United States v. Thomas A. Bridge ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-4076
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Thomas A. Bridge, *
* [PUBLISHED]
Appellant. *
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Submitted: July 7, 2004
Filed: July 28, 2004
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Before MELLOY, HANSEN, and COLLOTON, Circuit Judges.
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PER CURIAM.
Thomas A. Bridge appeals the sentence the district court1 imposed after he
pleaded guilty to conspiring to distribute and possess with intent to distribute 500
grams or more of methamphetamine, in violation of 21 U.S.C. § 846. We affirm.
At sentencing, the district court assigned 1 criminal history point to each of
Bridge’s two prior convictions for possession of drug paraphernalia, raising his point
total to 4 and placing him in criminal history Category III. Bridge argues that the
1
The Honorable Richard G. Kopf, Chief Judge, United States District Court for
the District of Nebraska.
court clearly erred in assessing these criminal history points because the offense is
similar to those listed in U.S.S.G. § 4A1.2(c). We, however, have recently
determined that possession of drug paraphernalia is not similar to the category of
offenses listed as excepted in section 4A1.2(c)(1). See United States v. Hatch, 94
Fed. Appx. 427, 429 (8th Cir. 2004) (unpublished per curiam); see also United States
v. Moore, 245 F.3d 1023, 1025 (8th Cir. 2001). And we now conclude that it is not
similar to the category of offenses listed in section 4A1.2(c)(2), because (1)
possession of drug paraphernalia is an offense of prohibitions, cf. United States v.
Webb, 218 F.3d 877, 881 (8th Cir. 2000) (conviction for being minor in possession
of alcohol represented violation of specific liquor control law, rather than being
merely reflective of status crime, and as “offense of prohibitions,” it did not belong
to category of offenses listed in section 4A1.2(c)(2)), cert. denied, 531 U.S. 1131
(2001); and (2) under Nebraska law, this offense requires proof of criminal intent, see
Neb. Rev. Stat. Ann. § 28-441 (Michie 2003) (“unlawful for any person to use, or to
possess with intent to use, drug paraphernalia to manufacture, inject, ingest, inhale,
or otherwise introduce into the human body a controlled substance” (emphasis
added)); cf. United States v. Sandoval, 152 F.3d 1190, 1192 (9th Cir.1998) (“Unlike
the offenses listed in U.S.S.G. § 4A1.2(c)(2), petty theft requires proof of criminal
intent.”), cert. denied, 525 U.S. 1086 (1999).
We also reject Bridge’s argument that, because these were uncounseled
convictions, the district court erred in assigning criminal history points. Cf. U.S.S.G.
§ 4A1.2 comment. (background) (“Prior sentences, not otherwise excluded, are to be
counted in the criminal history score, including uncounseled misdemeanor sentences
where imprisonment was not imposed.”).
Accordingly, we affirm the judgment of the district court.
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