                                                                              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         This order and judgment is not binding precedent, except under the doctrines of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

                                              -3-
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.

                                                -4-
       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


                                             -5-
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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