          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                      FILED
                                                                   January 21, 2009
                                   No. 07-41217
                                 c/w No. 07-41237               Charles R. Fulbruge III
                                Summary Calendar                        Clerk


UNITED STATES OF AMERICA

                                              Plaintiff-Appellee

v.

LUIS ARIEL AGUILAR

                                              Defendant-Appellant


                 Appeals from the United States District Court
                      for the Southern District of Texas
                         USDC No. 2:04-CR-125-ALL
                         USDC No. 5:07-CR-832-ALL



Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
      Luis Ariel Aguilar was convicted by a jury of two counts of transporting
illegal aliens for private financial gain in violation of 8 U.S.C. § 1324(a)(1)(A)(ii)
and (B)(i), and he was sentenced to concurrent 57-month terms of imprisonment
on each count, to be followed by concurrent three-year terms of supervised
release. Aguilar timely appealed the judgment of the district court. Because of

      *
      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should not be published and is not precedent except under the limited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. 07-41217
                                c/w No. 07-41237

his conviction on these charges, the district court also revoked Aguilar’s
supervised release related to a 2004 conviction of transportation of an unlawful
alien. Aguilar gave timely notice of his appeal from that order as well, and the
two appeals have been consolidated.
      During Aguilar’s jury trial, Government witnesses testified regarding
Aguilar’s prior arrests for alien smuggling and Aguilar’s prior conviction for
transporting illegal aliens. In addition, Aguilar was cross-examined regarding
a prior arrest. Aguilar contends that the district court reversibly erred in
admitting this testimony. He contends that the extrinsic conduct had “no
probative value” because other testimony by Government witnesses was
sufficient to show that he had a plan to circumvent the border patrol checkpoint.
Aguilar also contends that his prior bad acts were prejudicial because they were
criminal in nature and because the district court allowed the Government to
introduce cumulative evidence of multiple previous incidents.
      The admission of evidence under FED. R. EVID. 404(b) is reviewed under
a heightened abuse-of-discretion standard. United States v. Buchanan, 70 F.3d
818, 831 (5th Cir. 1995). To be admissible under Rule 404(b), extrinsic offense
evidence (1) must be “relevant to an issue other than the defendant’s character”
and (2) “must possess probative value that is not substantially outweighed by its
undue prejudice and must meet the other requirements of [FED. R. EVID.] 403.”
United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en banc). Because
Aguilar’s plea of not guilty placed his intent at issue for purposes of Rule 404(b),
see United States v. Pompa, 434 F.3d 800, 805 (5th Cir. 2005), his claim turns on
whether the probative value of the evidence is substantially outweighed by its
undue prejudice.
      Aguilar’s prior conviction and arrests were probative because they were
similar to the charged offense; indeed, the circumstances of his prior arrest on
May 14, 2007, involved the same maroon Suburban along the same I-35 corridor


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                                  No. 07-41217
                                c/w No. 07-41237

as the instant offense conduct. See Beechum, 582 F.2d at 915. In addition, the
extrinsic evidence was not of a “heinous nature” such that it would “incite the
jury to irrational decision by its force on human emotion.” Id. at 917. Aguilar’s
prior conviction and 33-month prison term for transporting illegal aliens
lessened the likelihood of the jury desiring to punish Aguilar for his prior
offenses. See id. There is no reason to believe that the admission of the extrinsic
evidence was “likely to confuse the issues, mislead the jury, cause undue delay,
or waste time.” Id. Aguilar does not dispute that the prejudicial effect of
admitting the extrinsic evidence was mitigated by the district court’s limiting
instructions; nor does he contend that the instructions were otherwise
inadequate. See United States v. White, 972, F.2d 590, 599 (5th Cir. 1992).
Thus, Aguilar has not shown that the district court abused its discretion in
admitting the evidence. See Beechum, 582 F.2d at 914, 917 & n.23.
      Aguilar contends that, in the event that his conviction is vacated, the court
should also vacate the district court’s order revoking his supervised release.
Because we have determined that the instant conviction should be affirmed, it
follows that the district court’s order revoking Aguilar’s supervised release
should also be affirmed. See United States v. Grandlund, 71 F.3d 507, 509 (5th
Cir. 1995).
      AFFIRMED.




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