United States v. Anthony Alexander Bridgewater ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 24, 2009
No. 07-15178 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 07-00058-CR-3-MCR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTHONY ALEXANDER BRIDGEWATER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(June 24, 2009)
Before WILSON, KRAVITCH and ANDERSON, Circuit Judges.
PER CURIAM:
Anthony Alexander Bridgewater appeals the district court’s denial of his
motion to suppress evidence seized during his arrest and his mandatory life
sentence imposed based on two prior felony drug offenses. For the reasons below,
we conclude that the district court did not err by denying Bridgewater’s motion to
suppress. Thus, we affirm his convictions. We vacate his sentence, however,
because the district court failed to require that the government prove by a
preponderance of the evidence that he qualified for a mandatory life sentence.
I. B ACKGROUND
A. Arrest and Trial
The police suspected that Bridgewater was involved in a conspiracy to sell
drugs because of his numerous cell phone conversations with other suspected drug
dealers and his prior convictions for selling drugs. On March 26, 2007, police
officers observed Bridgewater driving a rented white Chevrolet Impala. They then
saw the Impala parked in front of what they believed to be Bridgewater’s house.
The police officers arrived early in the morning on April 5, 2007 at that
address to execute a state arrest warrant for Bridgewater. They again saw the
Impala parked in the driveway. They saw no one entering or exiting during the 1.5
hours they spent observing the house. Nor did they observe any movement within
the house. The officers knocked on the door several times and rang the doorbell
but received no response. Nor did they receive a response when they called
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Bridgewater’s cell phone.
Officer Jeffery Watkins went to the rear of the house; opened the sliding
glass door; saw a certificate with Bridgewater’s name on it; and detected marijuana
odor. He called for backup. He and the other officers then forced entry into the
house at about 7:00 A.M.
After being arrested, Bridgewater consented to a search of his house. He
was tried and convicted of conspiracy to distribute and possess with intent to
distribute 1,000 kilograms or more of marijuana and 5 kilograms or more of
cocaine, pursuant to 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(ii), 841(b)(1)(A)(vii),
and 846 (Count 1); possession with intent to distribute 5 kilograms or more of
cocaine, pursuant to 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(ii), and 18 U.S.C. § 2
(Count 2); possession with intent to distribute 100 kilograms or more of marijuana,
pursuant to 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(vii), and 18 U.S.C. § 2 (Count 3);
and, possession of a firearm by a convicted felon, pursuant to 18 U.S.C. §
922(g)(1) (Count 4).
B. Sentencing
At Bridgewater’s sentencing hearing, the parties agreed that, on December
10, 1992, Bridgewater made two sales of cocaine base 36 minutes apart to an
undercover officer. The probation officer concluded that the mandatory life
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sentence provided by 21 U.S.C. § 841(b)(1)(A)(viii) did not apply because the two
sales constituted one prior felony drug conviction.
The district court found, however, that the two sales constituted two separate
qualifying convictions. The court accordingly sentenced Bridgewater to the
mandatory minimum sentence of life imprisonment for Counts 1 and 2 and 438
months of imprisonment on Counts 3 and 4.
Bridgewater appeals his convictions and life sentence.
II. D ISCUSSION
We first discuss Bridgewater’s motion to suppress. Then we discuss his life
sentence.
A. Bridgewater’s Motion to Suppress
Bridgewater challenges his convictions, arguing that the district court erred
by denying his motion to suppress. He argues that the court clearly erred by
finding that the officers executing the arrest warrant had a reasonable belief that he
was inside his house at the time of entry. We disagree.
“In reviewing a district court’s ruling on a motion to suppress evidence, we
review factual findings for clear error and the court’s application of law to those
facts de novo.” United States v. Goddard, 312 F.3d 1360, 1362 (11th Cir. 2002).
“[F]or Fourth Amendment purposes, an arrest warrant founded on probable cause
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implicitly carries with it the limited authority to enter a dwelling in which the
suspect lives when there is reason to believe the suspect is within.” Payton v. New
York, 445 U.S. 573, 603 (1980). “Payton thus requires a two-part inquiry: first,
there must be a reasonable belief that the location to be searched is the suspect’s
dwelling, and second, the police must have ‘reason to believe’ that the suspect is
within the dwelling.” United States v. Magluta, 44 F.3d 1530, 1533 (11th Cir.
1995). “[O]fficers may presume that a person is at home at certain times of the day
— a presumption which can be rebutted by contrary evidence regarding the
suspect’s known schedule.” Id. at 1535.
Bridgewater concedes that only the second Payton inquiry is at issue here.
He argues that the only evidence that the officers had that he was inside his house
was that a car he was seen driving once a week earlier, but not positively identified
as belonging to him, was parked outside the house. He notes that the officers
repeatedly knocked on the door and rang the doorbell, called his cell phone, and
observed his home for an hour and a half without detecting any activity. This
evidence, he argues, rebuts any presumption that he was inside the house.
The officers reasonably believed, however, that Bridgewater was inside his
home at the time of their entry. First, the Impala was parked in front of
Bridgewater’s house on the morning of the arrest. The Impala’s presence suggests
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that Bridgewater was inside the house. See United States v. Beck, 729 F.2d 1329,
1331–32 (11th Cir. 1984) (per curiam). Second, Officer Watkins arrived at
Bridgewater’s house at 7:00 A.M. Early morning police entry weighs in favor of
finding that the officers reasonably believed that Bridgewater was inside the house.
Id.
Finally, just because Officer Watkins observed no movement within the
house after he knocked or while he waited for backup officers to arrive did not
mean that the officers could not reasonably believe that Bridgewater was inside.
The officers could reasonably expect Bridgewater to hide inside if he could. Id. at
1332. Therefore, the district court did not clearly err by finding that, at the time of
entry, the officers reasonably believed that Bridgewater was inside the house or by
denying his motion to suppress.
We affirm Bridgewater’s convictions.
B. Bridgewater’s Life Sentence
“Because the question of whether prior convictions were related or unrelated
for purposes of section 841(b)(1)(A) involves a factual inquiry, we review the
district court’s decision for clear error.” United States v. Rice, 43 F.3d 601, 606
(11th Cir. 1995). Section 841(b)(1)(A)(viii) provides a mandatory life term of
imprisonment for a defendant who was previously convicted of two or more felony
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drug offenses. 21 U.S.C. § 841(b)(1)(A)(viii). “[I]f the prior convictions resulted
from acts forming a single criminal episode, then they should be treated as a single
conviction for sentence enhancement under section 841(b)(1)(A).” Rice, 43 F.3d at
605. Treating them as such “is consistent with our interpretations of other
sentencing enhancement statutes, particularly . . . 18 U.S.C. § 924(e),” the Armed
Career Criminal Act (“ACCA”). Id. at 605 n.7.
In the context of ACCA, “the ‘successful’ completion of one crime plus a
subsequent conscious decision to commit another crime makes that second crime
distinct from the first . . . . [S]o long as predicate crimes are successive rather than
simultaneous, they constitute separate criminal episodes . . . .” United States v.
Pope, 132 F.3d 684, 692 (11th Cir. 1998). The crimes are successive if there were
a “successful completion of one crime plus a subsequent decision to commit
another crime.” Id.
The district court determines whether the offenses are successive or
simultaneous by “examin[ing] the underlying facts.” United States v. Richardson,
230 F.3d 1297, 1300 (11th Cir. 2000) (per curiam). “The Government bears the
burden of establishing by a preponderance of the evidence the facts necessary to
support a sentencing enhancement. It is the district court’s duty to ensure that the
Government carries this burden by establishing a sufficient and reliable basis for
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its request for an enhancement.” United States v. Askew, 193 F.3d 1181, 1183
(11th Cir. 1999) (citations omitted). That burden
does not relieve the sentencing court of the duty of
exercising the critical fact-finding function that has
always been inherent in the sentencing process. . . . The
standard signifies a recognition of the fact that if the
probation officer and the prosecutor believe that the
circumstances of the offense, the defendant’s role in the
offense, or other pertinent aggravating circumstances,
merit a lengthier sentence, they must be prepared to
establish that pertinent information by evidence adequate
to satisfy the judicial skepticism aroused by the lengthier
sentence that the proffered information would require the
district court to impose.
United States v. Lawrence, 47 F.3d 1559, 1567 (11th Cir. 1995) (brackets omitted)
(quoting United States v. Wise, 976 F.2d 393, 402–03 (8th Cir. 1992)).
The district court’s factual findings based on an incorrect burden of proof
are not protected by clear error review. See Inwood Labs. v. Ives Labs., 456 U.S.
844, 855 n.15 (1982) (citing United States v. Singer Mfg. Co., 374 U.S. 174, 194
n.9 (1963) (“[I]f the trial court bases its findings upon a mistaken impression of
applicable legal principles, the reviewing court is not bound by the clearly
erroneous standard.”).
At his sentencing hearing, Bridgewater asserted that his two cocaine sales,
which occurred 36 minutes apart, should be treated as one criminal episode. The
district court disagreed. It found that the two cocaine sales were distinct in time
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and that Bridgewater had a meaningful opportunity to decide consciously not to
make the second sale.
In so finding, however, the district court overlooked the applicable burden of
proof. It failed to hold the government to its burden to prove by a preponderance
of the evidence that the two sales were successive rather than simultaneous. The
government failed to present at the sentencing hearing any evidence regarding
what occurred during the 36-minute interval between Bridgewater’s two cocaine
sales. Instead, the government primarily relied on our prior decisions to argue that,
in those 36 minutes, Bridgewater had a meaningful opportunity to cease and desist.
See Pope, 132 F.3d at 689–90.
The evidence presented at the sentencing hearing merely indicated that both
sales involved the same substance, officer, and location. Without any evidence of
what occurred during the 36 minutes between the sales, we cannot determine
whether the sales were successive or simultaneous. The district court agreed with
the government that Bridgewater could have decided in that interval not to make
the second sale. But it is equally plausible, based on the minimal evidence
presented, that the undercover officer never left Bridgewater’s presence between
the two cocaine sales. It is also equally plausible that, at the time of the first sale,
Bridgewater did not have the full amount of cocaine requested by the undercover
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officer and that he returned 36 minutes later with the remaining amount. Thus, the
government has not met its burden to prove by a preponderance of the evidence
that Bridgewater qualified for a life sentence under 21 U.S.C. § 841(b)(1)(A)(viii)
based on two successive cocaine sales.
III. C ONCLUSION
The district court did not clearly err by determining that at the time of entry,
the officers reasonably believed that Bridgewater was inside his house. It erred,
however, by not holding the government to its burden to prove by a preponderance
of the evidence that Bridgewater qualified for a life sentence under 21 U.S.C. §
841(b)(1)(A)(viii). Accordingly, we AFFIRM Bridgewater’s convictions,
VACATE his life sentence, and REMAND for proceedings consistent with this
opinion.
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