FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JAN 04, 2011

JOHN LEY

 CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-14790

Non-Argument Calendar

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D. C. Docket No. 07-00058-CR-3-MCR

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ANTHONY ALEXANDER BRIDGEWATER,

Defendant-Appellant.

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Appeal from the United States District Court

for the Northern District of Florida

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(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 careeroffender guideline. On the contrary, the court specifically declined to vary

downward from the guidelines range. Instead, it imposed a sentence at the midpoint 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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