                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 12-4007
                         ___________________________

                              United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                    Theodore S. Wiggins, also known as Theo

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                for the Western District of Missouri - Kansas City
                                 ____________

                          Submitted: November 20, 2013
                              Filed: April 3, 2014
                                 ____________

Before BENTON, BEAM, and SHEPHERD, Circuit Judges.
                           ____________

BEAM, Circuit Judge.

       Theodore Wiggins appeals his conviction by jury and sentence for conspiracy
to distribute more than five kilograms of cocaine and more than 50 grams of cocaine
base. The district court1 sentenced him to life imprisonment pursuant to the
sentencing enhancement provisions of 21 U.S.C. §§ 841 and 851. We affirm.

I.    BACKGROUND

       Police in Kansas City, Missouri, began looking into Wiggins as part of a
cocaine distribution conspiracy after police utilized court-approved wiretaps in
February 2010 on the phones of Shawn Hampton. Through use of these wiretaps,
authorities learned that Wiggins was primarily a street level distributor for Hampton
in a large-scale cocaine conspiracy. On wiretap calls heard by the jury at trial,
Wiggins and Hampton discussed cooking, purchasing and distributing the cocaine
base. Based upon the wiretap evidence, Wiggins was charged with two counts in a
multi-count indictment, and he was arrested in June 2010. Prior to Wiggins' trial, the
government filed its notice of intent to seek to enhance Wiggins' punishment under
21 U.S.C. §§ 841 and 851, due to Wiggins' two previous felony drug convictions.

        Because Wiggins does not challenge the sufficiency of the evidence on appeal,
we briefly recount the evidence presented at trial, as relevant to the issues on appeal.
Several police detectives testified about their surveillance and undercover activities,
including an officer's account of his undercover controlled purchase of cocaine base
from Wiggins. The wiretap evidence (twenty-two selected calls from a pool of
thousands of possible wiretaps) was played for the jury, while the transcript was
displayed on an overhead projector. At the time that this evidence was presented, the
jury was instructed that the contents of the calls, and not the transcripts, were the
evidence. Hampton, who had reached a plea agreement with the government,
testified about the extent of the conspiracy, including the fact that Wiggins purchased
cocaine from him on numerous occasions. Another co-conspirator who had pleaded


      1
       The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.

                                          -2-
guilty, Terrance Blewett, testified that Wiggins purchased cocaine from him, via
Hampton, on at least two occasions. Finally, the jury heard evidence, pursuant to
Rule 404(b), of Wiggins' prior convictions for sale and possession of cocaine base.
The jury convicted Wiggins of count one for the conspiracy, and count eight for
distribution, based upon his sale of cocaine to the undercover officer during the
controlled buy.

       At sentencing, the district court adopted the findings in the presentence
investigation report (PSR) to establish the drug quantities of cocaine and crack
cocaine attributable to the conspiracy, at least 840 grams. The court further noted that
the government had properly given notice of its intent to enhance Wiggins' sentence
based on prior convictions pursuant to 21 U.S.C. § 851, and that a Guidelines career
offender status was also appropriate. The court sentenced Wiggins to life
imprisonment on count one as required by statute, 21 U.S.C. § 841(b)(1)(A). On
count eight, the distribution count, Wiggins received a concurrent sentence of 360
months, also the statutory maximum.

        On appeal, Wiggins challenges (1) the use of transcripts from the wiretaps at
trial, because the transcripts identified the speakers involved in the telephone calls;
(2) the admission of Wiggins' prior convictions for distribution of cocaine base and
possession of cocaine as Rule 404(b) evidence; (3) the PSR's calculation of the
appropriate drug amount attributable to Wiggins; (4) the use of his prior conviction
for simple possession of cocaine as a qualifying conviction for a statutory sentencing
enhancement; and (5) the imposition of a life sentence. Wiggins also raises a claim
of cumulative error.




                                          -3-
II.   DISCUSSION

      A.     Wiretap transcripts

       We review the district court's admission of transcripts to aid in evaluating the
wiretap evidence for an abuse of discretion. United States v. Frazier, 280 F.3d 835,
849 (8th Cir. 2002). Wiggins argues that the district court abused its discretion by
allowing the government to use transcripts of wiretapped telephone conversations that
identified Wiggins as the individual who referred to himself as "Theo" during the
tape-recorded calls. Wiggins points to the fact that the name "Wiggins" was not used
during the calls. However, two government witnesses, Hampton and Blewett,
identified Wiggins' voice as belonging to the person who used the name Theo during
the phone calls. Further, the district court issued a cautionary instruction that the
tapes, not the transcripts, were evidence.

        While Wiggins challenges the credibility of the two witnesses who provided
the foundational identifications, this was an issue for the jury. United States v.
Hodge, 594 F.3d 614, 618 (8th Cir. 2010). Further, the government agents who
testified at trial also identified Wiggins as the person they observed meeting with
Hampton. Finally, we previously allowed the use of transcripts to assist the jury in
Frazier, where we held that because there was a sufficient foundation for the
identification, and where the district court issued a very similar limiting instruction,
there was no abuse of discretion in admitting the transcripts. 280 F.3d at 849. We
similarly find there was more than sufficient evidence to support the identification of
Wiggins' voice on the recordings, and the district court did not abuse its discretion in
allowing the transcripts to be used to assist the jury.




                                          -4-
      B.     Rule 404(b) evidence

        Wiggins argues the district court abused its discretion in allowing the
government to admit journal entries for Wiggins' two prior convictions for sale of
cocaine base and possession of cocaine, both of which occurred between 1998
(conduct) and 2000 (conviction). The journal entry indicates only that the
convictions were for controlled substances, but the arresting officer in the prior cases
testified that the controlled substances involved in these prior convictions were
cocaine and cocaine base. We review for an abuse of discretion the district court's
admission of other crimes or acts evidence pursuant to Federal Rule of Evidence
404(b). United States v. Dorsey, 523 F.3d 878, 879 (8th Cir. 2008).

       If a defendant puts his intent and knowledge of a drug conspiracy in issue, the
government can introduce evidence of a defendant's prior similar acts to help prove
its case. United States v. Banks, 706 F.3d 901, 906-07 (8th Cir. 2013). Wiggins put
his intent and knowledge at issue at trial, and thus, if the conviction was (1) relevant,
(2) similar in kind and not too remote, (3) supported by evidence and (4) not
substantially more prejudicial than probative, it was admissible under Rule 404(b).
Id. Of these four, the only plausibly contested element is remoteness, but since the
convictions were in 2000, and the current conspiracy conduct occurred in 2009, they
are not too remote according to our precedent. See, e.g., United States v. Ironi, 525
F.3d 683, 688 (8th Cir. 2008) (holding that prior distribution and possession
convictions that were eight and ten years before the charged conduct occurred were
not too remote). Accordingly the district court did not abuse its discretion in
admitting the prior offenses.

      C.     Drug Quantity

      Wiggins' next argument is that the district court erred in attributing drug
quantities to him that were not reasonably in his possession. The district court,

                                          -5-
adopting the PSR recommendation, attributed at least 840 grams of cocaine base to
Wiggins, based on the amount reasonably attributable to the conspiracy between June
2009 and June 2010. This resulted in a base offense level of 34. Wiggins points out
that he did not join the conspiracy until September 2009 (he was in prison until that
time), and argues the evidence shows that he was responsible for just over 370 grams.
The government points out that since Wiggins had two qualifying offenses, the
district court properly determined that he was a career offender pursuant to the
Guidelines, resulting in a final base offense level of 37 regardless of the drug quantity
attributable to Wiggins. Therefore, according to the government, any possible error
in the drug quantity calculation was harmless.

       Wiggins' argument is essentially a claim of procedural error by the sentencing
court. We review the application of the Guidelines de novo, and the factual findings
for clear error, and affirm the district court's drug calculation unless we are convinced
a mistake has been made. United States v. Montes-Medina, 570 F.3d 1052, 1058-59
(8th Cir. 2009). A claim of procedural error is subject to harmless error analysis.
United States v. Woods, 670 F.3d 883, 886 (8th Cir. 2012). For purposes of a
defendant's relevant conduct and sentencing range, the district court may only take
into account drug quantities at issue during the time frame that a defendant was part
of the conspiracy. United States v. Foxx, 544 F.3d 943, 953 (8th Cir. 2008) (citing
United States Sentencing Guidelines Manual (U.S.S.G.) § 1B1.3 cmt. n.2).

        Given the government's argument, we will assume that the district court erred
in calculating drug quantity. But, once Wiggins was deemed a Guidelines career
offender, the base offense level was appropriately set at 37. See U.S.S.G. § 4B1.1.
If the career offender designation was appropriate, the drug quantity calculation was
indeed harmless. Thus we turn to Wiggins' next argument that he was erroneously
deemed a career offender under the Guidelines.




                                          -6-
      D.     Career Offender/Prior Felony Conviction

       Wiggins argues that one of his prior drug convictions does not qualify him for
career offender status because this conviction was for simple possession. The
Guidelines, specifically U.S.S.G. § 4B1.2(b), indicate such a conviction cannot be
used to enhance his sentence to that of a career offender. However, Wiggins'
argument misses the mark. As in every criminal case, the PSR set forth both the
statutory provisions, and the Guidelines provisions. Of course, we learned in United
States v. Booker, 543 U.S. 220 (2005), that the Guidelines are permissive and the
statutes mandatory, but the PSR still routinely sets forth the analysis under both. In
examining Wiggins' PSR and the sentencing transcript, we find that while it is true
that the government used the two aforementioned drug offenses (one for possession
and one for distribution) for the statutory enhancement, the PSR indicates that the
qualifying felonies for the Guidelines career offender status did not include the drug
possession offense. Instead, Paragraph 66 of the PSR indicates the Guidelines career
offender status was based upon the distribution offense and two prior robbery
offenses, all three of which qualify pursuant to the definitions in § 4B1.2. Wiggins'
argument that the simple possession offense was used in the Guidelines career
offender calculation simply misstates the record.2 And, in any event, the statutory
provisions mandating a life sentence on count one and capping the count eight



      2
       Wiggins conflates the Guidelines career offender analysis with the statutory
enhancement provisions, but key differences make conflation untenable. The
Guidelines prohibit using simple possession as a career offender qualifying felony,
see U.S.S.G. § 4B1.2(b). The statute, on the other hand, allows simple possession to
be used as a qualifying prior conviction for the life sentence enhancement if it is
punishable by imprisonment for more than one year. See 21 U.S.C. §§ 802(44),
841(b); United States v. Jones, 559 F.3d 831, 837 (8th Cir. 2009). Nor do the
Guidelines require that the government give notice of the prior offenses it intends to
use for the career offender analysis, unlike the statutory enhancement notice
requirements in § 851.

                                         -7-
sentence at 360 months trumped the Guidelines provisions. Accordingly, this
argument is without merit.

      E.     Life Sentence

        Wiggins argues the district court erred in sentencing him to a life sentence. As
previously noted, any discretion the district court may have under the Guidelines is
not present in the face of a statute's mandatory life sentence. See 21 U.S.C. § 841(b)
("If any person commits a violation of this subparagraph . . . after two or more prior
convictions for a felony drug offense have become final, such person shall be
sentenced to a mandatory term of life imprisonment . . . ."). As previously discussed,
the government gave notice of two prior felony drug offenses and proved them up at
trial. Though not mentioned in the briefing, at oral argument, Wiggins raised, for the
first time,3 the issue that application of the enhancement in 21 U.S.C. § 841(b) was
not appropriate because a drug quantity of 280 grams of cocaine base was not proven
at trial. Leaving aside the issue whether this argument is properly before us, we find
that it is without merit. The verdict directing instruction required the jury to find that
Wiggins was responsible for at least 280 grams of cocaine base. The jury did so find,
and the operation of 21 U.S.C. § 841(b) plus two qualifying felony drug offenses
mandated that the district court impose a life sentence.

      F.     Cumulative Error

       Wiggins' final argument is that the cumulative effect of these alleged errors
entitles him to a new trial. As Wiggins was not substantially prejudiced by a plethora
of errors, he cannot argue that cumulative error requires reversal. United States v.


      3
       Wiggins raised a drug quantity issue, but as we read the briefing, it involved
only the issue of whether the district court properly attributed the entire 840 grams
of cocaine base distributed during the conspiracy to Wiggins.

                                           -8-
Blaylock, 421 F.3d 758, 773 (8th Cir. 2005) (standard for cumulative error reversal).
The only possible error was the Guidelines drug quantity calculation, but as noted
above, any error was harmless due to the operation of the Guidelines career offender
provisions setting the base offense level at 37, and ultimately, the statutory mandatory
life sentence. This final contention is without merit.

III.   CONCLUSION

       We affirm the judgment and sentence of the district court.
                       ______________________________




                                          -9-
