United States v. Anthony Alexander Bridgewater ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JAN 04, 2011
No. 09-14790 JOHN LEY
CLERK
Non-Argument Calendar
________________________
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
_________________________
(January 4, 2011)
Before BARKETT, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
In a prior appeal, we affirmed Anthony Bridgewater’s convictions but
vacated his sentences because the Government did not prove by a preponderance of
the evidence that two prior felony drug convictions were separate offenses for
purposes of an enhanced sentence under 21 U.S.C. § 841(b)(1)(A). On remand, the
court sentenced Bridgewater to life imprisonment on counts 1 and 2, 438 months
on count 3, and 120 months on count 4, all to run concurrent with each other.
Bridgewater now appeals the reimposition of those sentences, raising four
issues on appeal. For the reasons discussed below, we affirm.
I.
Bridgewater first argues that the district court erroneously permitted the
Government to present additional evidence at his resentencing. This argument,
however, has no merit because the general vacatur in Bridgewater’s prior appeal
allowed for resentencing de novo. See United States v. Martinez, 606 F.3d 1303,
1304 (11th Cir. 2010) (citation omitted) (“[A] general vacatur of a sentence by
default allows for resentencing de novo.”); United States v. Jones, 36 F.3d 1068,
1070 (11th Cir. 1994) (per curiam) (quotation omitted) (“Once a sentence has been
vacated or a finding related to sentencing has been reversed and the case has been
remanded for resentencing, the district court can hear any relevant evidence on that
issue that it could have heard at the first hearing.”). Accordingly, the Government
was allowed to present additional evidence at Bridgewater’s resentencing hearing.
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II.
Bridgewater next argues that the Government failed to establish by a
preponderance of the evidence that Bridgewater qualified for a life sentence under
§ 841(b)(1)(A). Arguing his prior drug convictions were not separate offenses, but
one criminal episode, Bridgewater claims the district court erred in imposing a
mandatory life sentence for counts 1 and 2. “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) provides for a mandatory term of life imprisonment for
a defendant who was previously convicted of two or more felony drug offenses. §
841(b)(1)(A). “[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 (citation omitted).
However, “convictions which occur on different occasions or are otherwise distinct
in time may be considered separate offenses under section 841(b)(1)(A).” Id.
at 608. Thus, convictions are not “related” if they are “separate in time and locale”
and “requir[e] separate planning and execution.” Id.On remand, the Government presented evidence that showed Bridgewater
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successfully completed the first sale of cocaine before he engaged in the second
sale. The two offenses were separate in time, if only by thirty-six minutes. In
Bridgewater’s prior appeal, we vacated and remanded because it was unclear what
happened in the thirty-six minutes between the two cocaine sales. United States v.
Bridgewater, 333 Fed. App’x 470, 474 (11th Cir. 2009). In particular, we thought
it was plausible that the second sale was simply a continuation of the first. Id.On remand, the Government adequately proved that the first transaction was
independent from the second transaction. A deputy who participated in the
investigation of curbside crack cocaine sales in December 1992 testified on
remand. He stated that the undercover officers had $150 to spend on drugs, and
that they were tasked with buying $20–$30 hits of cocaine from as many different
individuals as possible. In the first transaction, the officers purchased $30 of
cocaine from Bridgewater. Those same officers then bought drugs from two
different individuals before making the second purchase from Bridgewater. The
district court also found that in the recording of the second transaction,
Bridgewater asked “you want another 30?” Accordingly, we conclude that the
district court did not clearly err in finding that the two cocaine sales were two
distinct offenses for purposes of § 841(b)(1)(A).
III.
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Third, Bridgewater argues the district court lacked jurisdiction to enhance
his sentence for count 2 because of a defect in the Government’s notice of
enhancement under 21 U.S.C. § 851(a)(1). He thus contends that his sentence on
count 2 should be vacated. We review de novo the adequacy of a § 851 notice of
enhancement. United States v. Ramirez, 501 F.3d 1237, 1239 (11th Cir. 2007) (per
curiam).
In order for a district court to impose an enhanced sentence based on a
defendant’s prior conviction or convictions for a felony drug offense under §
841(b)(1)(A), the government must file an information “stating in writing the
previous convictions to be relied upon.” § 851(a)(1). We require strict compliance
with the procedural and substantive requirements of § 851(a)(1). United States v.
Rutherford, 175 F.3d 899, 904 (11th Cir. 1999). “[U]nless the government strictly
complies, the district court lacks jurisdiction to impose the enhanced sentence.”
Ramirez, 501 F.3d at 1239.
Bridgewater argues the Government failed to comply strictly with the
requirements of § 851(a)(1) because the notice of enhancement referenced only §
841(b)(1)(A)(vii), which was applicable to count 1, but failed to reference §
841(b)(1)(A)(ii), which was applicable to count 2. We disagree. Section 851
requires notice of the prior convictions the government intends to rely upon in
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seeking an enhancement. See § 851(a)(1). It does not require notice of the
particular crimes the government wishes to enhance. The notice of enhancement in
this case correctly identified the defendant’s prior convictions, giving Bridgewater
an opportunity to contest them. Thus, the notice was sufficient for the purposes of
§ 851(a)(1) and did not deprive the district court of jurisdiction to impose an
enhanced sentence on count 2.
IV.
Bridgewater lastly argues he should be resentenced on count 3 because the
district court did not recognize its authority to impose a below-guidelines sentence
based on a policy disagreement with the career-offender guideline. We review de
novo a district court’s conclusions regarding the scope of its authority under the
Sentencing Guidelines. United States v. Figueroa, 199 F.3d 1281, 1282 (11th Cir.
2000) (per curiam). However, sentencing issues raised for the first time on appeal
are reviewed only for plain error. United States v. Gresham, 325 F.3d 1262, 1265
(11th Cir. 2003). Under plain error review, this Court will reverse only if “(1) an
error occurred; (2) the error was plain; (3) it affected [the defendant’s] substantial
rights; and (4) it seriously affected the fairness of the judicial proceedings.” Id.Bridgewater did not argue below that the district court should vary
downward from the career-offender guideline based on a policy disagreement with
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the guideline. Thus, we will review this issue for plain error only. Gresham, 325
F.3d at 1265. Here, Bridgewater cannot show that his substantial rights were
harmed because the district court never indicated that it disagreed with the career-
offender guideline. On the contrary, the court specifically declined to vary
downward from the guidelines range. Instead, it imposed a sentence at the mid-
point of the guidelines range. Accordingly, there is no indication that, even if the
district court erroneously believed it could not vary downward from the guidelines
range, it would have done so in this case. Therefore, Bridgewater failed to
establish plain error, and we affirm on this ground.
AFFIRMED.
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