United States v. Roberson

United States Court of Appeals
For the First Circuit

No. 05-1315

UNITED STATES OF AMERICA,

Appellee,

v.

KURT ROBERSON,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. George A. O'Toole, Jr., U.S. District Judge]

Before

Lipez, Circuit Judge,

Cyr, Senior Circuit Judge,

and Howard, Circuit Judge.

Martin F. Murphy, with whom Foley Hoag LLP was on brief, for
appellant.
Randall E. Kromm, Assistant United States Attorney with whom
Michael J. Sullivan, United States Attorney, was on brief, for
appellee.

August 11, 2006
 HOWARD, Circuit Judge. A jury convicted Kurt Roberson of

selling more than 50 grams of crack cocaine, see 21 U.S.C. §

841(a)(1) and 841(b)(1)(A)(iii), and of using or carrying a firearm

during and in relation to that transaction, see 18 U.S.C. §

924(c)(1)(A). The district court sentenced Roberson to 300 months'

imprisonment. Roberson's appeal challenges his convictions and

sentence on several grounds. We affirm.
I.

The Federal Bureau of Investigation (FBI) began

investigating Roberson in early 2003. As part of that

investigation, FBI agents engaged the services of a cooperating

witness, Eric Mena, who had known Roberson for eight years and had

formerly been a drug dealing associate of Roberson's. Mena agreed

to make a controlled purchase of crack cocaine from Roberson as
part of a plea bargain resolving drug charges against him.

On March 10 of that year, FBI agent Edward Kappler

outfitted Mena with an electronic transmitter and a digital

recorder to enable the FBI to monitor Mena's conversations with
Roberson. Mena then went to the home of Raymond Muse, a mutual

associate of Roberson and Mena, and informed him that he wanted to

buy some crack from Roberson. Muse brought Mena to where Roberson

was currently staying. After Roberson entered Mena's car, Mena

told him that he needed two ounces of crack. Roberson agreed to

provide the drugs the next evening and told Mena that he should

call to initiate the pickup.

-2-
 While Mena was saving Roberson's phone number on his

mobile phone, Roberson spontaneously stated, "Yo, you got any

burners? I can trade you a burner." Mena testified at trial that

"burner" meant handgun, and that he understood Roberson's statement

to be an offer to sell him a gun. Roberson described the gun as "a

brand new, 40 cal." that was "like a Glock, top is chrome. The

rest is plastic." Mena was noncommittal as to that offer but

confirmed that he would meet with Roberson the next day.

The following evening, Mena, who was again outfitted with
a transmitter and an audio recorder, tried several times,

unsuccessfully, to reach Roberson on his mobile phone. The FBI

directed Mena to drive to Muse's house again. Rather than using

his own car, however, Mena drove an undercover car that the FBI had

equipped with a hidden video camera. After Muse and Mena
successfully contacted Roberson, Muse directed Mena to an apartment

complex in a nearby town. Mena drove the undercover car with Muse

as his passenger.

After they arrived at the apartment complex, Muse located

Roberson and brought him to Mena's car. Roberson sat in the front

passenger seat next to Mena, while Muse sat in the back. Roberson

told Mena, "I got your sixty grams," and then told him it would

cost $2,000. As Mena was counting out his money, Roberson looked

out the back window and stated, "I got the rap on me so I'm shook

anyway." Mena testified at trial that this meant that Roberson was

paranoid because he had a handgun on him. Roberson then handed

Mena a sandwich bag containing crack.

-3-
 As Mena inspected the crack, Roberson pulled a handgun

out of his waistband, pointed it in Mena's direction, and stated,

"That's what I'm talking about man." Mena told Roberson not to

point the gun at him and asked to see it. Roberson handed the gun

to Mena, who looked at it and smelled it to see if it had been

fired. Mena found the design of the gun to be consistent with a

"Glock" in that the top was chrome and the bottom was plastic.

Mena asked Roberson why he wanted to get rid of the handgun and

Roberson replied that the serial numbers had been scratched off.
When Mena asked whether the gun had been fired yet, Roberson

replied, "Nah, I don't waste shells, man. I shoot niggas though."

Mena handed the gun back to Roberson, and they completed the drug

transaction.

Mena then asked Roberson if he would be interested in
buying Mena's car. Mena initiated this conversation outside the

car so that FBI agents would have an opportunity to observe

Roberson directly. As a result, agent Timothy Quinn, who was

conducting physical and audio surveillance nearby, was able to

drive within 12 feet of Mena and Roberson as they looked over the

vehicle. Roberson then went back into the apartment complex.

Later that month, a federal grand jury returned a two

count indictment charging Roberson of possession with intent to

distribute and distribution of more than 50 grams of cocaine base,1

1
The term "cocaine base," includes, inter alia, "crack
cocaine." United States v. Anderson, --- F.3d ---, No. 05-1872,
2006 WL 1766704, at *20 (1st Cir. June 29, 2006).

-4-
in violation of the Controlled Substances Act ("CSA"), see 21

U.S.C. § 841(a)(1) and 841(b)(1)(A)(iii) (the "drug charge"), and

of using or carrying a firearm "during and in relation to" a drug

trafficking offense, see 18 U.S.C. § 924(c)(1)(A) (the "gun

charge"). The government subsequently filed an information

pursuant to 21 U.S.C. § 851 providing notice of its intent to seek

increased punishment -- the doubling of the drug charge's mandatory

minimum sentence from 10 to 20 years -- by reason of a prior

conviction. After a five-day trial, including testimony from Mena,
Kappler and Quinn, a jury convicted Roberson on both counts.

Roberson moved for a judgment of acquittal both during

trial and after the verdict. See Fed. R. Crim. P. 29(a), (c). He

argued that there was insufficient evidence establishing that he

had possessed crack or had sold more than 50 grams of crack. He
also argued that the government had not presented sufficient

evidence to prove that he had carried or used a "firearm," as that

term is defined in 18 U.S.C. § 921(a)(3), or that he had carried or

used a firearm "during and in relation to" the drug transaction.

Finally, he argued that, because the government had not offered any

evidence establishing his prior conviction, the district court

could not impose an increased penalty for the drug conviction. The

court denied Roberson's motions in all respects.

At sentencing, the district court found that the 20-year

mandatory minimum applied to the drug charge, see 21 U.S.C. §

841(b)(A)(iii), and a 5-year consecutive mandatory minimum applied

to the gun charge, see 18 U.S.C. § 924(c)(1)(A). After determining

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that the Sentencing Guidelines advised a sentencing range of 35

years to life, and considering the sentencing factors set forth in

18 U.S.C. § 3553(a), the court imposed a sentence of 25 years in

prison, the statutory minimum sentence.

Roberson now appeals the district court's order denying

his motion for judgment of acquittal on the gun charge, arguing

that the government failed to adduce sufficient evidence to prove

either that he carried an actual "firearm" or that he carried a

firearm "in relation to" a drug trafficking offense. He
alternatively requests a new trial on the gun charge on the ground

that the court erroneously instructed the jury concerning the "in

relation to" requirement, and a new trial on both charges on the

basis of improperly admitted testimony. Finally, Roberson argues

that the applicable mandatory minimum sentence for the drug
conviction is ten years, not 20 years.

II.

A. The gun charge

Roberson challenges the consecutive five-year mandatory
minimum sentence he received for using or carrying a firearm

"during and in relation to a drug trafficking offense" on several

grounds. 18 U.S.C. § 924(c)(1)(A). We begin with Roberson's

contention that the district court incorrectly instructed on the

"in relation to" requirement, and compounded the error by simply

restating the same erroneous instruction when the jury sought

clarification.

-6-
 At trial, both Roberson and the government submitted

proposed jury instructions addressing the gun charge. The

government proposed the First Circuit pattern jury instruction,

which provides, in relevant part:

To "carry" a firearm during and in relation to
a crime means to move or transport the firearm
on one's person or in a vehicle or container
during and in relation to the crime. It need
not be immediately accessible. To "use" a
firearm during and in relation to a crime
means to employ the firearm actively, such as
to brandish, display, barter, strike with,
fire or attempt to fire it, or even to refer
to it in a way calculated to affect the
underlying crime. The firearm must have
played a role in the crime or must have been
intended by the defendant to play a role in
the crime. That need not have been its sole
purpose, however.

See First Circuit Criminal Pattern Jury Instructions § 4.07 (1998).

The pattern instruction purposefully declines to define "in
relation to" separately from the terms "carry" and "use." See id.

§ 4.07 cmt. 3 ("It seems best not to define 'use or carry'

separately from 'during and in relation to.'").2 Roberson,

however, drawing on language from Smith v. United States, 508 U.S.

223 (1993), proposed that a paragraph be added to directly address

this requirement. The court agreed to instruct the jury on the "in

relation to" element, but declined to adopt Roberson's proposal

2
Although Roberson does not challenge the pattern instruction
itself, we pause to note that the pattern instructions are not
mandatory nor has this court approved the use of any particular
instruction. See United States v. Tse, 375 F.3d 148, 157-58 (1st
Cir. 2004).

-7-
wholesale. Instead, it crafted its own instruction based on

language from Smith:

The words "during and in relation to" are to
be given their plain and customary meaning.
The phrase "in relation to" is expansive. At
a minimum it means that the firearm must have
had some purpose or effect with respect to the
drug trafficking crime. If a firearm is
present simply as a result of coincidence or
accident it cannot be said that it was used or
carried in relation to the drug traffic[king]
offense. The firearm must have facilitated or
have had the potential to facilitate the drug
offense.
During a pre-charge conference, Roberson objected to the

statement "the phrase 'in relation to' is expansive." He argued

that the word "expansive" erroneously implied that the phrase "in

relation to" was intended to expand, rather than limit, the phrase

"used or carried." The district court denied the objection and
delivered the pattern jury instruction along with the "in relation

to" insert that it had crafted. After the charge, Roberson failed

to renew his objection, and the jury retired to deliberate.

During the first full day of deliberations, the jury

submitted a note asking: "Does carrying a firearm during but

independent of a drug transaction constitute the use of a firearm

in relation to drug trafficking?" Contending that the word

"independent" means the opposite of "in relation to," Roberson

requested the court to directly answer the jury's question in the

negative. The court, however, agreed with the government that such

an instruction would risk providing the jury with a decisive

conclusion. The court therefore elected to simply re-read the gun

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charge instruction in the hope that hearing the instruction again

would help the jury resolve the question internally. Before the

court summoned the jury, Roberson again objected that the

instruction was erroneous insofar as it stated that "in relation

to" is "expansive." After the re-reading of the instruction, the

jury returned its verdicts later that day without additional

inquiry.

To preserve an objection to a jury instruction under Fed.

R. Crim. P. 30(d), a litigant must lodge a specific objection and
state the grounds for the objection after the court has charged the

jury and before the jury begins deliberations. See United States

v. Moran, 393 F.3d 1, 13 & n.7 (1st Cir. 2004). Objections

registered during pre-charge hearings are insufficient to preserve

the issue. See id. We review such unpreserved jury instruction
claims for plain error only. See id.

Roberson seeks a more favorable standard of review by

arguing that his second objection to the "expansive" instruction

preserved the issue because it was made after the court's original

charge to the jury on the gun charge and before the jury retired to

deliberate following the court's re-reading of the gun charge

instruction. Roberson contends that the second objection

effectively served Rule 30(d)'s purpose "to bring to the attention

of the trial court errors or omissions in its charge so that they

may be corrected before the case goes to the jury." United States

v. Sturm, 870 F.2d 769, 775-76 (1st Cir. 1989). But the case had

already gone to the jury. Roberson's renewed objection, registered

-9-
after the jury had begun its deliberations, came too late to

satisfy Rule 30(d). See United States v. Santana-Rosa, 132 F.3d

860, 863 n.1 (1st Cir. 1998) ("[A] party waives any objection it

might have to a jury instruction by failing to enter that objection

into the record immediately after the judge has instructed the jury

and before the jury begins deliberations.") (Emphasis added).3 We

therefore review the instruction for plain error, under which

Roberson "must demonstrate: (1) that an error occurred (2) which

was clear or obvious and which not only (3) affected the
defendant's substantial rights, but also (4) seriously impaired the

fairness, integrity, or public reputation of judicial proceedings."

Moran, 393 F.3d at 13 (quotation marks omitted).

Roberson cannot meet this stringent standard. The

district court took the language "[t]he phrase 'in relation to' is
expansive" directly from the majority opinion in Smith. See 508

U.S. at 237. Roberson makes no argument that Smith is no longer

good law or has been undermined by subsequent Supreme Court

precedent. Indeed, federal appellate courts continue to cite Smith

for the proposition that "in relation to" is "expansive." See,

e.g., United States v. Brown, 400 F.3d 1242, 1250 (10th Cir. 2005);

United States v. Williams, 344 F.3d 365, 371 (3d Cir. 2003); McNeal

v. United States, 249 F.3d 747, 750 (8th Cir. 2001).

3
Even were we to accept the premise that the re-reading of an
instruction could present a fresh opportunity for a litigant to
object to the instruction, we note that Roberson again failed to
lodge the objection after the court re-read the charge to the jury.

-10-
 Moreover, Roberson's argument that the jury likely

misunderstood "expansive" to mean that the phrase "in relation to"

was intended to enlarge upon the circumstances in which a defendant

may be prosecuted for using or carrying a firearm, is belied when

the instruction is viewed as a whole. See United States v.

DeStefano, 59 F.3d 1, 3 (1st Cir. 1995). Although one definition

of "expansive" is "capable of expanding or tending to expand," The

Am. Heritage Dictionary 624 (4th ed. 2000), another is "broad in

size or extent; comprehensive." Id. Only the latter definition
makes sense in the context of the instruction as a whole. The

sentences immediately following the "expansive" instruction state:

At a minimum ["in relation to"] means that the
firearm must have had some purpose or effect
with respect to the drug trafficking crime.
If a firearm is present simply as a result of
coincidence or accident it cannot be said that
it was used or carried in relation to the drug
traffic[king] offense. The firearm must have
facilitated or have had the potential to
facilitate the drug offense.

Given the limiting language of those sentences, it would be

illogical to read the sentence containing the word "expansive" in

the way Roberson suggests. When read in its entirety, the "in

relation to" instruction adequately and accurately conveys the

meaning of the phrase as described in Smith.

Roberson counters that the jury's mid-deliberation

question illustrates that there was confusion with the instruction.

He argues that the district court therefore erred by not directly

answering the jury's question as he suggested: that "if it is their

conclusion that the gun was either used or carried independent of

-11-
the drug trafficking offense, that would mean that it was not

either used or carried in relation to the drug trafficking crime."

We disagree. As a general rule, whether to provide a

supplementary instruction to the jury "is a matter within the sound

discretion of the trial court." Elliot v. S.D. Warren Co., 134

F.3d 1, 7 (1st Cir. 1998). Here, the court anticipated that the

jury might wrestle with the issue of whether the gun was used or

carried "in relation to" the drug transaction. At Roberson's

behest, the court carefully crafted an instruction, consistent with
Smith, to aid the jury's evaluation of the "in relation to"

requirement. Under the circumstances, it was well within the

court's discretion to eschew "elaborat[ing] on these initial,

entirely correct instructions" and instead, elect simply "to refer

the jury to the original formulation." Id.
This is especially so given the phrasing of the jury

question, which suggested that the jury was putting it to the court

to make the dispositive decision. District courts must exercise

caution in such circumstances. See e.g., Arizona v. Johnson, 351

F.3d 988, 994 (9th Cir. 2003) (recognizing in a similar situation

that a district court must exercise caution, when a "simple

affirmative or negative response might favor one party's position,

place undue weight on certain evidence, or indicate that the trial

judge believes certain facts to be true when such matters should

properly be determined by the jury") (quotation and emphasis

omitted); United States v. Lakich, 23 F.3d 1203, 1209 (7th Cir.

1994) (noting that a district court "would have risked intruding on

-12-
the jury's fact finding" had it given "a simple affirmative answer"

to the jury's question of whether a finding of entrapment on one

count "reflects" on another). We therefore cannot fault the court

for choosing the more cautious alternative of re-reading the

original instruction and letting that instruction stand alone.4

Roberson also challenges the sufficiency of the evidence

supporting the gun charge. "In determining the evidentiary

sufficiency of a guilty verdict, we review the totality of the

evidence in the light most favorable to the government, and then
ask whether any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” United

States v. Bailey, 405 F.3d 102, 111 (1st Cir. 2005) (quotation

marks omitted).

Roberson first challenges the government's evidence
establishing that he used or carried a "firearm" during the drug

transaction.5 See United States v. Taylor, 54 F.3d 967, 975 (1st

4
We reject Roberson's suggestion that United States v.
Bollenbach, 326 U.S. 607 (1946), required the district court to
respond to the jury's question with an explicit answer. In
Bollenbach, the Supreme Court found that the trial court had erred
by responding to a jury question with an erroneous supplemental
instruction. Id. at 612-13. That is precisely the pitfall the
district court endeavored to avoid in this case. See United States
v. Prigmore, 243 F.3d 1, 17 (1st Cir. 2001) ("[W]e have recognized
that, in some instances, attempts to clarify inherently nebulous
concepts can do more harm than good.").
5
Under 18 U.S.C. § 921(a)(3), a "firearm" is defined as:

(A) any weapon (including a starter gun) which
will or is designed or may readily be
converted to expel a projectile by the action
of an explosive; (B) the frame or receiver of
any such weapon; (C) any firearm muffler or
firearm silencer; or (D) any destructive

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Cir. 1995) (noting that 18 U.S.C. § 924(c) "requires proof beyond

a reasonable doubt that the person perpetrating the predicate

offense used a real gun"). He contends that Mena's testimony by

itself is insufficient to prove that the object Roberson handed to

Mena was a real gun because Mena is not an expert on guns and his

lay opinion is not creditworthy, given that it is based on his

observation of the alleged gun at night in a dark car.

Although § 924(c) requires proof that the gun is real,

the government's proof need not "reach a level of scientific
certainty." Id. at 975-76. Descriptive lay opinion testimony can

be sufficient. United States v. Kirvan, 997 F.2d 963, 966-67 (1st

Cir. 1993). Here, Mena's testimony was sufficient to ground the

jury's finding. Although Mena was not a firearms expert, he

testified that he was familiar with handguns, having held them on
several occasions. Mena testified that he had the opportunity to

hold and closely inspect Roberson's handgun. Mena took advantage

of that opportunity, smelling it to see if it had been fired, and

noticing that the serial numbers had been scratched off. At trial,

Mena provided details about the gun (that it looked new and had

chrome on the top with a black plastic bottom), noted that its

design (a plastic bottom) was commonly referred to by his

associates in the drug trade as a "Glock," and stated that it "felt

like a handgun." Although Mena observed the gun at night inside a

car with the interior lights off, such factors go only to the

device. Such term does not include an antique
firearm.

-14-
weight of Mena's testimony, and would not prevent a rational jury

from crediting Mena's opinion. Cf. Taylor, 54 F.3d at 976 (finding

sufficient lay witness testimony by a bank teller and a customer

service representative who "observed the object gripped by [the

defendant] at close range"); Kirvan, 997 F.2d at 966-67 (finding

sufficient lay witness testimony of two individuals who described

seeing the defendant holding what appeared to be a gun, and who

stated that it sounded "heavy" when it fell to the ground).

Roberson also contends that a rational jury could not
have found that Roberson used or carried the gun "in relation to"

a drug trafficking offense because the evidence established, at

most, that he carried the gun for the independent purpose of

offering it to Mena after completion of the drug transaction. He

asserts that his offer to sell the gun to Mena was an entirely
separate and unrelated transaction.

As the jury was instructed, the "in relation to" language

of § 924(c)(1) requires, at a minimum, that the firearm have some

purpose or effect with respect to the drug trafficking crime.

Smith, 508 U.S. at 238. Mere possession of a gun during the course

of criminal conduct does not support a conviction under the

statute. United States v. Plummer, 964 F.2d 1251, 1254 (1st Cir.

1992); see also United States v. Grace, 367 F.3d 29, 35 (1st Cir.

2004). Nonetheless, the phrase has been construed broadly, and

encompasses a variety of situations where the firearm facilitates

or has the potential to facilitate the drug trafficking offense.

See, e.g., Smith, 508 U.S. at 229 (finding that an attempt to

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barter a firearm for drugs satisfied the "in relation to"

requirement); United States v. Luciano-Mosquera, 63 F.3d 1142, 1151

(1st Cir. 1995) (holding that gun kept available "if a contingency

arose or to make [an] escape" was carried "in relation to" the

predicate drug offense). Moreover, facilitation of the underlying

drug offense need not be the defendant's sole purpose for

possessing the weapon. See United States v. Vazquez Guadelupe, 407

F.3d 492, 500 n.4 (1st Cir. 2005) (noting that a sufficient nexus

existed between defendant's possession of a gun and the drug crime
notwithstanding a legitimate explanation for defendant's possession

of the gun -- viz., his employment as a police officer).

Here, at least two permissible grounds existed for the

jury's determination that Roberson used or carried the firearm "in

relation to" the drug transaction. The jury could have reasoned
that Roberson brandished the gun to embolden himself or to

intimidate Mena. See United States v. Eaton, 890 F.2d 511, 512

(1st Cir. 1989). At their first meeting, Roberson informed Mena

that he had a handgun to trade. A rational jury could infer that

Roberson intended that statement to put Mena on notice that he

would be armed on the day of the drug transaction. Sure enough,

during the transaction, before Mena finished paying for the crack,

Roberson pulled the handgun from his waistband, pointed it in

Mena's direction, and proclaimed, "that's what I'm talking about."

Further demonstrating his deadly potential, Roberson informed Mena

that, while he does not "waste shells," he does "shoot niggas."

Although the evidence that Roberson subsequently handed the gun to

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Mena may weaken the theory that Roberson was using the gun to

intimidate Mena, the above evidence was sufficient to ground the

jury's verdict. See Plummer, 964 F.2d at 1255 (noting that while

the facts may permit multiple inferences, "the factfinder is

entitled to choose among reasonable interpretations of the

evidence").

Even if the jury believed that the gun was carried only

for the purpose of attempting to sell it to Mena, it still could

have reasonably concluded that the gun was carried "in relation to"
the drug transaction. At the first meeting, when Mena asked

Roberson for crack, Roberson mentioned that he had a gun he wanted

to trade. The next day, as Mena was counting his money, Roberson

handed the gun to Mena for his inspection and stated that he was

nervous about carrying the gun because the serial numbers were
scratched off. Indeed, it appeared to Mena that Roberson was

anxious to get rid of the gun. From this testimony, the jury could

have reasonably concluded that the opportunity to trade the gun was

an incentive for Roberson to agree to Mena's request for crack.

Cf. United States v. Lipford, 203 F.3d 259, 267 (4th Cir. 2000)

(holding that in order to convince a seller to take the risks

inherent in the sale of drugs, "a drug purchaser can often 'sweeten

the pot,' offering to purchase not only drugs, but other illegal

goods as well"). On these facts, a jury could have reasonably

concluded that, at least in Roberson's mind, the gun deal and the

drug deal were intertwined.

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 B. Improper testimony

During its case-in-chief, the government asked Mena

whether he knew "which is more addictive, crack or cocaine powder?"

The district court overruled Roberson's subsequent objection, and

Mena answered, "I believe crack is more addictive." When asked

which drug is "stronger," Mena again answered, "crack." Mena then

testified that when he had been a drug dealer, he had sold powder

cocaine, but that Roberson had been a crack dealer. During its

closing argument, the government stated, "Eric Mena told you that
he was a cocaine dealer and that Kurt Roberson was a crack dealer.

Eric Mena also told you that as between cocaine and crack, crack is

more potent and addictive."

On appeal, Roberson contends that the government failed

to lay a sufficient foundation to ground Mena's opinion because it
did not establish that Mena was an expert on the addictive

properties of cocaine, see Fed. R. Evid. 702, or offer evidence

about Mena's lay perceptions as to the different addictive

qualities or relative potency of crack versus powder cocaine, see

Fed. R. Evid. 701. Roberson contends that the improperly admitted

evidence was both misleading (in that it is the difference in the

typical method of administration, not any difference in the

inherent properties of the two forms of cocaine, that causes an

increased risk of addiction with crack)6 and highly prejudicial (in

that the improper testimony and closing argument was aimed at

6
See United States Sentencing Commission Report to Congress:
Cocaine and Federal Sentencing Policy, 19 (May 2002).

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bolstering Mena's character, while degrading Roberson's). Because

Mena's testimony was critical to the government's case, Roberson

argues, a new trial is necessary. The government concedes,

correctly, that it did not lay an adequate foundation to ground

Mena's testimony. Nevertheless, the government argues that the

error was harmless in light of the overwhelming evidence of

Roberson's guilt.

We agree with the government that the error was harmless

because it is "highly probable that the error did not influence the
verdict." United States v. Flemmi, 402 F.3d 79, 95 (1st Cir. 2005)

(quotation marks omitted) (describing the harmless error standard

for non-constitutional evidentiary errors). Roberson attempts to

rebut the government's "overwhelming evidence" argument by pointing

to various weaknesses in the government's case. For instance,
Roberson asserts, the testimony of agents Kappler and Quinn

identifying Roberson was fallible. But even assuming that this

testimony was not overwhelming by itself, it is notable that all of

the government's evidence, including the testimony of Kappler and

Quinn, and the recorded audio and video evidence, corroborates

Mena's account of what happened. Given the wealth of evidence

supporting Mena's testimony, it is highly unlikely that his

veracity, at least with respect to the events of March 10 and 11,

2003, was seriously questioned by the jury. Moreover, we doubt

that the jury would view the relative addictiveness of crack versus

powder cocaine to be an important factor for drawing its

conclusions about the character of the two men. Mena admitted on

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the stand that he was a dealer of, among other drugs, powder

cocaine. It is highly improbable that any diminutive boost Mena's

credibility may have received from being cast as a dealer of a less

addictive form of cocaine would have influenced the jury's

verdicts.
C. Sentence

At sentencing, the district court heard argument

concerning whether the mandatory minimum sentence on the drug

charge should be doubled from ten years to 20 years in light of
Roberson's 1996 Massachusetts conviction for distribution of

marijuana in violation of Mass. Gen. Laws ch. 94C, § 32D. See 21

U.S.C. § 841(b)(1)(A) (providing a 20-year mandatory minimum for

any person convicted under § 841(a) that has "a prior conviction

for a felony drug offense"). Roberson argued that the prior
Massachusetts conviction was not a "felony drug offense" under §

841(b)(1)(A) because Massachusetts law categorized the offense as

a misdemeanor. The district court rejected Roberson's argument,

finding that the CSA clearly defines a "felony drug offense" as any

prior conviction for an offense punishable by more than one year of

imprisonment. See 21 U.S.C. § 802(44). Because Roberson's 1996

Massachusetts conviction was punishable by up to two years in

prison, see Mass. Gen. Laws ch. 94C, § 32C, the court found that

it qualified as a "felony drug offense" notwithstanding the state's

classification of the offense as a misdemeanor.

On appeal, Roberson contends that the district court

erred by applying the 20-year mandatory minimum to the drug charge.

-20-
Roberson's arguments hinge on the premise that two defined terms

are triggered by § 841(b)(1)(A). Citing to several canons of

statutory construction and to the legislative history of the CSA,

he argues that the definition of "felony drug offense" contained in

§ 802(44) is modified by the definition of "felony" contained in §

802(13). See 21 U.S.C. § 802(13) ("The term 'felony' means any

Federal or State offense classified by applicable Federal or State

law as a felony."). Roberson contends that both of these

definitions must be satisfied to trigger § 841(b)(1)(A)'s 20-year
mandatory minimum. Under Roberson's interpretation, a prior

conviction is a "felony drug offense" under § 841(b)(1)(A) only if

the prior drug offense is both (1) punishable by more than one year

in jail, see id. § 802(44), and (2) classified as a felony by the

relevant federal or state authority, see id. § 802(13).
A recent D.C. Circuit decision supports Roberson's

position. See United States v. West, 393 F.3d 1302 (D.C. Cir.

2005).7 Like Roberson, the defendant in West had been convicted

under 21 U.S.C. § 841(a) and (b)(1)(A)(iii) for distributing more

than 50 grams of cocaine base. The district court increased the

mandatory minimum from ten to 20 years based on a prior drug

conviction in Maryland that was classified by that state as a

misdemeanor, but which was punishable by up to four years in

prison. On appeal, the D.C. Circuit vacated the defendant's 20-

year sentence, holding that the definition of "felony drug offense"

7
To our knowledge, the D.C. Circuit is the only federal
appellate court to have addressed this issue to date.

-21-
provided by § 802(44) must be read in conjunction with the

definition of "felony" provided by § 802(13). The D.C. Circuit

found the defendant's position -- that Congress intended "felony

drug offense" to incorporate the definitions contained in both §

802(13) and 802(44) -- was "at least as plausible" as the

government's -- that § 802(44) alone controls. Id. at 1315.

Invoking the rule of lenity, the court held that the enhancement

provision of § 841(b)(1)(A) is limited "to those instances in which

the prior drug offense is both punishable by more than one year and
classified as a felony by controlling authority." Id. Roberson

argues that, even if we do not adopt his construction of the

statute, we should follow the D.C. Circuit and apply the rule of

lenity to resolve the issue in his favor.

Roberson's challenge to the applicability of the 20-year
mandatory minimum sentence presents pure legal questions of

statutory construction. As such, our review is de novo. Doyle v.

Huntress, Inc., 419 F.3d 3, 8 (1st Cir. 2005). "As in any case of

statutory construction, our analysis begins with the language of

the statute." Zimmerman v. Cambridge Credit Counseling Corp., 409

F.3d 473, 475 (1st Cir. 2005) (quoting Hughes Aircraft Co. v.

Jacobson, 525 U.S. 432, 438 (1999)). We accord the statutory text

"its ordinary meaning by reference to the 'specific context in

which that language is used, and the broader context of the statute

as a whole.'" Mullane v. Chambers, 333 F.3d 322, 330 (1st Cir.

2003) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 341

(1997)). If the statutory language provides a clear answer, the

-22-
inquiry ends. See Hughes, 525 U.S. at 438; Sepulveda v. United

States, 330 F.3d 55, 64 (1st Cir. 2003).

The wording of the provisions at issue, read in the

context of the statute as a whole, lead us to conclude that, for

the purposes of the CSA, the term "felony drug offense" is a term

of art separate and distinct from the term "felony." In our view,

the definition of "felony drug offense" contained in § 802(44)

unambiguously controls for the purposes of determining whether the

penalty enhancement in § 841(b)(1)(A) is triggered. We therefore
reject Roberson's arguments and decline to invoke the rule of

lenity. See United States v. Councilman, 418 F.3d 67, 83 (1st Cir.

2005) (en banc) (holding that the rule of lenity "only applies if

'there is a grievous ambiguity or uncertainty about the statute'")

(quoting Muscurello v. United States, 524 U.S. 125, 138-39 (1998)).
We begin our analysis by delineating the CSA's structure.

In 1970, to consolidate the assorted drug laws then on

the books and to enhance federal drug enforcement powers, Congress

enacted the Comprehensive Drug Abuse Prevention and Control Act

(the "1970 Act"). See Pub. Law No. 91-513, 84 Stat. 1236; see

generally Gonzales v. Raich, 545 U.S. 1 (2005). The Act is

subdivided into three titles. The CSA, established in Title II,

addresses the control of drugs and the enforcement of drug laws,

see 21 U.S.C. §§ 801-904, while Title III, aptly named the

Controlled Substances Import and Export Act ("Import Act"),

concerns their import and export to and from the United States, see

id. §§ 951-971.

-23-
 Part D of the CSA lays out the substantive offenses and

the attendant penalties. As is relevant here, Part D makes it

unlawful "for any person knowingly or intentionally -- (1) to

manufacture, distribute, or dispense or possess with intent to

manufacture, distribute or dispense a controlled substance." Id.

§ 841(a)(1). Pursuant to the "penalties" provision of that

section, "any person who violates" § 841(a) through conduct

involving, inter alia, "50 grams or more of a mixture" containing

cocaine base, "shall be sentenced to a term of imprisonment which
may not be less than 10 years." Id. § 841(b)(1)(A)(iii). Further

on, the same subsection provides that "[i]f any person commits such

a violation after a prior conviction for a felony drug offense has

become final, such person shall be sentenced to a term of

imprisonment which may not be less than 20 years." Id. (Emphasis
added).

Section 802 provides definitions for the terms used in

the CSA and the Import Act. The two relevant definitions provide

as follows:

The term "felony" means any Federal or State
offense classified by applicable Federal or
State law as a felony. . . .

The term "felony drug offense" means an
offense that is punishable by imprisonment for
more than one year under any law of the United
States or of a State or foreign country that
prohibits or restricts conduct relating to
narcotic drugs, marihuana, or depressant
stimulant substances.

Id. § 802(13), (44).

-24-
 The most logical interpretation of § 841(b)(1)(A), we

believe, is that the phrase "felony drug offense" is a term of art

invoked intentionally by Congress to incorporate by reference the

specific definition contained in § 802(44). Cf. United States v.

Cordoza-Estrada, 385 F.3d 56, 58 (1st Cir. 2004) (holding that the

statutory definition of the term "aggravated felony" in 8 U.S.C. §

1101(a)(43)(F) "is a term of art that includes within its ambit

certain misdemeanors under state law that carry a sentence of at

least one year”); see also Stenberg v. Carhart, 530 U.S. 914, 942
(2000) ("When a statute includes an explicit definition, we must

follow that definition, even if it varies from that term's ordinary

meaning."). Because the term "felony drug offense" is specifically

defined in § 802(44), and § 841(b)(1)(A) makes use of that precise

term, the logical, commonsense way to interpret "felony drug
offense" in § 841(b)(1)(A) is by reference to the definition in §

802(44). See O'Connell v. Shalala, 79 F.3d 170, 176 (1st Cir.

1996) ("[C]ourts are bound to afford statutes a practical,

commonsense reading.").

Roberson argues that § 802(44)'s definition must be read

as incorporating the definition of "felony" in § 802(13) because

the term "felony drug offense" contains within it the defined term

"felony." Because the definition of a defined term is ordinarily

triggered by every reference to that term within a statute, see 1A

& 2A Norman J. Singer, Sutherland: Statutes and Statutory

Construction, §§ 20:8, 47:7 (6th ed. 2000), Roberson argues, the

-25-
definition of "felony" is embedded in both § 802(44)'s definition

of and § 841(b)(1)(A)'s reference to "felony drug offense."

But the term being defined is not ordinarily read as

being itself a part of the definition of the term. If Congress had

intended the definition in § 802(44) to cross-reference the

definition in § 802(13), it could have indicated such a cross-

reference in the text of the definition. For example, Congress

could have written § 802(44) to state that "the term 'felony drug

offense' means a felony . . . ."8 Indeed, such internal cross-
referencing, defining one term by reference in the text of the

definition to another defined term, is not unusual in the United

States Code. See, e.g., 18 U.S.C. § 1961(5) (defining a "pattern

of racketeering activity" as requiring, inter alia, "at least two

acts of racketeering activity," thereby expressly cross-referencing
the separately defined "racketeering activity" in § 1961(1)); 18

U.S.C. § 1956(c)(4) (defining a "financial transaction" as, inter

alia, "a transaction," thereby expressly incorporating the

definition of "transaction" in § 1956(c)(3));9 see Zimmerman, 409

F.3d at 475-76 (looking to Congress's method of drafting statutes

in other parts of the Code as an aid in interpreting statutory

text).

8
Such a formulation would have been harmonious with the pre-
1994 version of § 841(b)(1)(A) which defined a “felony drug
offense” as “an offense that is a felony . . . .” See infra note
10.
9
Roberson does not cite any examples where Congress has cross-
referenced to a defined term by placing that defined term within
another defined term (as opposed to placing it within the text of
the definition).

-26-
 Had Congress intended to require both definitions for the

purposes of § 841(b)(1)(A), but also wished to preserve a distinct

definition of "felony drug offense" for the purposes of other

provisions, it could have accomplished its purposes within the text

of § 841(b)(1)(A). For example, Congress could have written §

841(b)(1)(A) to trigger a 20-year mandatory minimum whenever any

person commits a violation of § 841(a) "after a prior conviction

for a felony drug offense that is classified by applicable Federal

or State law as a felony has become final.”
Congress did not use any of these conventions. Thus, we

are left with a statutory provision that specifically references a

defined term, “felony drug offense.” Where, as here, Congress

defines what a particular term "means," that definition controls to

the exclusion of any meaning that is not explicitly stated in the
definition, see Sutherland § 47:7 (citing Colautti v. Franklin, 439

U.S. 379, 392 & n.10 (1978)), and regardless of the ordinary

meaning of the words, see id. at § 20:8 (citing Packard Motor Car

Co. v. N.L.R.B., 330 U.S. 485 (1947)); Cordoza-Estrada, 385 F.3d at

58.

The district court's construction, that § 802(44) alone

provides the definition of "felony drug offense," is further

supported by an analysis of the statute as a whole. See Shalala,

79 F.3d at 176 ("[A] court engaged in the task of statutory

interpretation must examine the statute as a whole, giving due

weight to design, structure, and purpose as well as to aggregate

language."). Reviewing the substantive provisions in the CSA

-27-
reveals that the term "felony drug offense" is utilized only in §

841(b)(1). The term also appears in a parallel provision of the

Import Act. See 21 U.S.C. § 960(b). In both statutes, the term is

used solely to specify the type of prior conviction that will

trigger a mandatory sentence enhancement. In some instances, the

sentencing floor is enhanced. See id. §§ 841(b)(1)(A) and (B);

960(b)(1) and (2) (all doubling the minimum sentence when the

defendant's violation of the subject section was committed "after

a prior conviction for a felony drug offense has become final").
In others, the sentencing ceiling is enhanced. See id. §§

841(b)(1)(C) and (D); 960(b)(3) (all increasing the potential

maximum sentence when the defendant's violation of the subject

section was committed "after a prior conviction for a felony drug

offense has become final"). In all events, a prior conviction for
a "felony drug offense" will result in a significant upward re-

calibration of the statutorily mandated sentencing range.

In contrast, the term "felony" (without the accompanying

words "drug offense") is utilized extensively throughout the CSA

for a variety of purposes. See, e.g., 21 U.S.C. §§ 824(a)(2)

(providing circumstances under which a registration to manufacture

or distribute controlled substances may be revoked); 841(e)

(providing circumstances in which an injunction is available under

§ 841); 843(b) (forbidding the use of a communication facility to

accomplish the commission of a felony); 843(d)(1-2) (setting a

maximum sentence for violations of § 843 for persons with a prior

felony drug conviction); 848(c)(1) (defining a "continuing criminal

-28-
enterprise" as involving a felony violation); 853(d) (creating a

rebuttable presumption in favor of forfeiture against any person

convicted of a felony); 862a(a) (denying eligibility for certain

assistance and benefits programs for any person convicted of an

offense classified as a felony); 878(a)(3) (granting drug

enforcement officers the power to make warrantless arrests where

there is probable cause to believe a felony has been committed).

Congress's decision to use the precise term "felony drug

offense" in § 841(b)(1), instead of the more broadly used term
"felony," evidences an intent to distinguish these sentence

enhancement provisions from the other provisions that refer to the

generic "felony." See Citizen's Awareness Network, Inc. v. United

States, 391 F.3d 338, 346 (1st Cir. 2004) ("The principle is clear

that Congress's use of differential language in various sections of
the same statute is presumed to be intentional and deserves

interpretative weight."); Sutherland, § 46:05 ("[W]here the

legislature has carefully employed a term in one place and excluded

it in another, it should not be implied where excluded."). Given

the structure of the CSA, and the targeted use of the term "felony

drug offense," the logical inference is that Congress intended the

statutory enhancements in § 841(b)(1)(A) to be triggered by

reference to § 802(44) alone. As the government has suggested,

Congress may have wished to avoid the possibility that the

substantial consequences of the mandatory sentence enhancements in

-29-
§ 841(b)(1)(A) would turn on the happenstance of a state's

classification of a prior offense.10

Roberson's invocations of the canons of statutory

construction do not persuade us that the statute is ambiguous.

Roberson argues that, because the definitions in § 802(13) and

802(44) are part of the same definitional section and address the

10
Prior to 1988, § 841(b)(1)(A) provided that a prior
conviction for, inter alia, "a felony under any . . . law of a
State" would trigger enhanced penalties. Pub. Law No. 99-570, §
1002, 100 Stat. 3207, 3207-4 (1986) (emphasis added). The term
"felony drug offense" was added to § 841(b)(1)(A) in 1988 and the
definition was placed directly in the substantive subsection, but
the applicability of the penalty enhancement still depended on the
classification of the prior offense as a felony. See Pub. Law No.
100-690, § 6452(a)(2), 102 Stat. 4181, 4371 (1988) ("[T]he term
'felony drug offense' means an offense that is . . . a felony under
any law of a State . . . ."). In 1994, Congress amended the
substantive enhancement provisions of both the CSA and the Import
Act so that they all uniformly used the term "felony drug offense."
See Pub. Law No. 103-322, § 90105, 108 Stat. 1796, 1987-88 (1994).
It also replaced the classification-based definition of "felony
drug offense" with the new sentence-based definition of the term
that presently resides in § 802(44). See id.
Roberson contends that the 1994 amendment was intended merely
to make uniform the parallel provisions in the CSA and the Import
Act. But such a structural intent does not preclude an additional
substantive intent: to replace the old classification-based
definition of "felony drug offense" with a new definition which
considers only the potential length of the sentence. See
Zimmerman, 409 F.3d at 476 (noting that a court "may assume that .
. . Congress was aware" of the previously existing statutory
provisions, and thus that its choice of "a different formulation"
was intentional). Such an intent makes sense in the context of the
evolving nature of the CSA. Initially, the district courts were
given broad leeway in fashioning sentences, but Congress reversed
course in 1984 by enacting mandatory penalties to avoid sentencing
disparities. See Todd E. Gonyer, Federal Sentencing in a Post-
Chapman World: What is a "Mixture or Substance" Anyhow?, 46 U. Kan.
L. Rev. 983, 984-88 (1998). Subsequent amendments in the 1980's
increased the consequences of those mandatory penalties. See id.
Thus, it would not be surprising to learn that Congress intended
the 1994 amendments to ensure that the mandatory recidivist penalty
provisions would be applied uniformly not only across statutory
lines, but also across state lines.

-30-
same subject matter -- the classification of offenses -- they are

coequal and should be read in pari materia (i.e., they should be

construed together). See United States v. Kelley, 712 F.2d 884,

889 (1st Cir. 1983). Moreover, continues Roberson, if we do not

read the definition of "felony" in conjunction with the definition

of "felony drug offense," then the definition of "felony" will

become superfluous. See United States v. Ven-Fuel, Inc., 758 F.2d

741, 751-52 (1st Cir. 1985) ("All words and provisions of statutes

are intended to have meaning and are to be given effect, and no
construction should be adopted which would render statutory words

or phrases meaningless, redundant or superfluous.").

The above-cited canons, as well as the canon, cited by

the government, that a specific provision governs as against a

general provision, see Morales v. Trans World Airlines, Inc., 504
U.S. 374, 384-85 (1992), are corollaries of the cardinal rule that

courts must strive to harmonize all the provisions of a statute to

give them all force and effect, see Sutherland, § 46:06. Absent a

conflict between the two provisions, resort to the canons (which

are, after all, only tools of construction) is unnecessary. Here,

we find no tension between the definition of "felony" and the

definition of "felony drug offense." Viewing the statute as a

whole, the two separate definitions are harmonized by recognizing

that they are used for different purposes. The structure of the

statute, and the differential use of the two terms, lead us to

infer that the terms were intended to carry independent meanings

for independent purposes. Applying the doctrine of in pari materia

-31-
to merge two definitional clauses would thus defeat their very

purposes. Cf. Kelley, 712 F.2d at 889 (holding that two

substantive provisions aimed at regulating the same area of conduct

-- disqualifying judges with a personal bias against a party --

should be construed in pari materia).

Because “felony drug offense” is a defined term of art

and we have found nothing in sections 802(44) or 841(b)(1)(A)

indicating a Congressional intent to incorporate the definition of

"felony" in the term "felony drug offense," we find no statutory

ambiguity. The 20-year mandatory minimum contained in §

841(b)(1)(A)(iii) is triggered when the defendant has a prior

conviction for an “offense that is punishable by imprisonment for

more than one year under any law of the United States.”

Accordingly, we find that the district did not err in applying the
20-year mandatory minimum sentence to the drug charge.11

11
Roberson also argues that we should vacate his sentence
because the district court violated his Sixth Amendment rights by
imposing the 20-year mandatory minimum sentence based on a prior
conviction that the government did not prove to the jury beyond a
reasonable doubt. Although this circuit has previously read
Almendarez-Torres v. United States, 523 U.S. 224 (1998), to
foreclose such an argument, see United States v. Ivery, 427 F.3d
69, 75 (1st Cir. 2005), Roberson urges us to re-examine the issue
in light of a trio of recent Supreme Court decisions, Shepard v.
United States, 544 U.S. 13 (2005); United States v. Booker, 543
U.S. 220 (2005); and Blakely v. Washington, 542 U.S. 296 (2004).
Roberson contends that these three cases combine to undermine the
continuing validity of Almendarez-Torres and our circuit precedent.
We recently rejected this argument sitting as an en banc court.
See United States v. Jimenez-Beltre, 440 F.3d 514, 520 (1st Cir.
2006) (en banc) ("[W]e are bound to follow [Almendarez-Torres]
until it is expressly overruled.").

-32-
 III.

For the foregoing reasons, we affirm Roberson's

convictions and sentence.

-33-