United States v. 2006-03-29 | 04-50183 | USA VBRIDGEFORTH | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, No. 04-50183
Plaintiff-Appellee, D.C. No.
v. CR-00-01220-SVW-  02OZINE BRIDGEFORTH,
Defendant-Appellant. OPINION

Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted
February 6, 2006—Pasadena, California
Filed March 29, 2006
Before: Alex Kozinski, Stephen S. Trott, and Carlos T. Bea,
Circuit Judges.
Opinion by Judge Trott
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COUNSEL
Michael Tanaka, Deputy Federal Public Defender, Los Ange-
les, California, for the defendant-appellant.
Suzanne M. Lachelier, Deputy Federal Public Defender, Los
Angeles, California, for the defendant-appellant.
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Monica Knox, Deputy Federal Public Defender, Los Angeles,
California, for the defendant-appellant.
Nancy Kardon, Assistant United States Attorney, Los Ange-
les, California, for the plaintiff-appellee.
OPINION
TROTT, Circuit Judge:
Ozine Bridgeforth was convicted of two counts of distribu-
tion of a controlled substance, in violation of 21 U.S.C.
§ 841(a)(1), and one count of conspiracy to distribute a con-
trolled substance, in violation of 21 U.S.C. § 846. On appeal,
Bridgeforth argues that his right to confrontation was violated
when the district court limited cross-examination of a paid
informant and admitted two out-of-court statements as admis-
sions of a co-conspirator. He argues also that his sentence vio-
lates the Sixth Amendment and that the court erred in
sentencing him as a career offender. We have jurisdiction pur-
suant to 28 U.S.C. § 1291, and we affirm his convictions.
However, because Bridgeforth was improperly sentenced as a
career offender, we vacate his sentence and remand for resen-
tencing.
BACKGROUND
This case arises out of two drug transactions observed and
recorded by agents of the Federal Bureau of Investigation
(FBI). On August 20, 1999, Deshonda Aldridge, a paid infor-
mant for the FBI, drove to the 1800 block of East Pine Street
in Compton, California, to purchase an ounce of crack
cocaine. Aldridge was looking for a man named Steven
Rhodes, with whom she had conducted narcotics transactions
in the past. While Aldridge was unable to find Rhodes, she
did happen upon Ronald Daniels, who offered to sell her the
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crack. Daniels, an apparent middleman, did not have the drugs
that Aldridge requested. Daniels paged his supplier and, when
Bridgeforth showed up on his motorcycle, Daniels told
Aldridge, “There he go right here.” Bridgeforth rode his
motorcycle to the driver’s side of Aldridge’s car while Dan-
iels was leaning on the passenger-side door. Aldridge gave
Daniels $540 for the crack. After Aldridge paid for the drugs,
she claimed that Daniels handed the money to Bridgeforth.
Daniels and Bridgeforth then left Aldridge for a time. A sur-
veillance agent saw Bridgeforth lead Daniels toward the back
of Daniels’s house, from where Daniels returned and gave
Aldridge the crack she had purchased.
The second transaction took place on September 16, 1999.
Aldridge again drove to East Pine Street to purchase drugs
from Daniels. FBI Agent Todd Holliday testified that, about
three minutes before Aldridge’s arrival, Bridgeforth had left
the neighborhood on his motorcycle. When Aldridge arrived
at the scene and initiated the drug transaction, he told her,
“My boy just left.” Daniels asked Aldridge to accompany him
to his supplier to get the drugs, but, when she refused, he left
the area. Bridgeforth then returned and went into Daniels’s
house. Glenn Owens, who identified himself as Daniels’s
uncle, came out of the same house and sold Aldridge four
ounces of crack for $2,100. The jury heard tape recordings
and saw photographs of both drug transactions, although they
never saw Bridgeforth actually touch either the drugs or the
cash, nor did they hear Bridgeforth incriminate himself on the
tape.
When Aldridge had first approached the FBI about becom-
ing a paid informant, she told the FBI agent interviewing her
that she had past experience as a drug courier in Michigan.
Although the agent inferred that Aldridge had worked for a
small-time street hustler, in reality Aldridge had made sub-
stantial amounts of money working for a large-scale heroin
ring. Aldridge also told the FBI that she had ceased her drug
courier activity upon the birth of her daughter; in reality, how-
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ever, Aldridge continued to participate in the heroin ring for
another two years.
Bridgeforth wanted to impeach Aldridge with her alleged
misstatements, arguing that the statements bore on her credi-
bility as a witness. After hearing testimony from the FBI
agent who had interviewed Aldridge, however, the district
court ruled that Bridgeforth could not cross-examine Aldridge
about her statements to the FBI. The court concluded that,
because the FBI agent had never asked Aldridge the details of
her drug courier activity, Aldridge had not lied.
Bridgeforth also requested permission to impeach Aldridge
with evidence of bias stemming from a car crash she had suf-
fered in Nevada prior to Bridgeforth’s trial. Shortly after the
accident, Nevada police had found alcohol, marijuana, and
methamphetamine in Aldridge’s blood, as well as marijuana
and methamphetamine in her purse. At the time of Aldridge’s
testimony, she had not been charged in connection with the
Nevada incident. Bridgeforth asserted that Aldridge might
give biased testimony in order to curry favor with the govern-
ment and avoid prosecution.
The district court initially ruled that, although defense
counsel could ask questions regarding the drugs that Nevada
police had found in Aldridge’s purse and blood after her car
crash, counsel could not inquire about the alcohol or introduce
extrinsic evidence of the drugs. However, the court later indi-
cated that it would admit a stipulation into evidence if
Aldridge denied using drugs on the day of the crash. The
court held also that extrinsic evidence of bias was inadmissi-
ble, reasoning that Bridgeforth had failed to make an adequate
showing of potential bias because an FBI agent had told
Aldridge that the FBI could not help with her problems in
Nevada.
On the witness stand, Aldridge denied that she had ever
used any drug other than marijuana and stated that she had not
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used any drugs the day of her car crash. The court then
allowed defense counsel to read to the jury a stipulation that
Nevada police had found both marijuana and methamphet-
amine in Aldridge’s purse, as well as in her blood.
The jury found Bridgeforth guilty of two counts of distrib-
uting a controlled substance and one count of conspiracy to
distribute a controlled substance. Bridgeforth moved for a
new trial; the district court denied this motion.
During sentencing, the court explored Bridgeforth’s crimi-
nal history. In 1989, Bridgeforth was convicted under Califor-
nia Health and Safety Code section 11351.5 of possessing
cocaine base for sale. In 1995, he was convicted of assault
with a deadly weapon under California Penal Code section
245(a). Section 245(a)(1), assault with a deadly weapon other
than a firearm, is punishable either with a term of two, three,
or four years in state prison, or with a maximum sentence of
one year in county jail. Cal. Penal Code § 245(a)(1). On Sep-
tember 27, 1995, the state court suspended imposition of sen-
tence and placed Bridgeforth on probation. On December 15,
1995, the court terminated probation and imposed a sentence
of 365 days in the county jail. After Bridgeforth was con-
victed in the instant case, he attempted to avoid being sen-
tenced as a career offender by applying to the state court to
have his 1995 conviction declared a misdemeanor. On April
16, 2003, the state court declared Bridgeforth’s section 245(a)
offense a misdemeanor.
Although the Probation Office initially recommended that
Bridgeforth be sentenced as a career offender, it later
amended the Presentence Report and found that, because the
state court had treated Bridgeforth’s 1995 conviction as a mis-
demeanor, the offense did not qualify as a felony crime of
violence under the career offender enhancement. Neverthe-
less, relying on the language of the United States Sentencing
Guidelines (Guidelines), the district court concluded that
Bridgeforth’s 1995 conviction was punishable by a term of
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imprisonment exceeding one year. The district court thus
found that Bridgeforth had been convicted of the requisite two
qualifying felonies and sentenced him as a career offender
under section 4B1.1 of the Guidelines. Because the court sen-
tenced Bridgeforth before the Supreme Court issued United
States v. Booker, 543 U.S. 220 (2005), it treated the Guide-
lines as mandatory. The court sentenced Bridgeforth to 360
months.
DISCUSSION
I The District Court’s Limitations on the Impeachment
of Informant Aldridge Did Not Violate the
Confrontation Clause.
[1] “In all criminal prosecutions, the accused shall enjoy
the right . . . to be confronted with the witnesses against him.”
U.S. Const. amend. VI. However, a defendant is not entitled
to limitless cross-examination. “A limitation on cross exami-
nation ‘does not violate the Confrontation Clause unless it
limits relevant testimony and prejudices the defendant, and
denies the jury sufficient information to appraise the biases
and motivations of the witness.’ ” United States v. Holler, 411
F.3d 1061, 1066 (9th Cir. 2005) (quoting United States v.
Bensimon, 172 F.3d 1121, 1128 (9th Cir. 1999)). Bridgeforth
argues that the district court violated his Confrontation Clause
rights when it (1) did not allow him to cross-examine
Aldridge on her alleged misstatements to the FBI, and (2)
excluded extrinsic evidence of Aldridge’s potential bias stem-
ming from her car crash in Nevada. Claims of Confrontation
Clause violations are reviewed de novo and are subject to
harmless error analysis. United States v. Shryock, 342 F.3d
948, 979 (9th Cir. 2003).
That Aldridge may have misrepresented or downplayed to
the FBI the extent and length of her prior drug activity is rele-
vant because it reflects upon her veracity. Her car crash in
Nevada is also relevant because she might have thought the
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FBI could help her avoid prosecution in Nevada, even though
she had been told otherwise.
[2] However, neither limitation left the jury without suffi-
cient information to appraise Aldridge’s motivations and
biases. Aldridge testified that one reason she became a paid
informant was because she “needed the money.” Bridgeforth
was able to impeach Aldridge’s credibility by eliciting testi-
mony that she was a long-time drug user, that she had
received payment for her services in this case, and that she
had not paid taxes on any money she made as an informant.
While Aldridge testified that she had never done any drugs
other than marijuana and that she had not used drugs on the
day of the car crash, defense counsel read into evidence a stip-
ulation that Nevada police had found marijuana and metham-
phetamine in Aldridge’s purse and in her blood following the
accident. Thus, the jury heard sufficient evidence, including
extrinsic evidence that the district court had previously
excluded, from which to appraise Aldridge’s motivations.
Accordingly, there was no Confrontation Clause violation.
II The Admission of the Statements of Co-Conspirator
Ronald Daniels Did Not Violate the Confrontation
Clause.
[3] The requirements for admission of a co-conspirator’s
statement under Federal Rule of Evidence 801(d)(2)(E) are
identical to the requirements of the Confrontation Clause.
Bourjaily v. United States, 483 U.S. 171, 182 (1987). There-
fore, if a statement is admissible under Rule 801(d)(2)(E), the
defendant’s right of confrontation is not violated. Id. In order
for a statement to qualify for admission as the statement of a
co-conspirator, the following preliminary facts must be
shown: (1) there was a conspiracy, (2) the defendant and the
declarant were participants in the conspiracy, and (3) the
statement was made by the declarant during and in further-
ance of the conspiracy.1 Fed. R. Evid. 801(d)(2)(E); see Bour-
1This rule survives Crawford v. Washington, 541 U.S. 36 (2004),
because “co-conspirator statements are not testimonial.” United States v.
Allen, 425 F.3d 1231, 1235 (9th Cir. 2005).
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jaily, 483 U.S. at 175. The statement alone is insufficient to
prove these preliminary facts. Fed. R. Evid. 801(d)(2).
Because Bridgeforth did not object at trial to the district
court’s decision to admit a co-conspirator’s statements, we
review their admission for plain error. See United States v.
Musacchio, 968 F.2d 782, 791 (9th Cir. 1992).
[4] Bridgeforth argues that Daniels’s statements, “There he
go right here,” and “My boy just left,” were merely idle con-
versation. He relies on United States v. Eubanks, in which we
held that certain statements were not made in furtherance of
a conspiracy because they were not “designed to induce [the
witness’s] continued participation in the conspiracy or to allay
her fears.” 591 F.2d 513, 521 (9th Cir. 1979) (per curiam). In
Eubanks, the witness testifying to the statements was the
common-law wife of the conspirator who had made the state-
ments. Id. at 520. The conspirator had told her, among other
things, that he was going to Tucson to obtain drugs from
another conspirator, that he had spoken to several people on
the telephone, and that he was taking her to Phoenix to pick
up heroin. Id. We held that these statements were not made
in furtherance of the conspiracy because they were mere
“conversations between conspirators that did nothing to
advance the aims of the alleged conspiracy.” Id. at 521.
[5] Daniels’s statements are quite different from the state-
ments at issue in Eubanks. When Daniels told Aldridge,
“There he go right here,” he, as an intermediary, was telling
her that his supplier was present. This furthered the purpose
of the conspiracy because it informed Aldridge, the potential
buyer, that Daniels could obtain and deliver the drugs. When
Daniels said, “My boy just left,” he was telling Aldridge that,
although he had a supplier, his supplier was not then present
and Aldridge would have to go with Daniels to purchase the
drugs. Therefore, because Daniels’s statements were designed
to facilitate Aldridge’s purchase of the drugs, they were made
in furtherance of the conspiracy. There was no error, much
less plain error, in the admission of the statements.
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Bridgeforth argues also that there was no independent evi-
dence of the conspiracy. However, both Aldridge and Agent
Holliday testified that Bridgeforth drove his motorcycle up to
Aldridge’s driver’s-side door while Daniels was leaning on
her passenger-side door. In addition, Aldridge testified that
after she paid Daniels for the drugs, she saw Daniels pass the
money to Bridgeforth. Consequently, independent evidence
established both the existence of the conspiracy and Bridge-
forth’s and Daniels’s participation in that conspiracy.
III Bridgeforth’s Sentence Was Improperly Enhanced
under the Career Offender Provisions of the
Guidelines.
[6] A defendant is considered a career offender under the
Guidelines
if (1) the defendant was at least eighteen years old at
the time the defendant committed the instant offense
of conviction; (2) the instant offense of conviction is
a felony that is either a crime of violence or a con-
trolled substance offense; and (3) the defendant has
at least two prior felony convictions of either a crime
of violence or a controlled substance offense.
U.S.S.G. § 4B1.1(a). In this case, there is no dispute that the
first two requirements are satisfied. At issue is the third
requirement, regarding Bridgeforth’s prior convictions.
Bridgeforth concedes that his 1989 conviction for possession
of cocaine base qualifies as a felony conviction of a controlled
substance offense for purposes of the career offender
enhancement. He contends, however, that his 1995 conviction
for assault with a deadly weapon is not a felony conviction of
a crime of violence because it is a misdemeanor under Cali-
fornia law. We review de novo the question of whether a prior
conviction falls within the scope of the career offender
enhancement. United States v. Davis, 932 F.2d 752, 763 (9th
Cir. 1991).
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[7] To qualify as a “crime of violence,” the prior conviction
must involve the use or threatened use of force and must be
“punishable by imprisonment for a term exceeding one year.”
U.S.S.G. § 4B1.2(a). The actual sentence is irrelevant to the
categorization of the conviction as a felony under the career
offender enhancement. Davis, 932 F.2d at 764. The applica-
tion notes to section 4B1.2 define “prior felony conviction” as
“a prior adult federal or state conviction for an offense pun-
ishable by death or imprisonment for a term exceeding one
year, regardless of whether such offense is specifically desig-
nated as a felony and regardless of the actual sentence
imposed.” U.S.S.G. § 4B1.2 cmt. n.1.
[8] Assault with a deadly weapon under California Penal
Code section 245(a) is known as a “wobbler” and is punish-
able either as a felony or a misdemeanor:
Any person who commits an assault upon the person
of another with a deadly weapon or instrument other
than a firearm or by any means of force likely to pro-
duce great bodily injury shall be punished by impris-
onment in the state prison for two, three, or four
years, or in a county jail for not exceeding one year
. . . .
Cal. Penal Code § 245(a)(1) (emphasis added).2 Under Cali-
fornia law, a wobbler “is a misdemeanor for all purposes”
when the judgment results in a punishment “other than
imprisonment in the state prison” or when, after a grant of
probation without imposition of sentence, the state court “de-
2It is unclear from the record whether Bridgeforth was charged under
section 245(a)(1) or section 245(a)(2), which is reserved for assault with
a firearm other than a machine gun. See Cal. Penal Code § 245(a)(2).
While the underlying facts of the assault involved a handgun, it was
Bridgeforth’s accomplice who had the gun. Because sections 245(a)(1)
and 245(a)(2) both carry a maximum sentence of either four years in the
state prison, or one year in county jail when punished as a misdemeanor,
however, this uncertainty does not affect our resolution of this case.
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clares the offense to be a misdemeanor.” Cal. Penal Code
§ 17(b)(1), (3).3
We have previously considered whether a wobbler was a
felony for purposes of the career offender enhancement. In
United States v. Robinson, the defendant argued that his prior
conviction for a wobbler, battery on a peace officer, was a
misdemeanor because he had received a suspended sentence.
967 F.2d 287, 292-93 (9th Cir. 1992). The state court had sus-
pended the imposition of Robinson’s sentence and placed him
on three years’ probation on the condition he serve nine
3In its entirety, Section 17(b) provides as follows:
When a crime is punishable, in the discretion of the court, by
imprisonment in the state prison or by fine or imprisonment in
the county jail, it is a misdemeanor for all purposes under the fol-
lowing circumstances:
(1) After a judgment imposing a punishment other than
imprisonment in the state prison.
(2) When the court, upon committing the defendant to the
Youth Authority, designates the offense to be a misdemeanor.
(3) When the court grants probation to a defendant without
imposition of sentence and at the time of granting probation, or
on application of the defendant or probation officer thereafter, the
court declares the offense to be a misdemeanor.
(4) When the prosecuting attorney files in a court having juris-
diction over misdemeanor offenses a complaint specifying that
the offense is a misdemeanor, unless the defendant at the time of
his or her arraignment or plea objects to the offense being made
a misdemeanor, in which event the complaint shall be amended
to charge the felony and the case shall proceed on the felony
complaint.
(5) When, at or before the preliminary examination or prior to
filing an order pursuant to Section 872 [finding probable cause
that the defendant committed the offense], the magistrate deter-
mines that the offense is a misdemeanor, in which event the case
shall proceed as if the defendant had been arraigned on a misde-
meanor complaint.
Cal. Penal Code § 17(b).
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months in jail, but the court later revoked the probation. Id.
at 292. We noted that neither a grant of probation, nor a sus-
pension of the imposition of sentence, is a judgment imposing
a punishment of imprisonment for a term not exceeding one
year. In either case, no judgment is actually rendered; only if
the state court were to impose sentence and then order its exe-
cution stayed would there be a judgment. Id. at 293. Because
the wobbler did not meet the requirements of California Penal
Code section 17(b), we held that Robinson’s prior conviction
qualified as a felony under the career offender enhancement.
Id. at 293-94.
We have also considered whether wobblers are felonies for
purposes of other federal statutes. See Ferreira v. Ashcroft,
382 F.3d 1045, 1051 (9th Cir. 2004) (holding that a wobbler
was not an aggravated felony under 8 U.S.C. § 1101(a)
(43)(B) because the state court had imposed a sentence of
imprisonment in the county jail, and thus the conviction was
a misdemeanor under section 17(b)(1) of the California Penal
Code); Garcia-Lopez v. Ashcroft, 334 F.3d 840, 845 (9th Cir.
2003) (holding that a wobbler qualified for the petty offense
exception to deportation under 8 U.S.C. § 1182(a)(2)(A)
(ii)(II) because the state court had declared it a misdemeanor
under section 17(b)(3)); United States v. Qualls, 172 F.3d
1136, 1137-38 (9th Cir. 1999) (en banc) (holding that a con-
viction for assault with a deadly weapon under California
Penal Code section 245(a) was a felony for purposes of a
felon-in-possession violation under 18 U.S.C. § 922(g)(1)
because it did not qualify as a misdemeanor under section
17(b)). In all of these cases, we had to determine the maxi-
mum potential penalty for the conviction at issue. To answer
that question, we looked to how the state court treated the
wobbler.
Unlike the prior conviction in Robinson, Bridgeforth’s prior
conviction did result in a judgment imposing a punishment.
Although Bridgeforth was initially granted probation, the state
court terminated that probation on December 15, 1995, and
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imposed a sentence of 365 days in county jail. Upon imposi-
tion of that sentence, the wobbler became a misdemeanor “for
all purposes” under section 17(b)(1). Therefore, pursuant to
Robinson, Bridgeforth’s 1995 conviction did not subject him
to the career offender enhancement because it was a misde-
meanor under California law.
[9] The government argues that Robinson is distinguish-
able, but we are not persuaded. Robinson’s rationale rested on
an inquiry into the state court’s treatment of a wobbler, and
we are bound by that reasoning. To determine whether a con-
viction for a wobbler is an offense punishable by a term of
imprisonment exceeding one year under the career offender
provisions of the Guidelines, the sentencing court must look
to state law: Did the California court’s treatment of the
offense convert it into a “misdemeanor for all purposes”
under California Penal Code section 17(b)? If so, then the
conviction does not qualify as an offense “punishable by
imprisonment for a term exceeding one year.” U.S.S.G.
§ 4B1.2(a).
[10] It is true that the actual sentence imposed is irrelevant
to whether a crime is a felony under the career offender
enhancement; the crime need only be punishable by a impris-
onment for more than one year. Davis, 932 F.2d at 764. How-
ever, Robinson requires us to hold that a state court’s
subsequent treatment of a wobbler is controlling for purposes
of the career offender enhancement. When the California
court sentenced Bridgeforth to 365 days in county jail, section
17(b)(1) of the California Penal Code operated to convert that
offense to a misdemeanor “for all purposes.” We hold, there-
fore, that Bridgeforth’s conviction for violating California
Penal Code section 245(a) was not a felony conviction for a
crime of violence under sections 4B1.1 and 4B1.2 of the Sen-
tencing Guidelines, and that Bridgeforth was improperly sen-
tenced as a career offender. Because we hold that the 1995
conviction was a misdemeanor under California Penal Code
section 17(b)(1), we do not reach Bridgeforth’s contention
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that the conviction also qualified as a misdemeanor under sec-
tion 17(b)(3). Additionally, because we vacate the sentence
and remand for resentencing, we need not consider Bridge-
forth’s arguments under United States v. Booker, 543 U.S.
220 (2005).
CONCLUSION
Because Bridgeforth’s right of confrontation was not vio-
lated by the limitations placed on cross-examination or by the
admission of his co-conspirator’s statements, we affirm his
convictions. However, because the district court improperly
concluded that Bridgeforth’s 1995 conviction was a felony,
we vacate the sentence and remand for resentencing.
AFFIRMED IN PART, SENTENCE VACATED, and
REMANDED IN PART.
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