United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 10-2684

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United States of America, * 

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Southern District of Iowa.

Joseph Eugene Robinson, *

* 

Appellant. *

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Submitted: February 18, 2011

Filed: April 12, 2011

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Before SMITH, GRUENDER, and BENTON, Circuit Judges.

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GRUENDER, Circuit Judge.

After a jury trial, Joseph Robinson was convicted of one count of conspiracy

to distribute five grams or more of cocaine base (“crack cocaine”), a violation of 21

U.S.C. §§ 841(a)(1), (b)(1)(B)(iii), 846. The district court sentenced him to 360

months’ imprisonment followed by 10 years of supervised release. Robinson appeals

both his conviction and his sentence. For the reasons explained below, we affirm the

conviction but vacate Robinson’s sentence and remand for resentencing.
1

 The term “quarter” denotes one quarter of an ounce of cocaine, and the term

“eight ball” denotes one eighth of an ounce of cocaine. An ounce equals

approximately 28.35 grams.

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I. BACKGROUND

On March 25, 2009, a federal grand jury returned a superseding indictment

charging Robinson with one count of conspiracy to distribute crack cocaine between,

at the latest, January 1, 2007, and August 28, 2008 (“Count I”), and with one count

of distribution of crack cocaine on August 11, 2008 (“Count II”). Robinson entered

pleas of not guilty and proceeded to trial. At trial, the Government introduced the

testimony of, among others, Jamon Winfrey, an associate of Robinson’s. Winfrey

testified that, between 2006 and 2008, he regularly supplied Robinson with powder

cocaine. He also taught Robinson to convert the powder cocaine to crack cocaine,

which Robinson would then sell to others, typically in “[s]maller amounts, . . . eight

balls, 3.5 grams, quarters, seven grams.”1

 One of Robinson’s acquaintances, Jerome

Hall, also testified that he saw Winfrey converting powder cocaine to crack cocaine

in Robinson’s house while Robinson was present. Another acquaintance, Steven

Curry, testified that he bought sixty-three grams of crack cocaine from Winfrey in a

Burger King parking lot. According to Curry, Robinson was present in Winfrey’s car

during the transaction and took possession of the $1350 that Curry exchanged for the

drugs. 

In addition, Winfrey testified that he and Robinson would pool their money to

buy powder cocaine and that he would sometimes store drugs at Robinson’s house.

Shayla Ousley, Winfrey’s girlfriend, confirmed that she delivered packages of crack

cocaine to Robinson on numerous occasions. Moreover, Anthony Long, an informant

cooperating with the Drug Enforcement Administration (“DEA”), testified that

Robinson accompanied Winfrey during an undercover purchase of crack cocaine.
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Winfrey confirmed Robinson’s participation, testifying that Robinson had supplied

twenty-one grams of crack cocaine for the transaction.

After the close of the evidence, the jury returned a verdict of guilty on Count I,

making a specific finding that Robinson had conspired to distribute in excess of five

grams of crack cocaine. Robinson was acquitted of Count II.

At sentencing, the district court found by a preponderance of the evidence that

the conspiracy involved at least fifty grams of crack cocaine. The court also

concluded that Robinson qualified as a career offender, see U.S.S.G. § 4B1.1, and that

his prior conviction for a felony drug offense mandated a statutory minimum prison

sentence of 20 years, see 21 U.S.C. § 841(b)(1)(A). Robinson’s resulting advisory

guidelines range was 360 months to life, based on a total offense level of 37 and a

criminal history category of VI. The district court sentenced Robinson to 360 months’

imprisonment. Robinson now appeals his conviction, challenging two evidentiary

rulings. He also urges us to vacate his sentence. 

II. DISCUSSION

A. Evidentiary Rulings

Robinson challenges two of the district court’s evidentiary rulings, which we

review for abuse of discretion. See United States v. Gustafson, 528 F.3d 587, 590 (8th

Cir. 2008). “Even when an evidentiary ruling is improper, we will reverse a

conviction on this basis only when the ruling affected substantial rights or had more

than a slight influence on the verdict.” Id. at 591.

Robinson first submits that the district court committed reversible error by

admitting hearsay testimony from Timothy Starmer, a DEA agent, concerning the

seizure of drug money from Anthony Phillips during a vehicle stop in Oklahoma.
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Special Agent Starmer’s testimony was introduced after both Winfrey and Ousley had

described the same incident. Winfrey recounted an instance around “[the] end of

2007, early 2008” where Robinson contributed $5,000 to a pool for the purchase of

cocaine totaling approximately $39,000. Winfrey estimated that the sum would

purchase two or three kilograms of powder cocaine, and he testified that Robinson

was to receive approximately nine ounces as his share. Phillips was tasked with

transporting the money from Iowa to Texas. Winfrey testified that Phillips told him

that the vehicle was stopped by police in Oklahoma City and that the police seized the

drug money. Oulsey also testified that “[Phillips] went out of town to purchase crack

cocaine, and . . . got stopped.”

Robinson raised no objection to Winfrey’s or Ousley’s testimony regarding the

seizure, but he objected to subsequent testimony about the incident from Special

Agent Starmer as hearsay. See Fed. R. Evid. 801(c). The district court overruled

Robinson’s objection, and Special Agent Starmer testified that an Oklahoma police

officer informed him that officers had stopped a car containing four individuals, one

of whom was Anthony Phillips, and that “[t]here was approximately 39 to 40 thousand

dollars in the vehicle.” Special Agent Starmer mentioned neither Winfrey nor

Robinson in connection with the seizure.

 The Government concedes that the challenged testimony is hearsay but argues

that reversal is not warranted because any error in its admission was harmless. We

agree. “The admission of hearsay evidence that is cumulative of earlier trial testimony

by the declarant or cumulative of other hearsay evidence to which no objection was

made is not likely to influence the jury and is therefore harmless error.” United States

v. Londondio, 420 F.3d 777, 789 (8th Cir. 2005); see also United States v. MelecioRodriguez, 231 F.3d 1091, 1094 (8th Cir. 2000) (per curiam) (“An error in admitting

testimony may be harmless if the testimony is corroborated by independent sources,

or if it amounts to cumulative evidence on matters already before the jury.”). Special

Agent Starmer’s hearsay testimony concerning the incident in Oklahoma mirrored
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Winfrey’s testimony. Although, like Special Agent Starmer, Winfrey acknowledged

that he had no first-hand knowledge of the vehicle stop, Robinson did not object to

Winfrey’s testimony as hearsay. See United States v. White, 11 F.3d 1446, 1451 (8th

Cir. 1993). Neither did Robinson object to Oulsey’s hearsay testimony confirming

the incident. Indeed, there is no indication that Robinson even disputed that the

seizure occurred in the manner described.

Robinson counters that admission of Special Agent Starmer’s testimony was

not harmless, despite its cumulative nature, because the testimony “shore[d] up the

credibility of Winfrey.” This is not a case, however, “where that extra helping of

evidence [is] so prejudicial as to warrant a new trial.” United States v. Bercier, 506

F.3d 625, 633 (8th Cir. 2007) (quoting United States v. Ramos-Caraballo, 375 F.3d

797, 804 (8th Cir. 2004)). Special Agent Starmer merely echoed non-inculpatory

tidbits of Winfrey’s comprehensive, detailed, and unobjected-to account of the seizure

in Oklahoma. Moreover, Winfrey’s testimony was independently supported by

Ousley, whose statements likewise failed to educe an objection on hearsay grounds.

See White, 11 F.3d at 1451 (holding harmless the improper admission of a social

worker’s hearsay testimony concerning a child’s report of sexual abuse where the

credibility of the child’s testimony was supported by other witnesses); cf. United

States v. Kenyon, 397 F.3d 1071, 1082 (8th Cir. 2005) (holding that the improper

admission of hearsay testimony concerning a child’s report of sexual abuse warranted

reversal where the child’s otherwise uncorroborated testimony “was the sole basis for

conviction” and the hearsay augmented the child’s testimony “with additional detail

in certain areas”). Finally, the record is replete with other evidence furnishing

redoubtable support for the jury’s finding of guilt beyond a reasonable doubt; Ousley,

Hall, Curry, and Long independently recounted numerous instances where Robinson

conspired with Winfrey to distribute crack cocaine. See United States v. Smith, 410

F.3d 426, 429-30 (8th Cir. 2005); United States v. Torres-Galindo, 206 F.3d 136, 141-

42 (1st Cir. 2000). Consequently, we are confident that Special Agent Starmer’s
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duplicative testimony could not have had more than a slight influence on the outcome

of the trial. See Gustafson, 528 F.3d at 591.

Robinson next challenges the admission of evidence of prior unlawful conduct,

arguing that the district court abused its discretion under Fed. R. Evid. 404(b). During

a 2006 encounter, Officer Chad Ruroden of the Des Moines Police Department

discovered a small amount of crack cocaine in Robinson’s navel, and at trial Robinson

objected to the officer’s testimony about the incident. The district court admitted the

testimony and instructed the jury that the evidence was not admitted to show

propensity, but for the limited purpose of showing knowledge and absence of mistake.

A district court acts within its sound discretion in admitting evidence of prior

criminal or wrongful acts when “(1) it is relevant to a material issue; (2) it is similar

in kind and not overly remote in time to the crime charged; (3) it is supported by

sufficient evidence; and (4) its potential prejudice does not substantially outweigh its

probative value.” United States v. Frazier, 280 F.3d 835, 847 (8th Cir. 2002) (quoting

United States v. Hardy, 224 F.3d 752, 757 (8th Cir. 2000)). On appeal, Robinson does

not contest the second and third enumerated considerations. With regard to the first

prong, relevance, Robinson’s general denial defense placed his state of mind at issue.

See United States v. Gipson, 446 F.3d 828, 831 (8th Cir. 2006). It is settled in this

circuit that “a prior conviction for distributing drugs, and even the possession of

user-quantities of a controlled substance, are relevant under Rule 404(b) to show

knowledge and intent to commit a current charge of conspiracy to distribute drugs.”

Frazier, 280 F.3d at 847; see also United States v. Logan, 121 F.3d 1172, 1178 (8th

Cir. 1997) (“This is so even if the defendant has not raised a defense based on lack of

knowledge or lack of intent.”). Morever, the potential prejudicial impact of Officer

Ruroden’s testimony was assuaged by the district court’s thorough instruction to the

jury on the limited purpose of the testimony. See Frazier, 280 F.3d at 848.

Accordingly, we conclude that the district court did not abuse its discretion in

admitting the officer’s testimony.
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B. Sentencing

Robinson challenges the district court’s determination that his prior conviction

for violating Iowa’s drug tax stamp law qualifies as a prior “felony drug offense”

subjecting him to the 20-year minimum sentence mandated by 21 U.S.C.

§ 841(b)(1)(A), and that the drug tax stamp conviction qualifies as a “controlled

substance offense” under the career offender provision of the sentencing guidelines.

In addition, Robinson challenges the substantive reasonableness of his sentence. 

We review a district court’s sentencing decisions for reasonableness, using “the

familiar abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 46 (2007).

Before reviewing the substantive reasonableness of a sentence, we “must first ensure

that the district court committed no significant procedural error, such as failing to

calculate (or improperly calculating) the Guidelines range.” Id. at 51. “In

determining whether a procedural error has been committed, we review ‘the district

court’s factual findings for clear error, and its interpretation and application of the

guidelines, de novo.’” United States v. Williams, 627 F.3d 324, 327 (8th Cir. 2010)

(quoting United States v. Byas, 581 F.3d 723, 725 (8th Cir. 2009)).

Robinson first argues that the district court erred by finding his conviction for

violating Iowa’s drug tax stamp law to be a prior “felony drug offense” for purposes

of applying § 841(b)(1)(A). The district court, however, sentenced Robinson to a term

of 360 months’ imprisonment. Because the court’s sentencing decision was not

constrained by the 240-month statutory minimum, Robinson “lacks standing to

challenge the applicability of the statutory minimum.” See United States v. Greer, 607

F.3d 559, 565 (8th Cir.), cert. denied, 562 U.S ---, 131 S. Ct. 434 (2010).

Robinson next disputes the district court’s determination that he qualifies as a

“career offender” under U.S.S.G. § 4B1.1. A defendant is considered a career

offender if he has two prior convictions for either a “controlled substance offense” or
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a “crime of violence.” § 4B1.1(a). The district court deemed Robinson a career

offender, based on a 1999 felony conviction for a crime of violence—conspiracy to

commit terrorism—and a 2007 felony conviction for violating Iowa’s drug tax stamp

law, which it determined to be a controlled substance offense. On appeal, Robinson

challenges only the court’s determination that the drug tax stamp conviction qualifies

as a controlled substance offense.

 The sentencing guidelines define “controlled substance offense” as “an offense

under federal or state law, punishable by imprisonment for a term exceeding one year,

that prohibits the manufacture, import, export, distribution, or dispensing of a

controlled substance . . . or the possession of a controlled substance . . . with intent to

manufacture, import, export, distribute, or dispense.” § 4B1.2(b). A felony

conviction for simple possession of a controlled substance does not qualify as a

controlled substance offense under § 4B1.2. Salinas v. United States, 547 U.S. 188

(2006) (per curiam).

 To determine whether a prior conviction qualifies as a controlled substance

offense, the court must apply the “categorical approach,” under which “we consider

the offense generically, that is to say, we examine it in terms of how the law defines

the offense and not in terms of how an individual offender might have committed it

on a particular occasion.” United States v. Begay, 553 U.S. 137, 141 (2008). When

the statute giving rise to the conviction criminalizes both conduct that does and does

not qualify as a controlled substance offense, “we apply a modified categorical

approach, in which a court ‘may refer to the charging document, the terms of a plea

agreement, jury instructions, or comparable judicial records,’” United States v.

Pearson, 553 F.3d 1183, 1186 (8th Cir. 2010) (quoting United States v.

Montenegro-Recinos, 424 F.3d 715, 717 (8th Cir. 2005)), in order to determine

“which portion of the statute was the basis for conviction,” United States v. Ross, 613

F.3d 805, 807 (8th Cir. 2010).
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Iowa Code § 453B, the state’s drug tax stamp law, provides that “[a] dealer

shall not possess, distribute, or offer to sell a taxable substance unless the tax imposed

under this chapter has been paid as evidenced by a stamp, label, or other official

indicia permanently affixed to the taxable substance.” § 453B.3. The Iowa Code

defines “taxable substance” as “a controlled substance, a counterfeit substance, a

simulated controlled substance, or marijuana, or a mixture of materials that contains

a controlled substance, counterfeit substance, simulated controlled substance, or

marijuana.” § 453B.1(10). A “dealer” is defined as “any person who [unlawfully]

ships, transports, or imports into this state or acquires, purchases, possesses,

manufactures, or produces in this state [specified quantities of a taxable substance].”

§ 453B.1(3) (emphasis added).

As an initial matter, Robinson argues that § 453B falls wholly outside the

sentencing guidelines’ definition of “controlled substance offense” because it does not

“prohibit” any conduct involving controlled substances. Rather, as Robinson points

out, “[t]he statute allows an individual to possess, manufacture, purchase, produce, or

transport drugs illegally without incurring tax liability or penalties, provided either the

individual’s activities involve less than the amount of drugs specified in the drug

stamp tax statute or the individual timely pays the mandated tax.” Padavich v.

Thalacker, 162 F.3d 521, 523 (8th Cir. 1998). The Government counters that “the

prohibition against possessing with the intent to distribute need not be absolute in

order to come within the scope of USSG §4B1.2.”

We need not decide whether the statute’s regulation of shipment, transportation,

importation, purchase, manufacture, and production of “taxable substances” comprises

a controlled substance offense, however, because § 453B applies equally to persons

who simply possess a specified amount of drugs—a violation which unquestionably

fails to qualify as a controlled substance offense. See Salinas, 547 U.S. at 188. At

most, then, it appears that § 453B criminalizes both conduct that does and does not

qualify as a controlled substance offense. 
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The Government urges us to disregard the plain language of § 453B, asserting

that application of the modified categorical approach is unwarranted because

Robinson’s conviction for violating § 453B conclusively establishes that he was

convicted of a controlled substance offense. First, the Government contends that

§ 453B “categorically” qualifies as a controlled substance offense because “[t]he very

elements of the offense require that the defendant be a dealer who unlawfully

possess[es], distributes, or offers to sell a controlled substance.” (emphasis added).

But, as noted above, the Iowa Code’s definition of “dealer” for purposes of the drug

tax stamp statute encompasses persons who merely possess a threshold quantity of a

specified substance. Iowa Code § 453B.1(3). Thus, in State v. Franzen, 495 N.W.2d

714 (Iowa 1993), the Iowa Supreme Court concluded that “possession of marijuana

is a lesser included offense of failure to affix a drug tax stamp.” Id. at 717 (applying

identical provisions of the drug tax stamp statute as formerly codified at Iowa Code

§ 421A); see also State v. Adams, 554 N.W.2d 686, 691 (Iowa 1996) (concluding that

sufficient evidence supported a factual finding that the defendant was a “dealer” for

purposes of a § 453B conviction where the evidence permitted the trial court to find

that the defendant possessed in excess of the specified quantity of crack cocaine).

Second, the Government argues that a violation of Iowa’s drug tax stamp law

necessarily qualifies as a controlled substance offense because “a dealer cannot violate

the tax stamp law without committing the crime of illegally possessing a drug with

intent to distribute.” We remain unpersuaded. Indeed, State v. Gallup, 500 N.W.2d

437 (Iowa 1993), upon whose reasoning the Government relies, provides no support

for the Government’s construction of the drug tax stamp law. There, the defendant

received concurrent sentences arising out of his conviction for two crimes: (1)

delivery of a controlled substance, and (2) distribution of a taxable substance without

a drug tax stamp. Id. at 439. He appealed, arguing that imposition of both sentences

violated the Fifth Amendment’s Double Jeopardy Clause. The Iowa Supreme Court

agreed that the two convictions involved the same offense, because, in that case, “[t]he

drug tax stamp offense cannot be committed without committing the delivery
2

 The court nevertheless concluded that imposing separate punishments for the

two violations did not run afoul of the Double Jeopardy Clause because the Iowa

legislature authorized cumulative punishment under the two statutes. Gallup, 500

N.W.2d at 443 (citing Missouri v. Hunter, 459 U.S. 359, 368-69 (1983)).

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offense.”2 Id. at 442; see also State v. Stage, 596 N.W.2d 503, 503 (Iowa 1999). It

is upon this language that the Government now seizes, extrapolating that “a dealer

cannot violate the tax stamp law without committing the crime of illegally possessing

a drug with intent to distribute.” However, Gallup did not suggest that every violation

of § 453B necessarily entails the commission of a distribution-related offense. Rather,

the court held that where, as in Gallup, the defendant violated § 453B by distributing

a taxable substance without a drug tax stamp, the underlying act of delivery was a

lesser included offense of the tax stamp violation. Id. Indeed, the court expressly

acknowledged that a defendant can violate § 453B in a variety of contexts without an

intent to distribute, pointing to State v. Lange, 495 N.W.2d 105, 107 (Iowa 1992)

(holding that manufacture of the specified quantity of a controlled substance is a lesser

included offense of failing to affix a drug tax stamp), and, more importantly, to

Franzen, 495 N.W.2d at 717 (holding that possession of the specified quantity of a

controlled substance is a lesser included offense of failing to affix a drug tax stamp).

Because we cannot agree with the Government’s position that a violation of

Iowa’s drug tax stamp law categorically qualifies as a controlled substance offense,

we conclude that the drug tax stamp law is overinclusive and that we must apply the

modified categorical approach to determine which portion of the statute was the basis

for Robinson’s conviction. See Ross, 613 F.3d at 807. The documentation presented

at sentencing indicated only that Robinson was charged with “unlawfully possessing

ten or more dosage units of Oxycodone, not having affixed a State of Iowa drug tax

stamp, label, or other official indicia thereto.” This scant documentation provides no

support for a conclusion that Robinson’s tax stamp conviction was predicated on

anything more than mere possession of Oxycodone, and, if anything, it favors an

inference to the contrary. Therefore, even assuming that Iowa’s drug tax stamp law
3 United States v. Haltiwanger, No. CR07-4037, 2009 WL 454978 (N.D. Iowa

Feb. 23, 2009), on which the Government relies, is inapposite. While the Government

represents that Haltiwanger “hold[s] [that a] Kansas tax stamp conviction qualified

as [a] predicate offense under [the] career offender guideline,” the case actually

addressed whether the defendant’s tax stamp conviction qualified as a “felony drug

offense” for purposes of determining the minimum sentence mandated by 21 U.S.C.

§ 841(b)(1)(A). In the present case, by contrast, we are faced with the question

whether a violation of the Iowa drug tax stamp law qualifies as a “controlled

substance offense” under U.S.S.G. § 4B1.2(b), the definition of which is both different

from and narrower than that of felony drug offense. See United States v. Sandle, 123

F.3d 809, 812 (5th Cir. 1997). For the same reason, our present holding does not

collide with our reasoning in United States v. Coleman, 556 F.3d 851, 853 (8th Cir.

2009).

4

 Robinson also challenges his sentence as substantively unreasonable. Because

we must vacate Robinson’s sentence and remand the case to the district court for

resentencing, we need not address the substantive reasonableness of the vacated

sentence.

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encompasses some offenses which qualify under § 4B1.2—a point upon which we

express no opinion—the Government plainly failed to show that Robinson’s

conviction was such an offense.3

 Applying the modified categorical approach, then,

we hold that the documentation before the district court was insufficient to permit it

to treat Robinson’s conviction as a controlled substance offense for purposes of the

career offender enhancement.4

 In accord with “the traditional path” of limiting the

Government to one bite at the apple, we direct the district court on remand to

resentence Robinson based on the record already before it. See United States v.

Gammage, 580 F.3d 777, 779, 780 (8th Cir. 2009).
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III. CONCLUSION

For the reasons stated above, we affirm the judgment of conviction, vacate

Robinson’s sentence, and remand the case for further proceedings not inconsistent

with this opinion.

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