United States v. Tavarez-Modesto , 132 F. App'x 537 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 31, 2005
Charles R. Fulbruge III
Clerk
No. 04-50299
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CESAR TAVAREZ-MODESTO, also known as Cesar Tavarez,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. P-03-CR-303-1
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Before REAVLEY, JOLLY and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:*
Cesar Tavarez-Modesto (“Tavarez”) appeals his conviction and
sentence for possession with intent to distribute more than 100
kilograms of marijuana. Tavarez argues that the district court
abused its discretion by admitting evidence of his prior arrest
for possession of marijuana pursuant to FED. R. EVID. 404(b).
Tavarez additionally asserts that the district court erred by
applying a three-level enhancement to his sentence for his being
a manager or supervisor. For the first time on appeal, Tavarez
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 04-50299
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contends that the application of the three-level enhancement was
unconstitutional under Blakely v. Washington, 124 S.Ct. 2531(2004) and United States v. Booker, 125 S. Ct. 738 (2005).
Because Tavarez asserted that he was accidentally present at
the scene of the crime, his intent was at issue and the admission
of evidence of extrinsic acts could therefore be relevant to
intent. See United States v. Wilwright, 56 F.3d 586, 589 (5th
Cir. 1995). As the prior arrest and the charged offense both
involved Tavarez’s intent to smuggle marijuana near Presidio,
Texas, the evidence was relevant to an issue other than
character. See United States v. Gordon, 780 F.2d 1165, 1173 (5th
Cir. 1986); United States v. Beechum, 582 F.2d 898, 911 (5th Cir.
1978) (en banc).
The facts surrounding the prior arrest and the charged
offense were similar and involved the same intent. The district
court issued a limiting instruction regarding the evidence of the
prior arrest both at the time the evidence was presented and in
the jury charge. Additionally, the presentation of the evidence
of the prior arrest at trial did not occupy a significant portion
of the trial, the prior arrest was not for a violent crime or a
crime of greater magnitude than the charged offense, and the jury
is presumed to have followed the district court’s instruction
limiting its consideration of the prior arrest. Accordingly, the
prejudicial effect did not greatly outweigh the probative value.
See United States v. Hernandez-Guevara, 162 F.3d 863, 872 (5th
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Cir. 1998); United States v. Scott, 48 F.3d 1389, 1396-97 (5th
Cir. 1995); Beechum, 582 F.2d at 914. The district court did not
abuse its discretion by admitting the evidence. See Beechum, 582
F.2d at 911.
Following Booker, we continue to review the district court’s
application of the guidelines de novo and findings of fact for
clear error. See United States v. Villegas, __ F.3d __, No. 03-
21220, 2005 WL 627963 at *2 (5th Cir. Mar. 17, 2005); United
States v. Villanueva, __ F.3d __, No. 03-20812, 2005 WL 958221 at
*9 n.9 (5th Cir. Apr. 27, 2005). A district court’s
determination that a defendant qualifies for an adjustment based
on his role in the offense pursuant to U.S.S.G. § 3B1.1 is a
factual finding reviewed for clear error. United States v.
Miranda, 248 F.3d 434, 446 (5th Cir. 2001).
Given the evidence that Tavarez guided a group of people
transporting marijuana and was to receive greater compensation
than the others in the group, the district court did not clearly
err by applying a three-level enhancement to Tavarez’s sentence
pursuant to U.S.S.G. § 3B1.1(b). See United States v. Palomo,
998 F.2d 253, 257-58 (5th Cir. 1993); U.S.S.G. § 3B1.1, comment.
(n.4).
Because Tavarez did not raise the Booker issue below, we
review this issue for plain error only. See United States v.
Mares, 402 F.3d 511, 520 (5th Cir. 2005), petition for cert.
filed, (U.S. Mar. 31, 2005)(No. 04- 9517). Tavarez has not
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demonstrated that the district court would have imposed a
different or a lesser sentence if it had been guided by the
Booker holding. See United States v. Bringier, __ F.3d __, No.
04-30089, 2005 WL 730073 at *6 n.4 (5th Cir. Mar. 31, 2005).
Therefore, Tavarez has not shown that his sentence is plainly
erroneous. See Mares, 402 F.3d at 521-22.
AFFIRMED.