                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                               JUNE 24, 2009
                               No. 07-15178                  THOMAS K. KAHN
                         ________________________                CLERK


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

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

ANTHONY ALEXANDER BRIDGEWATER,



                                                            Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                      for the Northern District of Florida
                        _________________________

                                (June 24, 2009)

Before WILSON, KRAVITCH and ANDERSON, Circuit Judges.

PER CURIAM:

     Anthony Alexander Bridgewater appeals the district court’s denial of his
motion to suppress evidence seized during his arrest and his mandatory life

sentence imposed based on two prior felony drug offenses. For the reasons below,

we conclude that the district court did not err by denying Bridgewater’s motion to

suppress. Thus, we affirm his convictions. We vacate his sentence, however,

because the district court failed to require that the government prove by a

preponderance of the evidence that he qualified for a mandatory life sentence.

                                  I. B ACKGROUND

A.    Arrest and Trial

      The police suspected that Bridgewater was involved in a conspiracy to sell

drugs because of his numerous cell phone conversations with other suspected drug

dealers and his prior convictions for selling drugs. On March 26, 2007, police

officers observed Bridgewater driving a rented white Chevrolet Impala. They then

saw the Impala parked in front of what they believed to be Bridgewater’s house.

      The police officers arrived early in the morning on April 5, 2007 at that

address to execute a state arrest warrant for Bridgewater. They again saw the

Impala parked in the driveway. They saw no one entering or exiting during the 1.5

hours they spent observing the house. Nor did they observe any movement within

the house. The officers knocked on the door several times and rang the doorbell

but received no response. Nor did they receive a response when they called



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Bridgewater’s cell phone.

      Officer Jeffery Watkins went to the rear of the house; opened the sliding

glass door; saw a certificate with Bridgewater’s name on it; and detected marijuana

odor. He called for backup. He and the other officers then forced entry into the

house at about 7:00 A.M.

      After being arrested, Bridgewater consented to a search of his house. He

was tried and convicted of conspiracy to distribute and possess with intent to

distribute 1,000 kilograms or more of marijuana and 5 kilograms or more of

cocaine, pursuant to 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(ii), 841(b)(1)(A)(vii),

and 846 (Count 1); possession with intent to distribute 5 kilograms or more of

cocaine, pursuant to 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(ii), and 18 U.S.C. § 2

(Count 2); possession with intent to distribute 100 kilograms or more of marijuana,

pursuant to 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(vii), and 18 U.S.C. § 2 (Count 3);

and, possession of a firearm by a convicted felon, pursuant to 18 U.S.C. §

922(g)(1) (Count 4).

B.    Sentencing

      At Bridgewater’s sentencing hearing, the parties agreed that, on December

10, 1992, Bridgewater made two sales of cocaine base 36 minutes apart to an

undercover officer. The probation officer concluded that the mandatory life



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sentence provided by 21 U.S.C. § 841(b)(1)(A)(viii) did not apply because the two

sales constituted one prior felony drug conviction.

      The district court found, however, that the two sales constituted two separate

qualifying convictions. The court accordingly sentenced Bridgewater to the

mandatory minimum sentence of life imprisonment for Counts 1 and 2 and 438

months of imprisonment on Counts 3 and 4.

      Bridgewater appeals his convictions and life sentence.

                                   II. D ISCUSSION

      We first discuss Bridgewater’s motion to suppress. Then we discuss his life

sentence.

A.    Bridgewater’s Motion to Suppress

      Bridgewater challenges his convictions, arguing that the district court erred

by denying his motion to suppress. He argues that the court clearly erred by

finding that the officers executing the arrest warrant had a reasonable belief that he

was inside his house at the time of entry. We disagree.

      “In reviewing a district court’s ruling on a motion to suppress evidence, we

review factual findings for clear error and the court’s application of law to those

facts de novo.” United States v. Goddard, 312 F.3d 1360, 1362 (11th Cir. 2002).

“[F]or Fourth Amendment purposes, an arrest warrant founded on probable cause



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implicitly carries with it the limited authority to enter a dwelling in which the

suspect lives when there is reason to believe the suspect is within.” Payton v. New

York, 445 U.S. 573, 603 (1980). “Payton thus requires a two-part inquiry: first,

there must be a reasonable belief that the location to be searched is the suspect’s

dwelling, and second, the police must have ‘reason to believe’ that the suspect is

within the dwelling.” United States v. Magluta, 44 F.3d 1530, 1533 (11th Cir.

1995). “[O]fficers may presume that a person is at home at certain times of the day

— a presumption which can be rebutted by contrary evidence regarding the

suspect’s known schedule.” Id. at 1535.

      Bridgewater concedes that only the second Payton inquiry is at issue here.

He argues that the only evidence that the officers had that he was inside his house

was that a car he was seen driving once a week earlier, but not positively identified

as belonging to him, was parked outside the house. He notes that the officers

repeatedly knocked on the door and rang the doorbell, called his cell phone, and

observed his home for an hour and a half without detecting any activity. This

evidence, he argues, rebuts any presumption that he was inside the house.

      The officers reasonably believed, however, that Bridgewater was inside his

home at the time of their entry. First, the Impala was parked in front of

Bridgewater’s house on the morning of the arrest. The Impala’s presence suggests



                                           5
that Bridgewater was inside the house. See United States v. Beck, 729 F.2d 1329,

1331–32 (11th Cir. 1984) (per curiam). Second, Officer Watkins arrived at

Bridgewater’s house at 7:00 A.M. Early morning police entry weighs in favor of

finding that the officers reasonably believed that Bridgewater was inside the house.

Id.

      Finally, just because Officer Watkins observed no movement within the

house after he knocked or while he waited for backup officers to arrive did not

mean that the officers could not reasonably believe that Bridgewater was inside.

The officers could reasonably expect Bridgewater to hide inside if he could. Id. at

1332. Therefore, the district court did not clearly err by finding that, at the time of

entry, the officers reasonably believed that Bridgewater was inside the house or by

denying his motion to suppress.

      We affirm Bridgewater’s convictions.

B.    Bridgewater’s Life Sentence

      “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)(viii) provides a mandatory life term of

imprisonment for a defendant who was previously convicted of two or more felony



                                           6
drug offenses. 21 U.S.C. § 841(b)(1)(A)(viii). “[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. Treating them as such “is consistent with our interpretations of other

sentencing enhancement statutes, particularly . . . 18 U.S.C. § 924(e),” the Armed

Career Criminal Act (“ACCA”). Id. at 605 n.7.

      In the context of ACCA, “the ‘successful’ completion of one crime plus a

subsequent conscious decision to commit another crime makes that second crime

distinct from the first . . . . [S]o long as predicate crimes are successive rather than

simultaneous, they constitute separate criminal episodes . . . .” United States v.

Pope, 132 F.3d 684, 692 (11th Cir. 1998). The crimes are successive if there were

a “successful completion of one crime plus a subsequent decision to commit

another crime.” Id.

      The district court determines whether the offenses are successive or

simultaneous by “examin[ing] the underlying facts.” United States v. Richardson,

230 F.3d 1297, 1300 (11th Cir. 2000) (per curiam). “The Government bears the

burden of establishing by a preponderance of the evidence the facts necessary to

support a sentencing enhancement. It is the district court’s duty to ensure that the

Government carries this burden by establishing a sufficient and reliable basis for



                                            7
its request for an enhancement.” United States v. Askew, 193 F.3d 1181, 1183

(11th Cir. 1999) (citations omitted). That burden

             does not relieve the sentencing court of the duty of
             exercising the critical fact-finding function that has
             always been inherent in the sentencing process. . . . The
             standard signifies a recognition of the fact that if the
             probation officer and the prosecutor believe that the
             circumstances of the offense, the defendant’s role in the
             offense, or other pertinent aggravating circumstances,
             merit a lengthier sentence, they must be prepared to
             establish that pertinent information by evidence adequate
             to satisfy the judicial skepticism aroused by the lengthier
             sentence that the proffered information would require the
             district court to impose.

United States v. Lawrence, 47 F.3d 1559, 1567 (11th Cir. 1995) (brackets omitted)

(quoting United States v. Wise, 976 F.2d 393, 402–03 (8th Cir. 1992)).

      The district court’s factual findings based on an incorrect burden of proof

are not protected by clear error review. See Inwood Labs. v. Ives Labs., 456 U.S.

844, 855 n.15 (1982) (citing United States v. Singer Mfg. Co., 374 U.S. 174, 194

n.9 (1963) (“[I]f the trial court bases its findings upon a mistaken impression of

applicable legal principles, the reviewing court is not bound by the clearly

erroneous standard.”).

      At his sentencing hearing, Bridgewater asserted that his two cocaine sales,

which occurred 36 minutes apart, should be treated as one criminal episode. The

district court disagreed. It found that the two cocaine sales were distinct in time

                                           8
and that Bridgewater had a meaningful opportunity to decide consciously not to

make the second sale.

       In so finding, however, the district court overlooked the applicable burden of

proof. It failed to hold the government to its burden to prove by a preponderance

of the evidence that the two sales were successive rather than simultaneous. The

government failed to present at the sentencing hearing any evidence regarding

what occurred during the 36-minute interval between Bridgewater’s two cocaine

sales. Instead, the government primarily relied on our prior decisions to argue that,

in those 36 minutes, Bridgewater had a meaningful opportunity to cease and desist.

See Pope, 132 F.3d at 689–90.

       The evidence presented at the sentencing hearing merely indicated that both

sales involved the same substance, officer, and location. Without any evidence of

what occurred during the 36 minutes between the sales, we cannot determine

whether the sales were successive or simultaneous. The district court agreed with

the government that Bridgewater could have decided in that interval not to make

the second sale. But it is equally plausible, based on the minimal evidence

presented, that the undercover officer never left Bridgewater’s presence between

the two cocaine sales. It is also equally plausible that, at the time of the first sale,

Bridgewater did not have the full amount of cocaine requested by the undercover



                                             9
officer and that he returned 36 minutes later with the remaining amount. Thus, the

government has not met its burden to prove by a preponderance of the evidence

that Bridgewater qualified for a life sentence under 21 U.S.C. § 841(b)(1)(A)(viii)

based on two successive cocaine sales.

                                 III. C ONCLUSION

      The district court did not clearly err by determining that at the time of entry,

the officers reasonably believed that Bridgewater was inside his house. It erred,

however, by not holding the government to its burden to prove by a preponderance

of the evidence that Bridgewater qualified for a life sentence under 21 U.S.C. §

841(b)(1)(A)(viii). Accordingly, we AFFIRM Bridgewater’s convictions,

VACATE his life sentence, and REMAND for proceedings consistent with this

opinion.




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