                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 08-1581
                                   ___________

United States of America,              *
                                       *
            Plaintiff - Appellee,      * Appeal from the United States
                                       * District Court for the
      v.                               * Western District of Missouri
                                       *
Bruce Allen Johnson,                   *
                                       * [UNPUBLISHED]
            Defendant - Appellant.     *
                                  ___________

                             Submitted: June 21, 2010
                                Filed: August 2, 2011
                                 ___________

Before MELLOY and BENTON, Circuit Judges, and DOTY,1 District Judge.
                           ___________

PER CURIAM.

       Following a jury trial, Bruce Johnson was convicted pursuant to 21 U.S.C.
§ 843(b) for using a telephone to facilitate the commission of a felony controlled-
substance offense, namely possession with the intent to distribute marijuana. On
appeal, Johnson challenged the sufficiency of the evidence, and we affirmed. We held
that a reasonable jury could have concluded Johnson's telephone call to his co-
defendant requesting marijuana facilitated his co-defendant's felony drug offense of
possessing with the intent to distribute marijuana. United States v. Rodebaugh, 561

      1
      The Honorable David S. Doty, United States District Judge for the District of
Minnesota, sitting by designation.
F.3d 864, 870 (8th Cir. 2009). The Supreme Court subsequently reversed and
remanded the case for further consideration in light of Abuelhawa v. United States,
129 S. Ct. 2102 (2009). Johnson v. United States, 130 S. Ct. 1136 (2010). In
Abuelhawa, the Supreme Court resolved a circuit split on the meaning of the word
"facilitate" in § 843(b) and held that the use of a telephone to make a misdemeanor
drug purchase does not "facilitate" the felony offense of narcotics distribution.
Abuelhawa, 129 S. Ct. at 2104. In this case, the relevant jury instruction permitted the
jury to convict Johnson either under the theory that his use of the telephone to
purchase marijuana from his co-defendant facilitated his own felony drug offense of
possession with the intent to distribute or under the theory that his use of the telephone
facilitated his co-defendant's felony drug-distribution offense. Since the latter theory
would allow the jury to convict on the basis of misdemeanor purchases, we believe
the jury instruction is over-inclusive and runs afoul of Abuelhawa. Given that such
an error cannot be considered harmless on this record, we reverse and remand to the
district court for a new trial. See United States v. Fiorito, 640 F.3d 338, 349 (8th Cir.
2011).
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