United States v. Terry Bridgewater

Case: 17-10039 Document: 00514258755 Page: 1 Date Filed: 12/04/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fif h Circuit
No. 17-10039 FILED
Summary Calendar December 4, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
TERRY BRIDGEWATER,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:15-CR-524-1
Before REAVLEY, PRADO, and GRAVES, Circuit Judges.
PER CURIAM: *
Terry Bridgewater pleaded guilty to a single count of being a felon in
possession of a firearm and was sentenced to a total of 98 months in prison.
The district court ordered the instant sentence to be served consecutively to
the undischarged state sentences imposed after his conviction for three counts
of burglary of a building. He appeals his sentence.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 17-10039
Bridgewater argues that the district court reversibly erred by assessing
three criminal history points for one of the state convictions of burglary of a
building. He notes that the offense was treated as relevant conduct under
U.S.S.G. § 1B1.3, and, therefore, it could not be used to determine his criminal
history score. Because Bridgewater did not assert this argument in the district
court, our review is for plain error. See United States v. Henry, 288 F.3d 657,
664 (5th Cir. 2002).
The record supports that the district court committed a clear or obvious
error by assigning criminal history points for a sentence imposed for an offense
that was found to be relevant conduct. See U.S.S.G. § 4A1.2(a)(1) & comment.
(n.1); United States v. Cade, 279 F.3d 265, 269, 272 (5th Cir. 2002). However,
Bridgewater cannot demonstrate that the error affected his substantial rights.
See Puckett v. United States, 556 U.S. 129, 135 (2009). He nonetheless would
have received three criminal history points based on the related sentences for
his convictions for two other counts for burglary of a building; the sentences
for those offenses could be used to calculate his criminal history score because
they were not found to constitute relevant conduct. See U.S.S.G. §§ 4A1.1(a),
4A1.2(a)(1), (a)(2) & comment. (n.1). To the extent that Bridgewater seeks to
contest the district court’s relevant conduct finding for the first time on appeal,
he cannot demonstrate that the factual determination was plainly erroneous.
See United States v. Hinojosa, 484 F.3d 337, 340 (5th Cir. 2007). Because he
would have been sentenced under the same guidelines range, and there is no
indication that, but for the district court’s error, he likely would have received
a lesser sentence, Bridgewater has failed to show reversible plain error. See
United States v. Garcia-Gonzalez, 714 F.3d 306, 317 (5th Cir. 2013); United
States v. Mudekunye, 646 F.3d 281, 289 (5th Cir. 2011).
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No. 17-10039
Bridgewater also argues that the district court wrongly applied U.S.S.G.
§ 5G1.3(d), rather than § 5G1.3(b), and incorrectly ordered his instant sentence
to run consecutively to the undischarged sentences for his burglary offenses.
He maintains that the district court misconstrued the Guidelines as to whether
concurrent sentences should be imposed under § 5G1.3(b) where at least one
prior state offense is found to be relevant conduct and incorrectly believed that
it was required to impose consecutive sentences. We need not decide whether
Bridgewater adequately preserved his appellate arguments because he has not
shown that the district court erred, much less plainly erred, in its application
and construction of § 5G1.3. See United States v. Rodriguez, 523 F.3d 519, 525
(5th Cir. 2008).
The record indicates that the district court’s application of § 5G1.3(d) in
these circumstances was consistent with the express language of the guideline
and its commentary. See § 5G1.3 & comment. (nn.2(A) & 4(D)). Bridgewater
contends that, even if the district court correctly determined that § 5G1.3(d)
applied, it wrongly believed that the provision required consecutive sentences.
His claim is belied by the record. The record reflects that the district court
understood that it had the discretion under § 5G1.3(d) to run the instant
sentence partially concurrently or concurrently to the undischarged sentences
and that it exercised its discretion to impose consecutive sentences in an effort
to fashion the sentence that it thought was appropriate and reasonable based
on relevant sentencing factors. See § 5G1.3(d).
Accordingly, the judgment of the district court is AFFIRMED.
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