* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

May 31, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-50299

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CESAR TAVAREZ-MODESTO, also known as Cesar Tavarez,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Western District of Texas

USDC No. P-03-CR-303-1

--------------------

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
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
No. 04-50299

-3-

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
No. 04-50299

-4-

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.