                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 18-3000
                         ___________________________

                             United States of America,

                        lllllllllllllllllllllPlaintiff - Appellee,

                                           v.

                              Samory Azikiwe Monds,

                       lllllllllllllllllllllDefendant - Appellant.
                                       ____________

                     Appeal from United States District Court
                  for the Southern District of Iowa - Des Moines
                                  ____________

                          Submitted: September 27, 2019
                            Filed: December 20, 2019
                                  ____________

Before LOKEN, COLLOTON, and KOBES, Circuit Judges.
                          ____________

COLLOTON, Circuit Judge.

      A jury convicted Samory Monds of possession with intent to distribute cocaine
and cocaine base. See 21 U.S.C. § 841(a)(1), (b)(1)(C). The district court1 sentenced
him to 262 months’ imprisonment. On appeal, Monds challenges the admission of

      1
      The Honorable James E. Gritzner, United States District Judge for the
Southern District of Iowa.
evidence that he had sustained three prior felony drug convictions, and the
presentation of testimony adverting to the fact that Monds was under court
supervision at the time of his arrest. Monds also disputes the district court’s
calculation of the advisory guideline range at sentencing. We conclude that there was
no reversible error, and therefore affirm the judgment.

                                          I.

       In August 2017, Monds was serving terms of federal supervised release and
state probation. He had violated conditions of supervised release, and police officers
arrived at his home on August 30 to arrest him for the violation. As officers arrested
Monds at his front door, a man named Tommy Johnson approached the house, but
turned to flee when he saw the police. Officers caught Johnson and found that he
possessed several baggies of heroin and a pipe for smoking crack cocaine. Police
then obtained a search warrant for Monds’s residence, and they seized cocaine and
paraphernalia used in distributing drugs.

       A grand jury charged Monds with possession with intent to distribute cocaine
and cocaine base. Before trial, the government filed a notice under Federal Rule of
Evidence 404(b) to present evidence of three prior convictions: (1) an August 2017
conviction for possession of marijuana with intent to deliver; (2) a May 2014
conviction for conspiracy to distribute cocaine base; and (3) an April 2011 conviction
for possession of a controlled substance with intent to deliver. The motion asserted
that the convictions were relevant to prove Monds’s “motive, opportunity, intent,
preparation, plan, knowledge, and absence of mistake.” Monds moved to exclude the
prior convictions. He also sought to keep out evidence that he was on supervised
release and probation at the time of his arrest.

      After a hearing, the district court ruled that the prior convictions would be
received in evidence. In light of our decision in United States v. Wright, 866 F.3d

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899 (8th Cir. 2017), which reiterated that “a prior conviction for distributing drugs
. . . [is] relevant under Rule 404(b) to show knowledge and intent to commit a current
charge of conspiracy to distribute drugs,” id. at 905 (internal quotation marks
omitted), the court determined that “under the circumstances of this case,” it was
“compelled to rule that they are admissible.” The court also ruled that witnesses
would be permitted to make limited reference to the fact that officers appeared at
Monds’s residence to arrest him for violating terms of supervised release.

       At trial, the court admitted evidence of the three convictions, and instructed the
jury that it could consider the evidence only to help decide “motive, intent,
knowledge, or absence of mistake or accident.” The jury was admonished that it
could not convict Monds simply because he may have committed similar acts in the
past. When witnesses testified that Monds was under court supervision at the time
of the investigation, the court gave a cautionary instruction about the limited purpose
of the evidence.

                                           II.

                                           A.

       Monds argues first that the district court abused its discretion by admitting the
prior convictions. Rule 404(b) is a “rule of inclusion,” United States v. Riepe, 858
F.3d 552, 560 (8th Cir. 2017), that permits evidence of prior crimes to show a
defendant’s “motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.” Fed. R. Evid. 404(b)(2). The evidence must
be (1) relevant to a material issue raised at trial, (2) similar in kind and not overly
remote in time to the crime charged, (3) supported by sufficient evidence to support
a jury finding that the defendant committed the other act, and (4) of probative value
not substantially outweighed by its prejudicial effect. See United States v. LeBeau,
867 F.3d 960, 978-79 (8th Cir. 2017); United States v. Gant, 721 F.3d 505, 509 (8th

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Cir. 2013). Evidence is not admissible under Rule 404(b) if it is introduced solely to
show a defendant’s propensity to engage in criminal misconduct. United States v.
Walker, 428 F.3d 1165, 1169 (8th Cir. 2005).

       Monds contends that there was no meaningful similarity between his prior
convictions and the charge in this case. Citing dicta from United States v. Turner,
781 F.3d 374 (8th Cir. 2015), Monds complains that the government failed to provide
a specific non-propensity purpose for offering evidence of the prior convictions. We
explained in United States v. Harry, 930 F.3d 1000 (8th Cir. 2019), however, that
“Turner is inapposite where a defendant places his knowledge and intent at issue
during trial.” Id. at 1006. Monds placed both elements at issue, by means of a
general denial, id. (quoting United States v. Thomas, 58 F.3d 1318, 1322 (8th Cir.
1995)), and by suggesting specifically that the drugs may have belonged to Johnson
and that any drugs that he possessed were for personal use.

      The concern in Turner, moreover, was whether the government failed to
explain what intent or knowledge the evidence would tend to show, or how the prior
crimes were relevant to the offense charged. 781 F.3d at 390. Failure to elaborate in
this way, while discouraged by this court, is “not in itself a basis for reversal.” United
States v. Mothershed, 859 F.2d 585, 589 (8th Cir. 1988); see United States v.
Johnson, 439 F.3d 947, 953-54 (8th Cir. 2006). Here, moreover, the government did
more than “simply read the list of issues for which prior bad acts can be admitted
under Rule 404(b).” Mothershed, 859 F.2d at 589.

       The government was required to prove that Monds knew that the substance
found on his dining room table was cocaine or cocaine base, as opposed to an
innocent item, and the prosecution explained that a prior conviction for conspiring
to distribute cocaine base was relevant to his knowledge. The government also bore
the burden to prove that Monds intended to distribute the drugs in his possession,
rather than hold them for personal use; the jury was given the option to consider the

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lesser-included offense of simple possession. That Monds was convicted thrice
before on charges involving the distribution of drugs, the prosecution explained, was
relevant to whether he intended to distribute the drugs found in his residence. E.g.,
United States v. Patino, 912 F.3d 473, 476 (8th Cir. 2019). The proposed uses of
prior convictions to prove “motive” and “absence of mistake” were not well-
explained, and might prudently have been omitted, but were consistent with circuit
precedent. E.g., Wright, 866 F.3d at 905; United States v. Ellis, 817 F.3d 570, 579
(8th Cir. 2016); United States v. McGilberry, 620 F.3d 880, 886-87 (8th Cir. 2010);
United States v. Shoffner, 71 F.3d 1429, 1432 (8th Cir. 1995). Where the district
court is satisfied by the government’s explanation for admissibility under Rule
404(b), the court not need repeat or augment the analysis.

       Monds objects in particular to admission of the 2011 conviction because it was
based on conduct occurring almost ten years before the alleged offense conduct in
this case. The district court allowed that if this conviction were offered “by itself,
that might be a closer call,” but reasoned that where the two more recent convictions
were “more significant anyway,” admission of the third conviction did not occasion
“any particularly additional prejudice.” This was a permissible exercise of discretion.
The older conviction was within the range of relevance, e.g., United States v.
Johnson, 860 F.3d 1133, 1142 (8th Cir. 2017), and in considering prejudicial effect,
the court was entitled to consider the incremental effect of the evidence in light of the
record as a whole.

       Monds also complains that the district court failed to conduct an adequate
balancing of the probative value and prejudicial effect of the evidence. The argument
seems to be that because the government admitted only the judgments of prior
convictions, without greater detail about the crimes, the probative value was too small
to justify admission. Of course, if the government had presented details of Monds’s
prior drug trafficking, then that evidence would have risked greater prejudicial effect.
We conclude that the district court’s decision to limit the evidence and to provide a

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cautionary instruction justified its conclusion that the probative value of the evidence
on issues such as knowledge and intent was not substantially outweighed by its
prejudicial effect.

                                          B.

        Monds next argues that the district court abused its discretion by allowing
references to the fact that he was serving terms of supervised release and probation
at the time of his arrest. A police officer testified that he was assigned to arrest
Monds while he was on “state and federal probation.” Two probation officers
testified that they supervised Monds on federal supervised release and state probation,
respectively, and that he reported living alone at the address where police arrested
him and found drugs. Each time, the district court cautioned the jury that the
evidence about court supervision was offered “solely to explain why the persons were
called to the residence at issue,” who lived at the residence, or how the witness was
familiar with the living situation.

       Monds asserts that the district court abused its discretion by failing to exclude
the evidence under Rule 403 on the ground that its probative value was substantially
outweighed by a danger of unfair prejudice. He asserts that because he was willing
to stipulate that he lived at the residence, the testimony added no probative value but
created a risk that the jury unfairly would convict him of the charged offense based
on his prior transgressions.

       Monds understates the probative value of the disputed evidence. Testimony
from the probation officers tended to establish not only that Monds lived at the
residence, but that he lived there alone. This fact helped to prove that Monds, not the
visiting Johnson, possessed the drugs that were found within the residence. The
testimony of the police officer that he was present to arrest Monds for violating
conditions of release was admissible to explain the circumstances surrounding the

                                          -6-
event. See United States v. Orozco-Rodriguez, 220 F.3d 940, 942 (8th Cir. 2000);
United States v. Edwards, 159 F.3d 1117, 1129 (8th Cir. 1998). The court properly
cautioned the jury to consider it only for that purpose, and the jury already was aware
that Monds had sustained prior convictions. The district court thus did not abuse its
discretion under Rule 403.

                                          III.

       Monds also raises a claim of procedural error at sentencing. He argues that the
district court erroneously calculated the advisory guideline range by denying him a
two-level reduction for acceptance of responsibility under USSG § 3E1.1. We review
the district court’s determination for clear error. United States v. Perry, 640 F.3d 805,
813 (8th Cir. 2011).

        A defendant is entitled to a two-level decrease if he “clearly demonstrates” an
acceptance of responsibility. USSG § 3E1.1(a). This adjustment generally “is not
intended to apply to a defendant who puts the government to its burden of proof at
trial by denying the essential factual elements of guilt.” USSG § 3E1.1, comment.
(n.2). In “rare situations,” however, a defendant who is convicted after trial may earn
the adjustment, such as when the defendant “goes to trial to assert and preserve issues
that do not relate to factual guilt.” Id.; see Perry, 640 F.3d at 814. Given that Monds
maintained at trial that he was not guilty as a factual matter, the district court ruled
that it was “compelled to find that he is not entitled” to the two-level reduction.

       Monds argues that he accepted responsibility by submitting to a proffer
interview before trial and providing details about the charged offense. As it turned
out, however, the parties did not reach a plea agreement or other pretrial resolution.
The case proceeded to trial, and Monds denied factual guilt. That he refrained from
obstructing justice by testifying falsely does not mean that his defense was unrelated
to factual guilt within the meaning of the guideline commentary. This was not one

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of the rare situations in which a defendant may receive an adjustment for acceptance
of responsibility despite putting the government to its burden of proof at trial. Monds
complains that the district court failed to exercise its discretion when it declared that
it was “compelled” to deny the adjustment. But the court’s statement simply
recognized the law: Under the guidelines, a defendant who proceeds to trial and
presents a defense that denies factual guilt does not clearly demonstrate acceptance
of responsibility.

                                   *       *       *

      The judgment of the district court is affirmed.
                     ______________________________




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