## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 10-2684

___________ United States of America, *
* Appellee, * * Appeal from the United States v. * District Court for the * Southern District of Iowa. Joseph Eugene Robinson, * * Appellant. *

___________ Submitted: February 18, 2011 Filed: April 12, 2011

___________ Before SMITH, GRUENDER, and BENTON, Circuit Judges.

___________ 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. Th e district court sentenced him to 360 months’ imprisonment followed by 10 years of supervised release. Robinson appeals both his conviction and his sentence. For th e reasons explained below, we affirm the conviction but vacate Robinson’s se ntence and remand for resentencing.1 The term “quarter” denotes one quarterof an ounce of cocaine, and the term “eight ball” denotes one eighth of an ounce of cocaine. An ounce equals approximately 28.35 grams.

-2- I. BACKGROUND

On March 25, 2009, a federal grand jury returned a superseding indictment charging Robinson with one count of conspi racy 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 Augus t 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 conve rt the powder cocaine to crack cocaine, which Robinson would then sell to others, typically in “[s]maller amounts, . . . eight balls, 3.5 grams, quart ers, seven grams.” 1 One of Robinson’s acquaintances, Jerome Hall, also testified that he saw Winfre y converting powder cocaine to crack cocaine in Robinson’s house while Robinson was pr esent. 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 heand 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 deliveredpackages of crack cocaine to Robinson on numerous occasions. Moreover, Anthony Long, an informant cooperating with the Drug Enforcement Ad ministration (“DEA”), testified that Robinson accompanied Winfrey during an undercover purchase of crack cocaine.-3- 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 c onspired to distribute in excess of five grams of crack cocaine. Robinson was acquitted of Count II.

At sentencing, the district court f ound by a preponderance of the evidence that the conspiracy involved at least fifty grams of crack cocaine. The court also concluded that Robinson qualif ied as a career offender, see U.S.S.G. § 4B1.1, and that his prior conviction for a felony drug offe nse 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, ba sed on a total offens e level of 37 and a criminal history category of VI. The district court sentenced Robinson to 360 months’ imprisonment. Robinson now appeals his convi ction, 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 ruli ng affected substantial rights or had more than a slight influence on the verdict.” Id. at 591.

Robinson first submits that the distri ct court committed reversible error by admitting hearsay testimony from Timothy St armer, a DEA agent, concerning the seizure of drug money from Anthony Phillip s during a vehicle stop in Oklahoma.-4- Special Agent Starmer’s testimony was intr oduced 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 St armer 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 approximate ly 39 to 40 thousand dollars in the vehicle.” Special Agen t Starmer mentioned neither Winfrey nor Robinson in connection with the seizure.

The Government concedes th at the challenged testimony is hearsay but argues that reversal is not warranted because any error in its admissi on was harmless. We agree. “The admission of h earsay 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 ju ry and is therefor e 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 matte rs already before the jury.”). Special Agent Starmer’s hearsay testimony concerning the incident in Oklahoma mirrored-5- Winfrey’s testimony. Although, like Speci al Agent Starmer, Winfrey acknowledged that he had no first-hand knowledge of th e 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 natu re, because the testimony “shore[d] up the credibility of Winfrey.” This is not a cas e, 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 ch ild’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 uncorr oborated testimony “was the sole basis for conviction” and the hearsay augmented th e child’s testimony “w ith 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 indepe ndently 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 ar e confident that Special Agent Starmer’s-6- duplicative testimony could not have had morethan 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 inRobinson’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 thatthe evidence was not admitted to show propensity, but for the limited purpose of s howing knowledge and absence of mistake.

A district court acts within its sound di scretion in admitting evidence of prior criminal or wrongful acts when “(1) it is rele vant 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 c onsiderations. With regard to the first prong, relevance, Robinson’s ge neral 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 di stributing 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 ch arge 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 de fense 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 ab use its discretion in admitting the officer’s testimony.-7- 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 st amp conviction qualifies as a “controlled substance offense” under the career offende r provision of the sentencing guidelines. In addition, Robinson challenges the substa ntive 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 reasonablen ess of a sentence, we “must first ensure that the district court committed no signifi cant procedural error, such as failing to calculate (or improperly calculati ng) 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 c ourt, 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 “c ontrolled substance offense” or-8- a “crime of violence.” § 4B1.1(a). Th e district court deemed Robinson a career offender, based on a 1999 fel ony 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 th at the drug tax stamp conviction qualifies as a controlled substance offense.

The sentencing guidelines define “contro lled 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 c ontrolled 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 convic tion qualifies as a controlled substance offense, the court must apply the “cate gorical 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 conduc t that does and does not qualify as a controlled substance offe nse, “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).-9- 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 eviden ced by a stamp, label, or other official indicia permanently affixed to the taxabl e substance.” § 453B.3. The Iowa Code defines “taxable substance” as “a contro lled 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 pers on who [unlawfully] ships, transports, or imports into this state or acquires, purchases, possesses , manufactures, or produces in this state [sp ecified quantities of a taxable substance].” § 453B.1(3) (emphasis added).

As an initial matter, Robinson argues th at § 453B falls wholly outside the sentencing guidelines’ defin ition 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 individua l 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 intentto 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 “taxab le substances” comprises a controlled substance offense, however, because § 453B applie s equally to persons who simply possess a specified amount of drugs—a violation which unquestionably fails to qualify as a contro lled substance offense. See Salinas , 547 U.S. at 188. At most, then, it appears that § 453B crimin alizes both conduct that does and does not qualify as a controlled substance offense.-10- The Government urges us to disregard the plain language of § 453B, asserting that application of the modified cate gorical approach is unwarranted because Robinson’s conviction for violating § 453B conclusively estab lishes that he was convicted of a controlled substance offense. First, the Government contends that § 453B “categorically” qualifies as a contro lled substance offense because “[t]he very elements of the offense requi re 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 defi nition 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 c oncluded that “possession of marijuana is a lesser included offense of failu re to affix a drug tax stamp.” Id. at 717 (applying identical provisions of the drug tax stamp st atute as formerly codified at Iowa Code § 421A); see also State v. Adams , 554 N.W.2d 686, 691 (Iowa1996) (concluding that sufficient evidence supported a factual findi ng 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 vi olation of Iowa’s drug tax stamp law necessarily qualifies as a controlled substan ce 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 G overnment relies, provides no support for the Government’s construction of the drug tax stamp law. There, the defendant received concurrent sentences arising outof 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 Je opardy 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 co mmitted without committing the delivery2The court nevertheless concluded that imposing se parate 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)).

-11- offense.” 2 Id. at 442; see also State v. Stage , 596 N.W.2d 503, 503 (Iowa 1999). It is upon this language that th e 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 st amp, 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 offe nse of failing to affix a drug tax stamp).

Because we cannot agree with the Gove rnment’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 approachto 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 Robins on 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 th ereto.” 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 thatIowa’s drug tax stamp law3 United States v. Haltiwanger , No. CR07-4037, 2009 WL 454978 (N.D. Iowa Feb. 23, 2009), on which the G overnment relies, is inappos ite. While the Government represents that Haltiwanger “hold[s] [that a] Kansas tax stamp conviction qualified as [a] predicate offense under [the] car eer offender guideline,” the case actually addressed whether the defendant’s tax st amp conviction qualified as a “felony drug offense” for purposes of determining th e minimum sentence mandated by 21 U.S.C. § 841(b)(1)(A). In the present case, by c ontrast, 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 thatof 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).

4Robinson also challenges his senten ce as substantively unreasonable. Because we must vacate Robinson’s sentence and rema nd the case to the district court for resentencing, we need not address the substantive reasonableness of the vacated sentence.

-12- encompasses some offenses which qualify under § 4B1.2—a point upon which we express no opinion—the Government plai nly 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 convicti on as a controlled substance offense for purposes of the career offender enhancement. 4In 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).-13- III. CONCLUSION

For the reasons stated above, we affi rm the judgment of conviction, vacate Robinson’s sentence, and remand the case fo r further proceedings not inconsistent with this opinion.

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