                United States Court of Appeals
                           For the Eighth Circuit
                       ___________________________

                               No. 17-1255
                       ___________________________

                            United States of America

                      lllllllllllllllllllll Plaintiff - Appellee

                                         v.

                           Armando Castillo Valerio

                     lllllllllllllllllllll Defendant - Appellant
                                     ____________

                   Appeal from United States District Court
                  for the Northern District of Iowa - Waterloo
                                ____________

                          Submitted: January 10, 2018
                             Filed: April 27, 2018
                                [Unpublished]
                                ____________

Before SMITH, Chief Judge, MELLOY and SHEPHERD, Circuit Judges.
                             ____________

PER CURIAM.

     A jury convicted Armando Valerio of conspiracy to distribute
methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846.
During trial, the district court1 granted the government’s motion under Federal Rule
of Evidence 404(b) to introduce a certified copy of Valerio’s prior state-court
conviction for possession of methamphetamine with intent to distribute. Valerio
appeals, contending the prior conviction was irrelevant and constitutes mere
propensity evidence that fails to meet the Rule 404(b) standard for admission. We
affirm.

       According to the evidence at trial, Valerio and several others were involved in
a conspiracy to distribute methamphetamine throughout the state of Iowa. No fewer
than seven witnesses testified at trial that they regularly obtained various quantities
of methamphetamine from Valerio. And Valerio’s coconspirators also testified,
describing at length the process by which they would acquire and resell the drugs.
To defend against these charges, Valerio has consistently asserted that all
methamphetamine found was for personal use to support his addiction. In order to
demonstrate that Valerio knew the full scope of the conspiracy and was a willing
participant therein, the government sought to introduce a certified copy of Valerio’s
2004 Iowa conviction for possession with intent to distribute less than five grams of
methamphetamine. Although the district court conditionally excluded this evidence
prior to trial in order to see what the trial evidence showed, it revisited the matter
during trial and ruled that evidence of the conviction was admissible. Valerio argues
this was in error.

       “We review the district court’s decision to admit evidence of [a defendant’s]
prior bad acts for abuse of discretion,” and we will reverse “only when the 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. Buckner, 868 F.3d 684, 687
(8th Cir. 2017) (internal quotation marks omitted). “Evidence of a crime, wrong, or


      1
       The Honorable Leonard T. Strand, Chief Judge of the United States District
Court for the Northern District of Iowa.

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other act is not admissible to prove a person’s character in order to show that on a
particular occasion the person acted in accordance with the character.” Fed R. Evid.
404(b)(1). But, in a criminal case, “[t]his evidence may be admissible for another
purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident.” Fed. R. Evid. 404(b)(2).
Ultimately, the evidence is admissible if it “(1) is relevant to a material issue, (2) is
similar in kind and close in time to the crime charged, (3) is proven by a
preponderance of the evidence, and (4) does not have a prejudicial effect that
substantially outweighs the probative value.” United States v. Jackson, 856 F.3d
1187, 1191 (8th Cir. 2017) (internal quotation marks omitted).

       Valerio argues that the prior conviction was irrelevant and too remote in time.
As to relevance, “[e]vidence of prior drug dealings is relevant to the material issue
of whether [Valerio] had the requisite intent to enter into a conspiracy.” Id. (first
alteration in original) (internal quotation marks omitted). Valerio likens this case to
United States v. Turner, 781 F.3d 374, 390 (8th Cir. 2015), in which we were critical
of the government’s vague assertions, without more, that a prior conviction was
relevant to show the defendant’s intent and knowledge. Here, however, Valerio
placed his knowledge or intent at issue during his counsel’s cross examination of the
government’s witnesses, in which counsel repeatedly directed questioning at the
small amount of methamphetamine found in Valerio’s possession, Valerio’s personal
use habits, and whether others could have been responsible for the narcotics or
paraphernalia. The government’s strategy to counter this defense was to demonstrate
Valerio’s intent to enter into a drug conspiracy, and “[e]vidence of prior drug dealings
is relevant to the material issue of whether [Valerio] had the requisite intent to enter
into a conspiracy.” Jackson, 856 F.3d at 1191 (first alteration in original) (internal
quotation marks omitted).

      With respect to the remoteness in time between the prior conviction and the
current offense, the six or seven years between the defendant’s release from prison

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and the conduct underlying the current offense does not diminish the probative value
of the evidence. See United States v. Walker, 470 F.3d 1271, 1275 (8th Cir. 2006)
(holding prior convictions admissible where eight years passed between release from
prison and the conduct underlying the offense).

      The district court did not abuse its discretion in admitting evidence of Valerio’s
2004 conviction.2
                       ______________________________




      2
       Valerio also argues that the district court erred in not granting his request for
a downward departure, but he concedes that this issue is not reviewable under current
precedent absent circumstances not present here. See United States v. Bryant, 606
F.3d 912, 919 (8th Cir. 2010) (“[I]n general,[t]he discretionary denial of a motion for
downward departure is unreviewable unless the court failed to recognize its authority
to depart.” (second alteration in original) (internal quotation marks omitted)).

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