[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 20, 2007
No. 06-15935 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-20114-CR-JEM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERIC BRIDGES,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 20, 2007)
Before BLACK, CARNES and MARCUS, Circuit Judges.
PER CURIAM:
Eric Bridges appeals his sentence of 82 months of imprisonment, imposed
after he pleaded guilty to one count of conspiracy to commit mail and wire fraud,
18 U.S.C. § 1329, three counts of mail fraud, 18 U.S.C. § 1341, and one count of
wire fraud, 18 U.S.C. § 1343. Bridges has been arrested a number of times in his
life, two of which are relevant to this appeal: On May 27, 1995, he was arrested
for assaulting a female. On July 7 of the same year, he was arrested a second time,
again for assaulting a female. Five days later, a North Carolina court sentenced
him to 45 days in jail and two years of probation on each charge, to run
concurrently. In the case before us, the district court counted each charge as a
separate offense, which pushed Bridge over the threshold necessary to qualify for a
Criminal History Category of IV. On appeal, Bridges argues that the government
failed to establish that his two prior state convictions for assault on a female were
separate offenses. We review for clear error a district court’s determination that
prior convictions were not related for purposes of sentencing. United States v.
Hernandez-Martinez, 382 F.3d 1304, 1306 (11th Cir. 2004).
In calculating a defendant’s criminal history score, prior sentences imposed
for related convictions should be counted as one sentence. United States
Sentencing Guidelines Manual § 4A1.2(a)(2) (2005). The relevant application note
reads in pertinent part:
Prior sentences are not considered related if they were for offenses
that were separated by an intervening arrest (i.e., the defendant is
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arrested for the first offense prior to committing the second offense).
Otherwise, prior sentences are considered related if they resulted from
offenses that (A) occurred on the same occasion, (B) were part of a
single common scheme or plan, or (C) were consolidated for trial or
sentencing.
U.S.S.G. § 4A1.2, cmt. (n. 3). As we explained in United States v. Hunter, 323
F.3d 1314, 1322–23 (11th Cir. 2003): “The language of Note 3 is clear. In
determining whether cases are related, the first question is always whether the
underlying offenses are separated by an intervening arrest. This inquiry is
preliminary to any consideration of consolidated sentencing, as reflected by use of
the word ‘otherwise.’” It is clear that Bridges was arrested for the first assault
prior to committing the second. Therefore the cases are not related.
Bridges argues that he only assaulted his girlfriend one time. He explains
that the first arrest was for the assault, and the second arrest was for missing his
court date. We might agree with Bridges that if he struck or threatened his
girlfriend only one time, the fact that he was arrested twice for that assault would
not trigger Note 3’s intervening arrest rule. However, the Presentence
Investigation Report reflects that Bridges was sentenced to two counts of assault on
a female, to run concurrently. We are extremely doubtful that the state court
sentenced Bridges to two counts of assault for striking his girlfriend a single time.
So doubtful, in fact, that it was not clear error for the district court to conclude
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otherwise, absent credible evidence from Bridges to the contrary.
Because there has been an intervening arrest, we need not address the
question of whether the two cases were consolidated for all purposes or only for
sentencing. We also do not address the government’s contention that defendants
should bear the burden of proof on relatedness.
AFFIRMED.
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