                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 07-2618
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Northern District of Iowa.
Dale Michael Lucas,                     *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: February 12, 2008
                                Filed: April 4, 2008
                                 ___________

Before LOKEN, Chief Judge, RILEY and SMITH, Circuit Judges.
                              ___________

RILEY, Circuit Judge.

       A jury convicted Dale Michael Lucas (Lucas) of attempting to manufacture
methamphetamine after a prior conviction for a felony drug offense, being a felon in
possession of a firearm, and possession of a firearm in furtherance of a drug
trafficking offense. The district court1 imposed a total sentence of 360 months
imprisonment. Lucas appeals his conviction and sentence, arguing the district court
erred by: (1) admitting evidence of other criminal conduct that was irrelevant to the


      1
       The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
offenses in question; and (2) finding Lucas was a career offender under United States
Sentencing Guidelines (U.S.S.G.) § 4B1.1 because his second Iowa conviction for
operating a motor vehicle under the influence of alcohol (OWI) constituted a crime
of violence under U.S.S.G. § 4B1.2. We affirm.

I.     BACKGROUND
       The charges against Lucas arose following a high-speed car chase on December
2, 2003. Around 7:43 p.m., Officer Jess Bernhard (Officer Bernhard) began pursuing
a car as it left a trailer court in Waukon, Iowa. Officer Bernhard believed the driver
to be Robert Bark (Bark).2 Officer Bernhard pursued the car at speeds approaching
80 miles per hour. After temporarily losing sight of the car on a gravel road, Officer
Bernhard spotted the stopped car. The driver’s door was open and the subject got out
of the car. As Officer Bernhard approached, the subject jumped into the ditch and
fled. Officer Bernhard pursued the subject on foot, in the dark, through a wooded
area. After chasing the subject some distance into the woods, Officer Bernhard “heard
a whole bunch of sticks breaking” and “what sounded like a splash.” Officer
Bernhard gave up the chase when he walked over to the area and observed a twenty
to thirty foot cliff with a creek below. “After a couple minutes of moaning and
groaning” the subject ran off into the woods.

      Officer Bernhard returned to the area where his squad car and the subject’s car
had stopped. Officer Darrell Simmons (Officer Simmons) arrived to assist Officer
Bernhard in searching the car. In the ditch next to the subject’s car, the two officers
found a digital scale, a police scanner, and a loaded Intratech .22 caliber handgun.

      The following morning, officers executed a search warrant at Knospe’s trailer
house, based in part on the items found in her car. Knospe and Bark were inside the


      2
      The car was determined to be registered to Sharnell Voshell, n/k/a Sharnell
Knospe (Knospe). At the time of these events, Bark was Knospe’s boyfriend.

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trailer. According to Officer Simmons, Bark looked tired, like he had just gotten out
of bed, but did not appear dirty or injured. When Officer Bernhard saw Bark, he
determined Bark was not the person he had chased the night before.

       On December 7, 2003, Lucas was arrested in Crawford County, Wisconsin,
with a backpack containing a tank of anhydrous ammonia. Officer Bernhard was
called to assist in the investigation. Officer Bernhard immediately recognized Lucas
as the driver of the car he had pursued on December 2, 2003.3

        Lucas was charged with attempting to manufacture methamphetamine after a
prior conviction for a felony drug offense, in violation of 21 U.S.C. § 841(a)(1),
§ 841(b)(1)(C), § 846 and § 851 (Count 1); being a felon in possession of a firearm,
in violation of 18 U.S.C. § 922(g)(1) and § 924(a)(2) (Count 2); and possession of a
firearm in furtherance of a drug trafficking offense, in violation of 18 U.S.C.
§ 924(c)(1)(A)(i) (Count 3). At Lucas’s trial, Officer Bernhard identified Lucas as the
driver. Knospe testified Lucas borrowed her car on the morning of December 2, 2003,
and she did not see her car or Lucas again on that day. Various witnesses identified
numerous items found in or near the car as belonging to Lucas, including a CD labeled
“Joey’s Songs,” a Green Bay Packers coat, a hat, boots, gloves, an electric
beard/mustache trimmer with “Dale Lucas” and a prisoner number engraved on it, a
shaving cream can with “Lucas” written on it, a small Sentry safe with
methamphetamine paraphernalia, a tool kit for extracting lithium from lithium
batteries, and the digital scale found in the ditch. Inside the car, the officers also
found .22 shells, the same shells that would be used in the handgun found in the ditch;
3.4 grams of methamphetamine; 8.3 grams of pseudoephedrine; a coffee grinder; drain
opener; salt; Coleman fuel; a Coleman heater and glassware; aluminum foil; coffee
filters; plastic tubing; and a tank of anhydrous ammonia.

      3
       Lucas pled guilty to possession of drug paraphernalia for the Wisconsin arrest.



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       In addition to testimony relating to the December 2, 2003 incident, the
government presented evidence of Lucas’s criminal conduct occurring on dates other
than December 2, 2003. This included testimony from: (1) Officer Scott Green
relating to a 2001 search of Lucas’s storage shed in Calmar, Iowa, and Lucas’s
resulting conviction of a drug crime; (2) Michael Weist and Stacie Martin about
Lucas’s drug activities occurring during the summer of 2003 involving the
manufacture of methamphetamine; (3) Officer Dennis Cain as to events occurring on
November 24, 2003, involving methamphetamine precursors found in a car associated
with Lucas; and (4) Knospe regarding Lucas’s methamphetamine activities and
possession of the gun recovered in the ditch. Lucas objected to this testimony,
arguing the testimony was irrelevant under Fed. R. Evid. 401 and inadmissible under
Fed. R. Evid. 404(b) as evidence of other crimes, wrongs, or acts to show Lucas’s
propensity to commit the crimes charged in the instant case. The district court
overruled these objections.4

      The jury found Lucas guilty on all three counts. At sentencing, the district court
found Lucas’s second Iowa OWI conviction constituted a crime of violence under
U.S.S.G. § 4B1.2. The district court then determined Lucas was a career offender
under U.S.S.G. 4B1.1, resulting in a Guidelines range of 360 months to life. Lucas
objected to his classification as a career offender, arguing his second OWI conviction




      4
       At a pretrial conference, the district court found the contested evidence was
relevant to a material issue in the case, specifically, defendant’s knowledge and intent;
was similar in kind and not overly remote in time to the crime charged; was supported
by sufficient evidence; and was higher in probative value than in prejudicial effect.
The district court did not admit evidence of a high-speed chase in Wisconsin, alleged
probation violations, or Lucas’s statements about law enforcement, finding this
evidence was “higher in prejudicial effect than probative value.”

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should not be considered a violent crime.5 The district court sentenced Lucas to 300
months imprisonment on Count 1, a concurrent 120 months imprisonment on Count
2, and a consecutive 60 months imprisonment on Count 3, for a total sentence of 360
months.

II.   DISCUSSION
      A.   Evidence of Other Bad Acts
      Federal Rule of Evidence 404(b) provides, in relevant part:

      (b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs,
      or acts is not admissible to prove the character of a person in order to
      show action in conformity therewith. It may, however, be admissible for
      other purposes, such as proof of motive, opportunity, intent, preparation,
      plan, knowledge, identity, or absence of mistake or accident[.]

We review for an abuse of discretion a district court’s decision to admit evidence of
other crimes, wrongs, or acts under Fed. R. Evid. 404(b), “revers[ing] only when such
evidence clearly had no bearing on the case and was introduced solely to prove the
defendant’s propensity to commit criminal acts.” United States v. Thomas, 398 F.3d
1058, 1062 (8th Cir. 2005) (citations and internal quotation marks omitted). Evidence
of other crimes, wrongs, or acts “is admissible if it is (1) relevant to a material issue;
(2) similar in kind and close in time to the crime charged; (3) proven by a
preponderance of the evidence; and (4) if the potential prejudice does not substantially
outweigh its probative value.” Id. (citations omitted).

      We conclude the district court did not abuse its discretion in admitting the
contested evidence to show Lucas’s knowledge and intent. First, Lucas’s knowledge
and intent were relevant to material issues in the case because the government was
required to prove Lucas voluntarily and intentionally attempted to manufacture

      5
       Lucas acknowledged at sentencing that his argument was contrary to Eighth
Circuit precedent.

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methamphetamine and knowingly possessed a firearm on December 2, 2003.6
“Evidence of similar drug activity is admissible in a drug prosecution case because a
defendant’s complicity in other similar transactions serves to establish intent or motive
to commit the crime charged.” United States v. Johnson, 934 F.2d 936, 940 (8th Cir.
1991) (citation and internal quotation marks omitted). Evidence that Lucas possessed
a firearm on a previous occasion is also relevant to show knowledge and intent. See
United States v. Walker, 470 F.3d 1271, 1274 (8th Cir. 2006) (citation omitted).

       The evidence of Lucas’s other criminal conduct was similar in kind and
sufficiently close in time to the crimes charged. “When admitted to show intent, the
prior acts need not be duplicates, but must be sufficiently similar to support an
inference of criminal intent.” Id. at 1275 (citation and internal quotation marks
omitted). “To determine if a crime is too remote in time to be admissible under Rule
404(b), we apply a reasonableness standard, evaluating the facts and circumstances
of each case.” Id. (citation omitted). “[T]here is no specific number of years beyond
which prior bad acts are no longer relevant to the issue of intent.” Id. (citation and
internal quotation marks omitted). Here, the evidence showed: (1) Lucas was
convicted of manufacturing methamphetamine about two years before the instant
offenses; (2) in the months leading up to the instant offenses, Lucas was cooking
methamphetamine; (3) less than one week after the instant offense, Lucas was arrested
with a container of anhydrous ammonia in a backpack; and (4) Lucas possessed an


      6
        Lucas argues the district court erred in admitting the contested evidence
because his theory of the defense was that he was not the driver of the car, and he did
not raise any issue of lack of knowledge or intent. However, the identity of the car’s
driver was not the only issue for the jury to decide. Because Lucas pled not guilty, the
government was required to prove beyond a reasonable doubt each element of each
crime charged. See United States v. Gilmore, 730 F.2d 550, 554 (8th Cir. 1984)
(citation omitted) (“By pleading not guilty, the defendant put the government to its
proof on all elements of the charged crime. . . . The government is not required to wait
until the defendant posits a particular defense asserting a lack of one of the elements
of the charged crime, but may prove up their case in anticipation of such a defense”).

                                          -6-
Intratech .22 caliber handgun during the fall of 2003. This evidence was similar in
kind to the instant offenses, because both the earlier and contemporaneous offenses
involved the manufacture of methamphetamine and the possession of a handgun. The
other bad acts were undisputedly close in time to the instant offenses.

        The government presented ample evidence the other criminal conduct occurred.
Lucas pled guilty to and was convicted of the 2001 methamphetamine charge; Knospe
testified Lucas possessed an Intratech handgun in 2003; several witnesses testified
Lucas cooked methamphetamine in the months before the instant offenses; and Lucas
admitted he had anhydrous ammonia in his backpack when he was arrested in
Wisconsin on December 7, 2003. This evidence easily satisfies the preponderance of
the evidence standard. See Thomas, 398 F.3d at 1062.

       Finally, the probative value of the evidence was not substantially outweighed
by its prejudicial effect. We give substantial deference to the district court’s
determination that the probative value of the evidence outweighed its prejudicial
effect. See Walker, 470 F.3d at 1275 (citation omitted). A limiting instruction
diminishes the danger of unfair prejudice. Id. The district court gave a thorough and
accurate limiting instruction for Lucas.

      Lucas argues that, without the evidence of other criminal conduct, the jury may
have disbelieved Knospe’s testimony that Lucas had borrowed her car, found Knospe
had a motive to cover for her boyfriend, Bark, and concluded Bark was the driver. Put
another way, Lucas suggests the jury may have found Knospe’s testimony incredible
had the jury not been told of Lucas’s previous involvement with methamphetamine
and possession of a firearm. Witness credibility is an issue for the jury to decide. See
United States v. Rogers, 91 F.3d 53, 57 (8th Cir. 1996) (citation omitted). We see
minimal link between Lucas’s other criminal conduct and Knospe’s credibility, and
no unfair prejudice to Lucas. The evidence of Lucas’s previous methamphetamine
conviction, possession of a handgun, and manufacture of methamphetamine was

                                          -7-
highly probative of Lucas’s unmistakable knowledge and intent to manufacture
methamphetamine and possess a firearm in the instant case. In addition, the district
court gave a limiting instruction, both during trial and in the final jury instructions,
thereby minimizing any prejudice Lucas might have suffered. We therefore conclude
the district court did not abuse its discretion by determining the probative value of the
contested evidence outweighed its prejudicial effect.

     B.     OWI Conviction
     We review de novo a district court’s application of the advisory sentencing
Guidelines. United States v. Spudich, 443 F.3d 986, 987 (8th Cir. 2006) (per curiam).

       Lucas argues the district court erred in finding Lucas was a career offender
under U.S.S.G. § 4B1.1 because Lucas’s second Iowa OWI conviction constituted a
crime of violence under U.S.S.G. § 4B1.2. Lucas acknowledges his argument is
contrary to Eighth Circuit precedent. Nevertheless, Lucas asks this court to reverse
the en banc opinion in United States v. McCall, 439 F.3d 967, 972 (8th Cir. 2006),
which held a felony conviction for driving while intoxicated is a “violent felony”
under 18 U.S.C. § 924(c) because it presents a serious risk of physical injury to
another.7 See also Spudich, 443 F.3d at 987 (stating, because the definition of “crime
of violence” under the Guidelines is nearly identical to a “violent felony” under 18
U.S.C. § 924(e), the same analysis applies to both terms).




      7
        The parties agree that, because Lucas’s second conviction for OWI had a
maximum penalty of two years imprisonment, it constituted a prior felony conviction
under the Guidelines even though it was considered an aggravated misdemeanor under
Iowa law. See United States v. Postley, 449 F.3d 831, 832 (8th Cir. 2006) (explaining
aggravated misdemeanors in Iowa fall within the definition of a felony under the
Guidelines because the punishment for an aggravated misdemeanor is up to two
years).

                                          -8-
       A panel of this court may not overrule the decision of the en banc court; only
the en banc court may overrule prior circuit precedent. See United States v. Wilson,
315 F.3d 972, 973-74 (8th Cir. 2003) (“this Court’s precedent . . . prohibits any three-
judge panel of the Court from overruling a previous panel opinion”); United States v.
Riza, 267 F.3d 757, 760 (8th Cir. 2001) (“Only the court en banc may overrule . . .
prior panel opinions”). We therefore hold the district court correctly determined
Lucas’s OWI conviction constituted a crime of violence.

III.   CONCLUSION
       For the foregoing reasons, the judgment of the district court is affirmed.
                       ______________________________




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