United States v. Maurice Haltiwanger , 356 F. App'x 918 ( 2009 )


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  •                      United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 09-2751
    ___________
    United States of America,            *
    *
    Appellee,                 *
    * Appeal from the United States
    v.                             * District Court for the
    * Northern District of Iowa.
    Maurice Haltiwanger, also known      *
    as Clyde,                            * [UNPUBLISHED]
    *
    Appellant.                *
    ___________
    Submitted: December 14, 2009
    Filed: December18, 2009
    ___________
    Before BYE, BEAM, and COLLOTON, Circuit Judges.
    ___________
    PER CURIAM.
    Maurice Haltiwanger pleaded guilty to one count of conspiracy to distribute
    fifty grams or more of cocaine base (crack) in violation of 21 U.S.C. §§ 841(a)(1),
    841(b)(1)(A), and 846, and one count of distributing and aiding and abetting the
    distribution of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and
    18 U.S.C. § 2. The district court1 determined Haltiwanger had a prior conviction for
    a felony drug offense, which triggered a mandatory minimum sentence of 240 months
    1
    The Honorable Mark W. Bennett, United States District Judge for the Northern
    District of Iowa.
    pursuant to 21 U.S.C. § 841(b)(1), and sentenced him to 240 months. Haltiwanger
    appeals his sentence contending his conviction for failure to affix a drug tax stamp in
    violation of Kansas Statutes Annotated § 79-504 does not qualify as a prior felony
    drug offense.2 We affirm.
    Haltiwanger argues his tax stamp conviction does not count as a felony drug
    offense because he could not have been sentenced to more than seven months
    imprisonment under the Kansas Sentencing Guidelines. The seven month cap is based
    on two factors: 1) Haltiwanger's criminal history category of I under the Kansas
    sentencing structure; and 2) the tax stamp offense being classified as a level 10 felony
    under Kansas law. See Kan. Stat. Ann. § 79-504 (classifying the offense as a level 10
    felony); Kan. Stat. Ann. § 21-4704(a) (setting forth a sentencing range of five to seven
    months for criminal defendants who have a criminal history category of I and are
    convicted of nondrug3 offenses classified as level 10 felonies).
    Our focus in determining whether an offense qualifies as a felony drug offense
    is not upon the maximum penalty a particular defendant may face, but upon the
    maximum penalty allowed for committing a particular crime. See United States v.
    Guzman-Tlaseca, 
    546 F.3d 571
    , 579 (8th Cir. 2008) ("[I]n determining whether a state
    conviction is punishable for more than one year's imprisonment . . . we look to the
    maximum penalty allowed by [the state] statute.") (quoting United States v. Murillo,
    
    422 F.3d 1152
    , 1153-54 (9th Cir. 2005)); see also United States v. Hill, 
    539 F.3d 1213
    , 1219 (10th Cir. 2008) (discussing Kansas's sentencing structure and explaining
    "[a]lthough an individual defendant's sentence may be capped at his presumptive
    2
    A felony drug offense in relevant part is "an offense that is punishable by
    imprisonment for more than one year under any law of the United States or of a
    State[.]" 21 U.S.C. § 802(44).
    3
    Although the tax stamp conviction is considered a nondrug offense under
    Kansas law, Haltiwanger does not dispute that it qualifies as a drug offense under
    federal law.
    -2-
    guideline range, this does not negate the Kansas code which sets a statutory maximum
    for each crime").
    The maximum penalty that can be imposed under Kansas law for the crime of
    failing to affix a drug tax stamp is thirteen months. See Kan. Stat. Ann. § 21-4704(a).
    Thus, the crime which Haltiwanger committed is punishable by imprisonment of more
    than one year, and therefore qualifies as a prior felony drug offense for purposes of
    21 U.S.C. § 841(b)(1).
    The sentence is affirmed.
    ______________________________
    -3-
    

Document Info

Docket Number: 09-2751

Citation Numbers: 356 F. App'x 918

Judges: Bye, Beam, Colloton

Filed Date: 12/18/2009

Precedential Status: Non-Precedential

Modified Date: 11/5/2024