                     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as Clyde,                            * [UNPUBLISHED]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.
                      ______________________________




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