UNPUBLISHED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.

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Affirmed by unpublished per curiam opinion.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. Wilmoth, 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Unpublished opinions are not binding precedent in this circuit.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).

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OPINION

PER CURIAM:

John Bridges appeals from his sentence. Bridges pled guilty to distributing 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. Bridges timely appeals.

The Government's evidence established that Bridges was a streetlevel drug dealer and had been selling drugs since 1989. In 1990,

Bridges pled guilty to a state charge of delivering a controlled substance. 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 informant on three different occasions within 1,000 feet of a school. Bridges 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 guideline 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. Bridges 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 controlled substance offenses.

Bridges next claims that his classification as a career offender constitutes 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 convictions 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 seriousness of his criminal history and he was entitled to a downward departure. 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 considered 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 discretion. 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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