D-20(a), thereby violating the supervised-release condition that he no t 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 ri sk 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 presen ted 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 playin g a recording of the call for the court, the government offered testimony from a Madiso n 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 th e call’s location to his apartment complex. The government also introduced evidence th at Bedford had called his probation officer
from the same number, that Bedford’s moth er had listed the number in her phone as
“son,” and that Bedford had se nt several text messages from another phone identifying
the blocked number as his. Further, the dist rict court reasonably could infer Bedford’s intent to intimidate people from “the ci rcumstances 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 disp osition 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 opinio n 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 be cause it increases the statutory minimum penalty to which a defendant may be subjecte d 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 sent ence; he was sentenced under § 3583(e)(3), which merely authorizes a court to im pose a term of imprisonment for a supervised-release violation and does so ba sed 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 impose d after the revocation of supervised release).

Counsel next contemplates challenging th e district court’s calculation of the policy-statement range. Without any objectio n 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—po ssessing with intent to distribute 280 or more grams of cocaine base—allows for a ma ximum life sentence, 21 U.S.C. § 841(a)(1), (b)(1)(A)(iii), so any challenge based on a vi olation 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. Bu t 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 co ncludes that doing so would be futile. The district court sufficiently justified the se ntence based on the factors in 18 U.S.C. § 3553(a), specifically, the nature and circ umstances of the violation (noting the seriousness of threatening a school shootin g); Bedford’s history and characteristics (highlighting his violent history, includin g 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.