     Case: 12-30340   Document: 00512364346     Page: 1   Date Filed: 09/05/2013




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

                                                                   FILED
                                                              September 5, 2013

                                 No. 12-30340                     Lyle W. Cayce
                                                                       Clerk

UNITED STATES OF AMERICA,

                                           Plaintiff – Appellee
v.


JOSHUA JERMAINE KINCHEN,

                                           Defendant – Appellant



                 Appeal from the United States District Court
                     for the Middle District of Louisiana


Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
HAYNES, Circuit Judge:
      A jury found Defendant Joshua Jermaine Kinchen (“Joshua”) guilty of
knowingly distributing at least 50 grams of cocaine base in violation of
21 U.S.C. § 841(a)(1). Joshua appeals, contending (1) the district court abused
its discretion in admitting evidence of a prior possession of a distributable
amount of cocaine and his statement during that prior arrest that the only way
he knew how to earn a living to support his family was selling drugs; (2) the
district court erred in refusing to allow a witness to invoke the Fifth Amendment
in the presence of the jury; and (3) the district court abused its discretion by
     Case: 12-30340       Document: 00512364346         Page: 2     Date Filed: 09/05/2013




                                       No. 12-30340

sentencing Joshua to a term of imprisonment above the Guidelines’
recommended range. We AFFIRM.
                                              I
       Federal Bureau of Investigation (“FBI”) Agent Bret Stiles worked with
local police in connection with the investigation of a drug-trafficking
organization. The target of the investigation was Roger Brooks (“Roger”), the
head of the organization. Stiles paid Quamlisha Brooks (“Quamlisha”) for
services as a confidential informant. At Stiles’ direction, Quamlisha arranged
to purchase two and one-quarter ounces of cocaine base from Roger.
       Quamlisha contacted Roger to arrange the drug deal. Quamlisha was on
the telephone with Roger while driving to a nearby convenience store to
purchase the cocaine. She parked her car at a gas pump next to a maroon Ford
Expedition with license plate number OIC578.1 Still on the phone with Roger,
the driver of the Expedition got her attention and identified himself as “Lil’
Maine,” and Quamlisha asked Roger if he sent this individual to sell her the
cocaine instead of coming himself. Quamlisha handed the telephone to the
Expedition’s driver. Roger verified the seller, and the drug sale occurred.
       Leaving the store, Quamlisha called agent Stiles, who was nearby
observing the transaction, and told Stiles the driver was not Roger, as they both
had expected. Stiles followed the Expedition to Old River Road, the street
Joshua lived on with his brother, Nathaniel Kinchen (“Nathaniel”), and then
called local police to see if they knew anyone who used the nickname “Little
Maine.” A detective at the police station believed that Joshua was known as


       1
        The jury received a stipulation of fact revealing that Joshua operated this vehicle in
some instances during July and August 2009.

                                              2
    Case: 12-30340     Document: 00512364346     Page: 3   Date Filed: 09/05/2013




                                  No. 12-30340

“Little Maine.”   On the same day as the drug transaction, Stiles showed
Quamlisha a photograph of Joshua and asked, “Who is this?” She identified the
person in the photograph as the Expedition’s driver. Quamlisha also selected
the same photograph of Joshua out of a photographic lineup seven months later.
A single count indictment charged Joshua with distributing 50 grams or more
of cocaine base, in violation of 21 U.S.C. § 841(a)(1). Joshua pled not guilty and
trial ensued.
      Prior to trial, the Government moved to introduce evidence that Joshua
had a prior conviction for possession of cocaine. Ten months prior to the charged
offense, in a separate incident, a detective, Corporal John Johnson, stopped and
searched Joshua and found 21 grams of crack cocaine and $3522 cash in his
pocket. Joshua was convicted for that possession in July 2009, a month before
the charged offense.    The Government also sought to admit a concurrent
statement made by Joshua to Johnson. According to Johnson, Joshua said he
sold crack cocaine “because he did not know how to do anything else and that he
had mouths to feed.”
      The district court held multiple pre-trial hearings considering the
admissibility of Johnson’s testimony. The district court held that both the
possession and the concurrent statement would be admissible, subject to the
condition that the Government make no reference to Joshua’s coincident arrest
or conviction. The Government agreed that it would not introduce evidence of
Joshua’s 2009 conviction, but specified that Johnson would testify that he found
crack cocaine on Joshua and repeat the statement that Joshua made to him.
Over Joshua’s objection, the district court ruled that the evidence of Joshua’s
prior possession and statement was intrinsic to the crime charged. The court


                                        3
    Case: 12-30340    Document: 00512364346     Page: 4   Date Filed: 09/05/2013




                                 No. 12-30340

alternatively ruled that the evidence was admissible under Rule 404(b) of the
Federal Rules of Evidence as evidence of identity, motive, or intent.
      At trial, Joshua contended that his brother Nathaniel, who looks similar
to him, was the driver of the Expedition. In fact, Roger testified that he knew
Nathaniel, not Joshua, as “Lil’ Maine” and “Maine Maine.” Roger testified that
on the day of the transaction, he was leaving town and called Nathaniel with
instructions to obtain cocaine for sale to Quamlisha. Roger spoke to both
Nathaniel and Quamlisha near the time of the exchange, but Roger admitted
that he was not paying attention to whom he was speaking with when
Quamlisha handed the telephone to the Expedition’s driver. Roger’s phone
records showed telephone calls to or from Nathaniel’s and Quamlisha’s numbers,
but not to or from Joshua’s number, on the day of the transaction. Roger
testified that he had never used Joshua to help in a drug transaction, although
he had provided cocaine to Joshua on at least nine prior occasions. He usually
provided Joshua with about a gram of cocaine. Roger testified that he observed
cars arriving and leaving the Kinchens’ residence and he inferred they were drug
deals, but he never witnessed drugs being exchanged. Roger stated that Joshua
took part in whatever business the cars brought to the residence, but he did not
believe Joshua was involved in the transaction at issue. On appeal, Joshua does
not challenge the admission of any portion of Roger’s testimony.
      Detective Steven Lovett testified that he knew Joshua to be “Little Maine.”
Quamlisha testified, identifying Joshua as the Expedition driver and stating
that she remembered being very attracted to Joshua, who was wearing a gold
grill on his teeth. Roger and Joshua’s girlfriend both testified that Joshua
sometimes wore a gold grill on his teeth. Roger testified that Nathaniel had four


                                       4
    Case: 12-30340     Document: 00512364346      Page: 5    Date Filed: 09/05/2013




                                  No. 12-30340

permanent gold teeth, two on the top and two on the bottom. The jury found
Joshua guilty; he was sentenced to be imprisoned for 180 months and to be
placed on supervised release for five years. Joshua appeals.
                                        II
      We apply an abuse-of-discretion standard in reviewing a district court’s
evidentiary rulings. United States v. Coleman, 78 F.3d 154, 156 (5th Cir. 1996).
The abuse-of-discretion standard is “heightened” when evidence is admitted
under Federal Rule of Evidence 404(b), because “[e]vidence in criminal trials
must be strictly relevant to the particular offense charged.” United States v.
Jackson, 339 F.3d 349, 354 (5th Cir. 2003) (internal quotation marks omitted).
“A trial court abuses its discretion when its ruling is based on an erroneous view
of the law or a clearly erroneous assessment of the evidence.” United States v.
Yanez Sosa, 513 F.3d 194, 200 (5th Cir. 2008) (quoting United States v.
Ragsdale, 426 F.3d 765, 774 (5th Cir. 2005)).           “Nevertheless, erroneous
admissions under Rule 404(b) are subject to a harmless error inquiry.” United
States v. McCall, 553 F.3d 821, 827 (5th Cir. 2008) (internal citations omitted).
                                        III
      Joshua argues that the district court reversibly erred in admitting
evidence of his prior possession and the concurrent statement that he sold drugs
to support his family, contending that, (1) the evidence was not intrinsic to the
crime charged; (2) the district court abused its discretion in alternatively holding
that the evidence was admissible under Rule 404(b); and (3) because the
evidence tying him to the crime was minimal, any error was not harmless.
      The district court held that Joshua’s prior possession and statement that
he sold drugs to support his family was admissible as intrinsic evidence, or if not


                                         5
    Case: 12-30340     Document: 00512364346    Page: 6   Date Filed: 09/05/2013




                                 No. 12-30340

intrinsic, then “definitely 404(b).” The district court noted that while the
evidence was prejudicial, it was relevant to either identity, motive, or intent
because it showed that Joshua was a dealer, rather than merely a user, of
cocaine.    After Johnson testified, the district court provided a limiting
instruction cautioning the jury that Joshua was not on trial for any act or
conduct or offense not alleged in the indictment.
        We agree with Joshua that the evidence in question was not intrinsic
evidence. “Evidence of an act is intrinsic when it and evidence of the crime
charged are inextricably intertwined, or both acts are part of a single criminal
episode, or it was a necessary preliminary to the crime charged.” United States
v. Sumlin, 489 F.3d 683, 689 (5th Cir. 2007). Intrinsic evidence is “admissible
to complete the story of the crime by proving the immediate context of events in
time and place.” Coleman, 78 F.3d at 156. Joshua was arrested for the prior
possession and made the concomitant statement in October 2008, over a year
before the drug transaction in the instant indictment. There is no evidence
linking that earlier possession to the drug deal that Roger orchestrated for
Quamlisha. Nor has the Government argued to the district court, or on appeal,
that Johnson’s testimony was intrinsic. Thus, we conclude that the district court
was incorrect in stating that the testimony regarding the prior possession and
concomitant statement was intrinsic. The evidence of Joshua’s prior possession
of cocaine and his concurrent statement were extrinsic to the offense charged
here.




                                       6
     Case: 12-30340       Document: 00512364346          Page: 7     Date Filed: 09/05/2013




                                       No. 12-30340

       Accordingly, we turn to the central issue: whether the district court abused
its discretion by admitting that evidence under Federal Rule of Evidence 404(b).2
In United States v. Beechum we set out a two-part test for determining whether
extrinsic evidence is admissible under Rule 404(b). 582 F.2d 898, 911 (5th Cir.
1978) (en banc). “First, it must be determined that the extrinsic evidence is
relevant to an issue other than the defendant’s character.” Id. (emphasis added).
“Second, the evidence must possess probative value that is not substantially
outweighed by its undue prejudice and must meet the other requirements of
[R]ule 403.” Id.3
       The standard for relevancy under Beechum’s first prong is identical to that
found in Rule 401 of the Federal Rules of Evidence: whether the evidence has

       2
         “Rule 404(b) is only implicated when the offered evidence is extrinsic; evidence
intrinsic to the charged offense does not implicate [404(b)].” United States v. Crawley, 533
F.3d 349, 353–54 (5th Cir. 2008).
       3
         Joshua contends that the district court failed to engage in a Beechum analysis. “When
requested by a party, a trial court must articulate on the record its findings as to the Beechum
probative value/prejudice evaluation.” United States v. Anderson, 933 F.2d 1261, 1269 (5th
Cir. 1991). Even without a request, a court should identify the admissible purpose of the rule
and “explain why the evidence’s probative value is not substantially outweighed by its undue
prejudice” if admissibility of the extrinsic evidence is a close question. Id. at 1270 (internal
quotation marks and citation omitted).
        Though Joshua objected to the admissibility of the evidence under 404(b), he never
requested that the district court record its Beechum findings. The district court’s oral 404(b)
ruling was not a model of clarity. Nonetheless, while the district court could have been more
clear, we conclude that it did engage in a Beechum analysis. The district court held multiple
pre-trial hearings to consider the admissibility of Johnson’s testimony. The court explained
that even if the evidence was not intrinsic, it was admissible as extrinsic evidence of Joshua’s
motive, discussed that the evidence was relevant circumstantial evidence in light of Roger’s
proposed testimony, and acknowledged the potential prejudicial effect but nevertheless
admitted the evidence because of its relevancy and on the condition that the Government not
refer to an actual conviction for the prior possession. Thus, Joshua’s contention that the
district court failed to engage in a Beechum analysis is without merit. Cf. Anderson, 933 F.2d
at 1270 (remanding for Beechum analysis where nothing in record reflected that court applied
Beechum test).

                                               7
    Case: 12-30340     Document: 00512364346      Page: 8   Date Filed: 09/05/2013




                                  No. 12-30340

“any tendency to make a fact more or less probable than it would be without the
evidence” and “the fact is of consequence in determining the action.” FED. R.
EVID. 401; see Beechum, 582 F.2d at 911. An extrinsic act is relevant to an issue
other than the defendant’s character if it is offered to prove one of the elements
listed in Rule 404(b): “motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident.” FED. R. EVID. 404(b); United
States v. Sanders, 343 F.3d 511, 518 (5th Cir. 2003).
      Evidence of “motive” is thus relevant in that it helps establish that Joshua
had a reason to commit the charged offense. See e.g., United States v. Benton,
637 F.2d 1052, 1056–57 (5th Cir. 1981) (upholding admissibility of prior murders
where relevant to show defendant’s motive for charged murder). “Motive has
been defined as ‘the reason that nudges the will and prods the mind to indulge
the criminal intent.’” Id. at 1056 (citing Beechum, 582 F.2d at 911 n.15); see also
BLACK’S LAW DICTIONARY 1039 (8th ed. 2004) (“Motive” is “[s]omething . . . that
leads one to act.”). The extrinsic act evidence need not be similar to the charged
offense when the extrinsic evidence is introduced to show motive. Beechum, 582
F.2d at 911 n.15.
      Motive is not an ultimate issue in this case, such as an element of the
criminal offense, but it is part of the story and provides context to the events in
question. By showing motive—that this defendant had a reason to commit the
crime—the Government’s more important purpose was to offer circumstantial
evidence to support Joshua’s identity. See Benton, 637 F.2d at 1057. The prior
possession is, of course, not admissible to show Joshua’s propensity to deal
drugs. Yet, extrinsic evidence of prior drug use or possession is relevant to
establishing motive where the actions help establish why the defendant wanted


                                        8
     Case: 12-30340      Document: 00512364346          Page: 9    Date Filed: 09/05/2013




                                      No. 12-30340

to commit the charged offense.4 See, e.g., United States v. Bitterman, 320 F.3d
723, 727 (7th Cir. 2003) (holding evidence of defendant’s prior drug use and
heroin addiction admissible to establish defendant’s motive to commit robbery);
United States v. Weems, 322 F.3d 18, 25 (1st Cir. 2003) (holding evidence of drug
dealing at house where defendant was arrested admissible in felon-in-
possession-of-firearm prosecution to establish defendant had motive to carry
weapon). Joshua’s concurrent statement that he dealt drugs because he did not
know how else to support his family is clearly relevant to establishing what led
Joshua to commit the charged offense. This evidence, in turn, countered the
defense strategy of portraying Joshua as primarily a user, not a dealer, of
cocaine. We conclude that the district court did not abuse its discretion by
holding that Joshua’s prior possession and his concurrent statement were
relevant to his motive.
       Turning to step two of our Beechum analysis, we must assess whether the
district court abused its discretion in holding that the prejudicial effect of
Joshua’s prior possession and concurrent statement did not substantially
outweigh the probative value. See Beechum, 582 F.2d at 913; see also FED. R.
EVID. 403.5 We consider several factors in determining whether the prejudicial


       4
        The dissenting opinion points out that an extrinsic act may support the inference of
a mental state when the act is a consequence of the mental state. Joshua’s prior
possession—in an amount seemingly greater than that for personal use—and the quantity of
cash inferentially rebut Joshua’s defensive assertions that he was only a user and thus
support his motive for the sale of drugs.
       5
         Rule 403 provides:
       Although relevant, evidence may be excluded if its probative value is
       substantially outweighed by the danger of unfair prejudice, confusion of the
       issues, or misleading the jury, or by considerations of undue delay, waste of
       time, or needless presentation of cumulative evidence.

                                             9
    Case: 12-30340      Document: 00512364346         Page: 10    Date Filed: 09/05/2013




                                     No. 12-30340

effect of the extrinsic evidence substantially outweighs its probative value: (1)
the government’s need for the extrinsic evidence, (2) the similarity between the
extrinsic and charged offenses, (3) the amount of time separating the two
offenses, and (4) the court’s limiting instructions. United States v. Sanchez, 988
F.2d 1384, 1394 & n.14 (5th Cir. 1993) (citing Beechum, 582 F.2d at 915). The
probative value of extrinsic evidence may be measured by whether and to what
extent the accused’s motive, intent, or other characteristic “is established by
other evidence, stipulation, or inference.” Beechum, 582 F.2d at 914. The
inquiry “calls for a commonsense assessment of all the circumstances
surrounding the extrinsic offense.” Id. The more closely an extrinsic offense
resembles the charged offense, the greater the prejudice to the defendant, id. at
915 n.20, but it does not follow that similarity requires exclusion of the evidence.
United States v. Cockrell, 587 F.3d 674, 679 (5th Cir. 2009). Importantly, we
make this analysis concerning Rule 403 through a lens that gives great
deference to the district court’s informed judgment in weighing the factors. See
United States v. Moye, 951 F.2d 59, 62 (5th Cir. 1992).
       The prejudicial effect of extrinsic evidence substantially outweighs its
probative value when the relevant exception, i.e. motive, is uncontested, because
the incremental probative value of the extrinsic offense is inconsequential when
compared to its prejudice. United States v. Roberts, 619 F.2d 379, 382 (5th Cir.
1980) (citing Beechum, 582 F.2d at 914). However, we disagree with Joshua’s
apparent argument that only his identity and not his motive were at issue, such
that the motive evidence was of minimal probative value. The two issues were


FED. R. EVID. 403. Beechum essentially incorporates Rule 403’s balancing test as its second
prong. See Crawley, 533 F.3d at 355.

                                            10
    Case: 12-30340        Document: 00512364346          Page: 11     Date Filed: 09/05/2013




                                       No. 12-30340

intertwined here given Joshua’s theory of mistaken identity, premised in part
on his argument that he was principally a user.6 Evidence of Joshua’s motive to
be involved in a drug transaction, then, was probative of establishing his
presence at the scene of the crime and his role in this transaction. We conclude
that the district court did not err in finding this evidence probative.7
       Addressing the potential prejudicial effect, we note that the jury heard
from Roger (without objection) that Joshua used cocaine and participated in drug
deals. Thus, the “feed his family” evidence was not the only evidence suggesting
Joshua was a drug dealer. Furthermore, it was not the sort of admission of acts
of a “heinous nature” that would inflame the jury to act irrationally. See
Beechum, 582 F.2d at 917. Any prejudicial effect of the testimony was further
diminished by the district court’s instructions to the jury regarding the “limited
purpose[] for which any evidence of other similar acts may be considered.” See
Crawley, 533 F.3d at 355. We have also held that “proof of prior drug activities
is more probative than prejudicial” in proving Rule 404(b) exceptions such as
knowledge or intent. United States v. Harris, 932 F.2d 1529, 1534 (5th Cir.
1991) (citing cases); see also United States v. Thomas, 348 F.3d 78, 86 (5th Cir.


       6
          The fallacy of this “only identity is at issue” theory is shown by the following
hypothetical. Suppose X is charged with murdering Y. Can X avoid the introduction of
evidence to show he had a motive to murder Y by conceding that somebody with a motive
murdered Y, just not him?
       7
          Further, we may affirm the district court’s denial a motion to suppress evidence based
on any basis in the record. See United States v. Pack, 612 F.3d 341, 347 (5th Cir. 2010); United
States v. Charles, 469 F.3d 402, 405 (5th Cir. 2006). The district court held the evidence as
admissible to prove motive, intent, or identity. The dissenting opinion appears to concede that
the evidence would have been admissible as proof of intent, but for intent not being contested
at trial. Because we again disagree that Joshua could “concede” the intent of the driver, and
thus prevent the Government from introducing evidence proving this point, we note the
evidence may have been properly admitted under 404(b) on the basis of intent as well.

                                              11
    Case: 12-30340    Document: 00512364346      Page: 12    Date Filed: 09/05/2013




                                  No. 12-30340
2003) (“[T]he district court properly explained that the evidence of the
defendant’s prior convictions for cocaine-related offenses is probative of the
[d]efendant having the requisite state of mind or intent to participate in the
present cocaine-related offenses.” (internal quotation marks and citation
omitted)). We conclude that it was not an abuse of discretion for the district
court to conclude that the prejudicial effect of the evidence did not substantially
outweigh its probative value.       We thus do not address the question of
harmlessness of any error.
                                        IV
      Joshua also challenges the procedure followed by the district court with
respect to Nathaniel’s testimony. At a pre-trial hearing, the district court
appointed an attorney for Nathaniel and ordered the parties to file questions
they wanted to ask of Nathaniel. Of the questions submitted, the court selected
five that would be allowed. The court conducted a subsequent hearing to
determine whether Nathaniel wanted to invoke his Fifth Amendment right
against self-incrimination. Nathaniel was sworn in as a witness, the court
explained that answers to some submitted questions may incriminate him, and
Nathaniel’s counsel said Nathaniel would invoke his right.
      Joshua requested to ask Nathaniel each of the questions in front of the
jury and have him invoke his right to each individual question. Over Joshua’s
objections, at trial he was permitted to ask Nathaniel only the questions pre-
approved by the court. On appeal, Joshua argues that this overall procedure
denied him his Sixth Amendment right to present witnesses on his behalf and
his Fifth Amendment right to due process of law. He specifically complains that
he was not able to explain to the jury why Nathaniel’s testimony was so limited.



                                        12
    Case: 12-30340      Document: 00512364346       Page: 13   Date Filed: 09/05/2013




                                    No. 12-30340

      “A valid assertion of the witness’ Fifth Amendment rights justifies a
refusal to testify despite the defendant’s Sixth Amendment rights.” United
States v. Goodwin, 625 F.2d 693, 701 (5th Cir. 1980) (citing United States v.
Lacouture, 495 F.2d 1237 (5th Cir. 1974); United States v. Gloria, 494 F.2d 477
(5th Cir. 1974)). A district court’s decision to exclude a witness’ testimony based
on an invocation of the witness’ Fifth Amendment privilege is reviewed for an
abuse of discretion.      United States v. Boyett, 923 F.2d 378, 379–80 (5th
Cir.1991). It was within the district court’s discretion to prevent Joshua from
making Nathaniel invoke his Fifth Amendment privilege in the presence of the
jury. See Lacouture, 495 F.2d at 1240. Joshua has no “right to benefit from any
inferences the jury may draw simply from the witness’ assertion of the
privilege,” which may have been the purpose of Joshua’s questions to Nathaniel,
according to Joshua’s appellate brief. See id.
      In United States v. Mares, we found no error in the trial court’s refusal to
allow counsel to take a witness question-by-question outside of the presence of
the jury for the purpose of having the witness invoke his right after each
question. 402 F.3d 511, 514–15 (5th Cir. 2005). A key focus is whether the trial
court inquires into the legitimacy of the invocation, see id., which is an issue
Joshua does not brief on appeal. We conclude that Joshua does not present any
error warranting reversal in this regard.
                                           V
      Finally, Joshua challenges the procedural and substantive reasonableness
of his above-Guidelines sentence.8 On appeal, Joshua first argues that his
sentence was unreasonable because the court did not use the Fair Sentencing


      8
          The Guidelines range was 120 to 150 months.

                                          13
   Case: 12-30340    Document: 00512364346     Page: 14   Date Filed: 09/05/2013




                                No. 12-30340

Act’s (“FSA”) five-year mandatory minimum sentence. After his sentencing
hearing, the Supreme Court subsequently determined that the FSA applies to
an offender like Joshua whose crime preceded August 3, 2010, but was
sentenced after that date. See Dorsey v. United States, 132 S. Ct. 2321, 2331
(2012). Thus, Joshua is correct that the FSA applies to his sentence.
      However, we do not remand such a procedural error if the Government
proves the error is harmless by “point[ing] to evidence in the record that will
convince us that the district court had a particular sentence in mind and would
have imposed it, notwithstanding the error made[.]”          United States v.
Delgado-Martinez, 564 F.3d 750, 753 (5th Cir. 2009) (citation omitted). Here,
the Government shows that the presentence report used the FSA-amended,
2011 version of the Guidelines to produce a recommended range of 120 to 150
months. The court gave an upward variance because it concluded that 150
months was insufficient.
      A panel of this court recently considered this same argument and found
any error in not recognizing the FSA’s retroactive applicability was harmless,
relying on authority that found harmless error when an imprisonment term was
not lengthened as the result of such error. United States v. Williams, 505 F.
App’x 343, 344 (5th Cir. Jan. 3, 2013) (unpublished) (citing United States v.
Teel, 691 F.3d 578, 587 (5th Cir. 2012)), cert. denied, 133 S.Ct. 2375 (2013).
Similarly, here, we conclude that this error was harmless; the mandatory
minimum was not the basis for the district court’s decision to vary upward.
      Joshua next argues his sentence was procedurally unreasonable because
the court failed to adequately explain its reason for deviating from the
Guidelines’ recommended range. Joshua contends that we cannot determine


                                      14
   Case: 12-30340    Document: 00512364346      Page: 15    Date Filed: 09/05/2013




                                 No. 12-30340

how substantial a deviation the court intended to make because it did not start
with the five-year mandatory minimum sentence. He cites Gall v. United
States, for the proposition that “a major departure should be supported by a
more significant justification than a minor one.” 552 U.S. 38, 50 (2007).
      Yet, the court’s upward variance was from the range calculated under the
Guidelines (120 to 150 months)—a range Joshua does not challenge—not from
a statutory minimum. After looking at the factors in 18 U.S.C. § 3553(a) and
adopting the presentence report’s findings, the district court repeatedly
expressed its concern with the level of violence exhibited in past crimes and
Joshua’s lack of respect for the law, and concluded that Joshua needed more
than a 150-month sentence to afford adequate deterrence in light of the danger
he presented to the public. Similarly, in its statement of reasons, the district
court explained that Joshua needed a “stern sentence” for, among other things,
deterrence purposes. This articulation is adequate under our precedent. See
United States v. Rhine, 637 F.3d 525, 528 (5th Cir. 2011) (affirming a
180-month sentence where the recommended Guidelines range was 30 to 37
months, and the court’s articulated reasons paralleled the § 3553(a) factors).
      Last, Joshua contends his sentence was substantively unreasonable
because the court “pointed to no specific feature of [his criminal] history that
was not properly reflected in his criminal history calculation.” He also claims
Nathaniel received a lesser sentence for similar conduct.
      These arguments are not briefed. In any event, we conclude that the
district court adequately explained its reason for varying upward.           Any
dissimilarity with Nathaniel may be understood in light of the fact that
Nathaniel accepted responsibility for his crime, while Joshua did not, so they


                                      15
   Case: 12-30340    Document: 00512364346     Page: 16   Date Filed: 09/05/2013




                                No. 12-30340

are not similarly situated. See United States v. Guillermo-Balleza, 613 F.3d
432, 435 (5th Cir. 2010) (the § 3553(a)(6) “disparity” factor requires district
courts to avoid only unwarranted disparities between similarly situated
defendants nationwide and does not require the district court to avoid
sentencing disparities between co-defendants who might not be similarly
situated); United States v. Candia, 454 F.3d 468, 476 (5th Cir. 2006).
      AFFIRMED.




                                      16
    Case: 12-30340       Document: 00512364346          Page: 17     Date Filed: 09/05/2013




                                       No. 12-30340

EMILIO M. GARZA, Circuit Judge, dissenting:
       I dissent from the majority opinion’s holding that the district court did not
abuse its discretion by admitting Joshua’s prior possession and concurrent
statement under Rule 404(b). Because I conclude the district court did abuse its
discretion by admitting the extrinsic evidence and the error was not harmless,
I would VACATE the conviction and REMAND for a new trial.
       First, while I agree that Joshua’s concurrent statement is relevant to
Joshua’s motive, Joshua’s prior possession is not and thus fails even the first
step of the Beechum analysis. For extrinsic evidence to be admissible under the
first step of the Beechum analysis, the evidence must be “relevant to an issue
other than the defendant’s character.” United States v. Beechum, 582 F.2d 898,
911 (5th Cir. 1978). While the district court held the prior possession was
relevant to establishing Joshua’s motive, intent, or identity, on appeal the
Government only contends the evidence is relevant to establishing Joshua’s
motive.1 Evidence is relevant to motive if it helps establish why the defendant


       1
         Accordingly, the Government waived the issues of identity and intent. FED. R. APP.
P. 28(a)(9)(A). As such, one need consider only whether the evidence would be admissible to
prove Joshua’s motive, but in any event, the evidence is not admissible to establish identity
or intent. While there are forms of identity evidence other than modus operandi, neither the
Government nor the district court suggested those forms of identity evidence were applicable
here. See United States v. Carrillo, 981 F.2d 772, 775 (5th Cir. 1993) (considering
admissibility of extrinsic evidence under only modus operandi exception because Government
sought to admit it only for that purpose). To be admissible, “other acts” evidence offered to
prove modus operandi must be so similar to the charged offense “that they evince a signature
quality—marking the extraneous act as the handiwork of the accused.” United States v.
Sanchez, 988 F.2d. 1384, 1393–94 (5th Cir. 1993) (internal quotation marks omitted). As
Joshua’s prior possession is not so similar to the charged offense as to constitute modus
operandi evidence, the evidence is inadmissible to establish identity. The intent exception is
also unavailing. While we have allowed extrinsic evidence of intent in drug possession or
conspiracy cases where criminal intent was disputed, see e.g., United States v. Broussard, 80
F.3d 1025, 1040 (5th Cir. 1996) (holding no unfair prejudice from admission of conviction for
possession of 50 to 200 pounds of marijuana with intent to distribute as evidence of intent to

                                             17
    Case: 12-30340        Document: 00512364346          Page: 18     Date Filed: 09/05/2013




                                       No. 12-30340

committed the offense. United States v. Benton, 637 F.2d 1052, 1056 (5th Cir.
Unit B Feb. 1981). The majority holds Joshua’s prior possession helps establish
why he committed the charged offense without explaining how. The cases the
majority cites in support of the relevancy of Joshua’s prior possession, United
States v. Bitterman, 320 F.3d 723 (7th Cir. 2003) and United States v. Weems,
322 F.3d 18 (1st Cir. 2003), are readily distinguishable. In both cases extrinsic
evidence of the prior possession or drug use was relevant to establishing why the
defendant committed the offense in question. In Bitterman evidence of the
defendant’s prior drug use helped establish why the defendant committed the
robbery: to support his drug habit. 320 F.3d 723, 727 (7th Cir. 2003). In Weems,
evidence of drug dealing at the house where the defendant was arrested helped
establish why the defendant carried a weapon to the residence: for protection in
a location where there was unlawful activity occurring. 322 F.3d 18, 25 (1st Cir.
2003). The majority does not cite and nor have we located any authority holding
that in an ordinary drug deal prosecution a defendant’s prior possession is
relevant to establishing his motive to commit the instant drug offense.2 That
Joshua’s prior possession helps establish that he was a drug dealer is unhelpful:

distribute cocaine), here because intent is not contested the probative value of intent evidence
is minuscule. The Government firmly established and Joshua did not dispute that the driver
of the Expedition intended to distribute drugs. The only question for the jury was whether
Joshua or Nathaniel was the driver of the Expedition.
       2
        In a prosecution for drug conspiracy we held that evidence that (1) an officer found
$350,000 in the defendant’s car and (2) an officer found $26,000 and a pound and a quarter of
cocaine in the defendant’s vehicle was probative of “motive and intent to carry drugs and
money interstate.” United States v. Vaquero, 997 F.2d 78, 83 (5th Cir. 1993). Vaquero,
however, applied plain error review, and involved an interstate drug conspiracy involving
hundreds of thousands of dollars. Id. In possession with intent to distribute prosecutions we
have found evidence of prior drug possessions relevant to establishing intent, but not motive,
to commit the charged drug offense. E.g., United States v. Arnold, 467 F.3d 880, 885–86 (5th
Cir. 2006).

                                              18
    Case: 12-30340       Document: 00512364346          Page: 19     Date Filed: 09/05/2013




                                       No. 12-30340

the fact Joshua dealt drugs in the past is relevant only to Joshua’s propensity to
deal drugs but not to his motive to deal drugs.3 See United States v. Varoudakis,
233 F.3d 113, 118 (1st Cir. 2000) (holding for evidence to be admissible under
Rule 404(b) its relevance “must not include bad character or propensity as a
necessary link in the inferential chain”) (internal quotation marks omitted).
       The reason the majority does not explain why Joshua’s prior possession
helped establish his motive to commit the charged drug offense is that it does
not. The relevance of extrinsic evidence of motive turns on two different
inferences. First, the extrinsic act must support an inference of a mental state,
such as desire for money, jealousy, revenge, etc. 22ACharles Alan Wright &
Victor James Gold, Fed. Prac. & Proc. Evid. § 5240 (2d ed. 2013); e.g., United
States v. Arnold, 773 F.2d 823, 833 (7th Cir. 1985) (holding evidence of
defendants’ loan sharking activities admissible to show motive for bribery of
witness before grand jury investigating loansharking). The extrinsic act can
prove mental state in two ways: (1) the extrinsic act can cause the mental state,
see e.g., United States v. Stumes, 549 F.2d 831, 833 (8th Cir. 1977) (holding
evidence of prior conviction of manslaughter admissible to show vengeful motive
for sending threatening letters to witnesses), or (2) the extrinsic act may be a
consequence of the mental state, see, e.g., United States v. Garcia–Meza, 430




       3
         The fallacy of holding the prior possession is relevant to Joshua’s motive because it
establishes that he is a drug dealer is readily apparent. If that were so, in every prosecution
for X crime the fact the defendant previously committed X crime would be relevant to the
defendant’s motive to commit X crime. While we have consistently held such logic applicable
in the context of establishing a defendant’s intent to commit X crime, e.g, United States v.
Booker, 334 F.3d 406, 412 (5th Cir. 2003), we have, for good reason, never applied this logic
to motive. See United States v. Varoudakis, 233 F.3d 113, 120 (1st Cir. 2000).

                                              19
    Case: 12-30340        Document: 00512364346          Page: 20      Date Filed: 09/05/2013




                                        No. 12-30340

F.3d 364, 368 (6th Cir. 2005) (holding prior assault on wife admissible to show
husband’s jealousy as motive for her murder).
       Second, the mental state shown must be, either directly or through
appropriate inferences, causally related to some other issue in the case. Wright,
supra, § 5240. Where there is no evidence linking the charged crime to the
uncharged crime the latter proves the former only by inference to the
defendant’s character and is thus irrelevant to motive. United States v. Brown,
880 F.2d 1012, 1014–15 (9th Cir. 1989) (holding where court could not see how
defendant’s prior assaults established motive to commit charged murder
admission of prior assaults was abuse of discretion). Here, the prior drug
possession does not support an inference of any mental state (e.g. a desire for
money, jealousy, or revenge) that is casually related to an issue in the case. The
majority holds the prior possession is relevant to establishing that Joshua was
a dealer rather than merely a user of drugs, but this is propensity evidence, not
evidence of a mental state that explains Joshua’s involvement in the charged
offense.4 Accordingly, Joshua’s prior possession is not relevant to establishing
his motive to commit the charged offense and fails even the first step of the
Beechum analysis.
       Second, both Joshua’s prior possession and his concurrent statement fail
step two of the Beechum analysis. For extrinsic evidence to be admissible under
the second step of the Beechum analysis, its prejudicial effect must not


       4
        The majority urges that the prior possession was admissible to counter the defense’s
strategy of portraying Joshua as primarily a user, not a dealer, of cocaine, ante, at 9, but this
does not explain how the prior possession was relevant to Joshua’s motive. If the defense
opened the door to character evidence, then perhaps the evidence might have been admissible
as propensity evidence under Federal Rule of Evidence 404(a)(2)(a), but that is not the
question before us.

                                               20
    Case: 12-30340    Document: 00512364346      Page: 21    Date Filed: 09/05/2013




                                  No. 12-30340

substantially outweigh its probative value. See Beechum, 582 F.2d at 913. The
prejudicial effect of extrinsic evidence substantially outweighs its probative
value when the relevant exception is uncontested because the incremental
probative value of the extrinsic offense is inconsequential when compared to its
prejudicial effect. United States v. Roberts, 619 F.2d 379, 382 (5th Cir. 1980)
(citing Beechum, 582 F.2d at 914). Accordingly, courts have generally held
motive evidence is admissible only where the defendant contests the issue of
motive or where motive is an element of the offense. See, e.g., United States v.
Williams, 585 F.3d 703, 708 (2d Cir. 2009) (holding extrinsic evidence of
defendant’s motive to possess gun inadmissible where defendant did not contest
the issue of motive); United States v. Siegel, 536 F.3d 306, 317–18 (4th Cir. 2008)
(holding 404(b) motive evidence admissible where murder statute required
Government to prove not only that defendant killed victim but that she killed
victim for purpose of preventing him or anyone else from providing law
enforcement with information about federal crimes she committed); United
States v. Johnson, 27 F.3d 1186, 1191–93 (6th Cir. 1994) (holding trial court
improperly instructed jury, in trial for possession of cocaine base with intent to
distribute, that evidence of defendant’s similar acts of possession was admissible
to show motive, where motive was not element of crime charged and defendant
did not contest motive); United States v. Tai, 994 F.2d 1204, 1210 (7th Cir. 1993)
(holding 404(b) evidence admissible under intent exception but not motive
exception where motive not contested).
      Here, the Government had little need for extrinsic evidence of motive and
any probative value the evidence may have had was necessarily slight. The
majority holds that Joshua’s motive was contested because the issues of motive
and identity “were intertwined here given Joshua’s theory of mistaken identity,

                                        21
    Case: 12-30340       Document: 00512364346          Page: 22     Date Filed: 09/05/2013




                                       No. 12-30340

premised in part on his argument that he was principally a user.” Ante, at
10–11. The majority might be correct if the defense had disputed any material
aspect of the Government’s case or that either Nathaniel or Joshua was the
Expedition driver. The defense did not, however, challenge any feature of the
drug transaction except for the identity of the man who handed the drugs to the
informant.5 The defense did not contest that Joshua (as well as Nathaniel) had
motive.6 No aspect of Joshua’s defense suggested that he did not have motive to
commit the offense. Cf. United States v. Benton, 852 F.2d 1456, 1456 (6th Cir.
1988) (holding defendant made motive issue in drug conspiracy prosecution by
advancing theory he was conducting investigation of drug dealing). Therefore
the probative value of motive evidence was necessarily slight. Moreover, the
prejudicial effect of admitting Joshua’s prior possession and statement that he
sold crack cocaine “because he did not know how to do anything else and that he
had mouths to feed” was great. The statement established not only that Joshua
dealt drugs, a fact also established by Roger’s testimony, but that dealing drugs



       5
         Nothing in this dissent suggests that a defendant’s ability to “concede” one of the
404(b) non-character purposes will necessarily “prevent the government from introducing
evidence proving this point.” Cf. ante, at 11 n.7. In evaluating whether 404(b) evidence may
be admitted courts must exercise their discretion under Rule 403. See also Beechum, 582 F.
2d at 911. Of course, a defendant’s choice to “concede” may impact the balance of interests.
In this particular case, Joshua did not contest intent or motive. Thus, evidence offered to
establish intent or motive had little probative value.
       6
        Accordingly, the majority’s murder hypothetical is not on point. Ante, at 11 n.6. Here,
unlike in the majority’s hypothetical, Joshua is conceding not that somebody committed the
crime but that either he or his brother committed the drug deal. Furthermore, Joshua did not
contest that he, like his brother, had a motive to commit the drug deal. Unlike in murder
prosecutions, in possession with intent to distribute prosecutions, motive is generally
uncontested because it is obvious: to make money. Harmelin v. Michigan, 501 U.S. 957, 1025
(1991) (White, J., dissenting) ([T]here is usually a pecuniary motive when someone possesses
a drug with intent to deliver it . . . .”).

                                              22
    Case: 12-30340        Document: 00512364346          Page: 23      Date Filed: 09/05/2013




                                        No. 12-30340

was the only way Joshua knew how to make money, greatly increasing the risk
that the jury would convict him for his bad character.7 Furthermore, Joshua’s
prior possession of a distributable amount of cocaine is highly similar to the
charged offense, compounding its prejudicial effect. See Sanchez, 988 F.2d at
1394. Although the district court issued a limiting instruction after Johnson
testified, we have held that where the government’s evidence of the defendant’s
guilt is weak, a limiting instruction may not suffice to cure the potential
prejudice. See United States v. McCarter, 316 F.3d 536, 538–39 (5th Cir. 2002).
As such, the district court abused its discretion by admitting Joshua’s prior
possession and concurrent statement.8


       7
        The majority holds the prejudicial effect of Johnson’s testimony was minimal in light
of Roger’s testimony. Ante, at 11. Johnson’s testimony was, however, significantly more
damaging to Joshua’s character than Roger’s testimony. While Roger’s testimony implicated
both Joshua and Nathaniel as drug dealers, Johnson’s testimony was damaging only to
Joshua. Moreover, although Roger testified that Joshua used cocaine and participated in drug
deals, Roger testified that Joshua usually purchased about a gram, a much smaller amount
than the 21 grams Johnson testified he found in Joshua’s pocket. While Roger merely testified
that Joshua took part in drug deals that occurred in his home, Johnson’s testimony established
that Joshua’s primary source of income was selling crack cocaine. Therefore, even accounting
for Roger’s testimony that Joshua purchased and used cocaine and was involved in drug deals,
the minuscule probative value of Johnson’s testimony was substantially outweighed by its
prejudicial effect.
       8
         The district court also held that Joshua’s prior possession was relevant to establishing
his intent or identity. The majority correctly notes that we may affirm the district court on
any basis in the record. Ante, at 11 n.7. It further suggests that Rule 404(b)’s “intent” prong
provides such a basis. Id. This is not necessarily so. The prior possession evidence, if treated
as proof of Joshua’s intent to distribute in the current case, may indeed satisfy the first step
of the Beechum analysis—relevance to an issue other than the defendant’s character. See, e.g.,
Broussard, 80 F. 3d at 1040 (finding prior possession with intent to distribute conviction
relevant to the question of intent in a subsequent possession with intent to distribute charge).
Under the second step, however, the intent argument fails on the same grounds as motive.
Because intent was not a contested issue at trial, the probative value of evidence addressing
this point is low and is substantially outweighed by the dangers of unfair prejudice discussed
above.

                                               23
   Case: 12-30340     Document: 00512364346      Page: 24   Date Filed: 09/05/2013




                                  No. 12-30340

      Because I conclude the admission of the extrinsic evidence was an abuse
of discretion, I proceed to consider whether the error was harmless. “The
government has the burden of establishing harmlessness beyond a reasonable
doubt.” United States v. McCall, 553 F.3d 821, 827 (5th Cir. 2008). If the
Government fails to meet its burden, we must reverse the error. An error is
harmless if a court, “after a thorough examination of the record is able to
conclude beyond a reasonable doubt that the jury verdict would have been the
same absent the error.” United States v. Barraza, 655 F.3d 375, 382 (5th Cir.
2011), cert. denied, 132 S. Ct. 1590 (2012).       I cannot conclude beyond a
reasonable doubt that the jury verdict would have been the same absent the
admission of the extrinsic act evidence. Aside from Johnson’s testimony, the
evidence against the brothers was in equipoise: Quamlisha identified Joshua as
the Expedition driver and Roger testified that Nathaniel conducted the
transaction.   The undisputed trial testimony established that Joshua and
Nathaniel look remarkably alike. While Joshua wore a temporary gold grill,
Nathaniel had permanent gold teeth. Roger testified that while both brothers
were involved in dealing drugs, he sent Nathaniel to conduct the deal in
question. Roger’s phone records showed telephone calls to or from Nathaniel’s
and Quamlisha’s numbers, but not to or from Joshua’s number, on the day of the
transaction. Roger testified that Joshua purchased only small quantities of
cocaine, usually about a gram. Roger testified that he knew Nathaniel, not
Joshua, as “Lil’ Maine” and “Maine Maine.” Obviously the credibility of the sole
witness to identify Joshua as the driver of the Expedition is crucial, and there
are multiple reasons to question the credibility of that identification. Quamlisha
was not acquainted with Joshua prior to the instant drug transaction, and her
only opportunity to view the driver of the Expedition was during a three-minute

                                       24
   Case: 12-30340     Document: 00512364346      Page: 25   Date Filed: 09/05/2013




                                  No. 12-30340

drug transaction during which the driver never exited the vehicle. When
Quamlisha initially identified the driver of the Expedition as Joshua, she did not
select him out of a photographic lineup, but merely confirmed that the only
photograph Stiles showed her was a photograph of the driver. See Bloodworth
v. Hopper, 539 F.2d 1382, 1383 (5th Cir. 1976) (“The display of pictures solely of
the suspect is one of the most suggestive and hence most objectionable methods
of identification.”). Quamlisha admitted she used marijuana on a daily basis at
the time of the transaction. As such, we cannot say that the Government’s
evidence of Joshua’s guilt is so strong that we can conclude beyond a reasonable
doubt that absent the error the jury would still have convicted Joshua.
Accordingly, the Government failed to meet its burden of proving beyond a
reasonable doubt that the error was harmless.
      For these reasons, I would VACATE the conviction and REMAND for a
new trial.   Respectfully, I dissent.




                                        25
