United States v. Bridges ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4248
JOHN G. BRIDGES,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of West Virginia, at Clarksburg.
Irene M. Keeley, District Judge.
(CR-95-21)
Submitted: June 24, 1997
Decided: August 6, 1997
Before WILKINS and MOTZ, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
Bader C. Giggenbach, WILLIAM C. BREWER ATTORNEYS AT
LAW, Morgantown, West Virginia, for Appellant. William D. Wil-
moth, United States Attorney, Thomas O. Mucklow, Assistant United
States Attorney, Wheeling, West Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
John Bridges appeals from his sentence. Bridges pled guilty to dis-
tributing crack cocaine within 1,000 feet of a school in violation of
21 U.S.C. §§ 841(a)(1), 860 (1994). The sentencing court classified
Bridges as a career offender pursuant to United States Sentencing
Commission, Guidelines Manual, § 4B1.1 (Nov. 1995). With an
offense level of thirty-one and a Criminal History Category VI, his
guideline range was 188 to 235 months. The court sentenced him to
188 months incarceration with five years of supervised release. Brid-
ges timely appeals.
The Government's evidence established that Bridges was a street-
level drug dealer and had been selling drugs since 1989. In 1990,
Bridges pled guilty to a state charge of delivering a controlled sub-
stance. The state court placed him on probation for three years with
a condition that one year be served in jail with credit allowed for time
served. In 1992, while on probation for his state sentence, Bridges
pled guilty to a federal charge of distributing crack cocaine within
1,000 feet of a school. The federal court sentenced him to nineteen
months incarceration followed by twelve years of supervised release.
In March and April 1995, while on supervised release for the 1992
federal conviction, Bridges sold crack cocaine to a confidential infor-
mant on three different occasions within 1,000 feet of a school. Brid-
ges pled guilty to one of the drug sales. Because of his two prior drug
felony convictions, the presentence report classified Bridges as a
career offender. Bridges objected to the classification. The court
denied his objections and sentenced him to the low end of his guide-
line range.
On appeal, Bridges claims that the court erred in classifying him
as a career offender because: (1) he committed the instant felony, as
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well as his two prior felonies, pursuant to the common scheme or plan
of supporting his drug addiction; (2) the enhancement constitutes
cruel and unusual punishment; and (3) his classification overstates the
seriousness of his criminal history and he was entitled to a downward
departure.
Bridges initially contends that the instant offense and his two prior
convictions constitute one single offense because they are part of the
single common scheme or plan of supporting his drug addiction. Brid-
ges meets the definition of a career offender pursuant to U.S.S.G.
§ 4B1.1, because he was at least eighteen years old at the time of the
instant offense, which is a controlled substance offense, and he has
two prior felony convictions that were controlled substance offenses.
See United States v. Rivers, 929 F.2d 136, 141 (4th Cir. 1991). "The
fact that [all three] offenses were committed to support one drug habit
does not make the offenses related under § 4A1.2." Id. at 140. Shared
motivation cannot transform Bridges's two prior convictions into one
illicit act. See United States v. Sanders, 954 F.2d 227, 232 (4th Cir.
1992). Bridges's claim that Rivers and Sanders are distinguishable
from the instant case because they involve crimes of violence is
meritless. The guideline that specifies the requirements for career
offender status, U.S.S.G. § 4B1.1, applies to both violent and con-
trolled substance offenses.
Bridges next claims that his classification as a career offender con-
stitutes cruel and unusual punishment because his sentence of 188
months was excessive when his relevant conduct for the instant
offense was only 2.9 grams of cocaine base and his prior felony con-
victions contained minimal amounts of drugs. As the Government
asserts, the Eighth Amendment does not require proportionality
review for a sentence that is less than life without parole. See United
States v. LaRouche, 896 F.2d 815, 831-32 (4th Cir. 1990). Severe,
mandatory penalties may be cruel but they are not unusual. See
Harmelin v. Michigan, 501 U.S. 957, 994-95 (1991). Therefore, a
sentence within statutory limits may not be disturbed on appeal on
Eighth Amendment grounds unless the district court grossly abused
its discretion. See LaRouche, 896 F.2d at 832. The record reveals that
the court considered the amount of drugs involved in Bridges's
offenses before sentencing him. Bridges's Eighth Amendment argu-
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ment fails because his sentence was within the statutory limits and the
district court did not abuse its discretion in sentencing him.
Lastly, Bridges alleges that his classification overstates the serious-
ness of his criminal history and he was entitled to a downward depar-
ture. Bridges contends that the court misconstrued its authority to
depart downward from Bridges's guideline range based on his two
prior felony convictions which involved minimal amounts of drugs
and his history of non-violence. A district court's decision not to
depart from the sentencing guidelines is not subject to appellate
review unless the refusal to depart is based on the mistaken belief that
it lacked the authority to depart. See United States v. Bayerle, 898
F.2d 28, 30-31 (4th Cir. 1990).
Bridges requested the court to depart from the career offender
guidelines because his case was atypical under United States v.
Adkins, 937 F.2d 947 (4th Cir. 1991). A court may, in an atypical
case, depart downward where career offender status overstates the
seriousness of the defendant's past conduct. See id. at 952; U.S.S.G.
§ 4A1.3. Thus, the sentencing judge in this case had the discretion to
depart downward from Bridges's guideline range, which was based
on his career offender status. However, such departures are reserved
for "the truly unusual case." Adkins, 937 F.2d at 952. In United States
v. Brown, 23 F.3d 839, 841-42 (4th Cir. 1994), this court overturned
a district court's grant of a downward departure from career offender
status that was based on the minimal amount of drugs involved in one
of the defendant's prior convictions. In overturning the departure, this
court reasoned that the Sentencing Commission adequately consid-
ered drug quantity in formulating the career offender guidelines. Id.
at 842. The sentencing judge in this case had the discretion to depart
downward from Bridges's career offender status, but was discouraged
from exercising that discretion. Therefore, the judge's comment that
she had "little discretion under the guidelines" reflects that she was
aware of her discretion to depart downward, but was not presented
with "the truly unusual case" providing the basis to exercise that dis-
cretion. Adkins, 937 F.2d at 952. Because the sentencing judge was
not mistaken as to her authority to depart, we decline to review her
decision not to depart. Bayerle, 898 F.2d at 30-31.
Accordingly, we affirm Bridges's sentence. We dispense with oral
argument because the facts and legal contentions are adequately pres-
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ented in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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