                          UNITED STATES COURT OF APPEALS
                                   FIFTH CIRCUIT

                                      _________________

                                          No. 02-60207

                                      (Summary Calendar)
                                      _________________


               UNITED STATES OF AMERICA,


                                             Plaintiff - Appellee,

               versus


               TRAVIS DEAN EDWARDS, II,


                                             Defendant - Appellant.



                          Appeal from the United States District Court
                            For the Northern District of Mississippi
                               USDC No. 3:01-CR-29-ALL-D

                                       December 27, 2002


Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

       Travis Dean Edwards, II (“Edwards”) appeals his conviction for passing counterfeit currency.

Edwards contends that the district court erred by admitting Grady Lee McCullar (“McCullar”)’s


       *
               Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
testimony pursuant to FED. R. EVID. 404 (b), that without McCullar’s testimony the evidence was

insufficient to prove his intent to defraud, and that the district court erred by assigning Edwards two

criminal history points for a previous conviction, since that conviction was possibly uncounseled.

       Edwards has not demonstrated that the district court erred in admitting McCullar’s testimony

under FED. R. EVID. 404 (b). McCullar’s testimony that he saw Edwards purchase counterfeit bills

in October or November of 2000 was admissible to show Edwards’ intent or l ack of mistake or

accident regarding the August 1999 incidents on which his conviction was based. See FED. R. EVID.

404 (b) (providing that “[e]vidence of other crimes, wrongs, or acts” may be admissible “as proof of

motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or

accident”); United States v. Peterson, 244 F.3d 385, 392-93 (5th Cir.), cert. denied, 122 S. Ct. 133

(2001) (“Our prior decisions clearly allow for evidence of ‘bad acts’ subsequent to the subject matter

of the trial for the purpose of demonstrating intent.”). Moreover, Edwards has not shown that the

probative value of McCullar’s testimony was substantially outweighed by its potential for undue

prejudice, see FED. R. EVID. 403, and his failure to request an on-the-record balancing of

probativeness and prejudice is fatal to his argument that the district court erred by not conducting

such a balancing test. United States v. Fox, 69 F.3d 15, 20 (5th Cir. 1992).

       Edwards’s challenge to the sufficiency of the evidence is derivative of his challenge to

McCullar’s testimony. Thus, his insufficiency-of-the-evidence argument fails.

       Because Edwards did not object in the district court to the two criminal history points

assigned to him for his possibly uncounseled conviction, we review under the plain-error standard his

argument on appeal that the district court erred in assigning to him these criminal history points. See

United States v. Flanagan, 87 F.3d 121, 124 (5th Cir. 1996) (“We apply the ‘plain error’ standard


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when a defendant ‘fail[s] to object to the PSR or at the sentencing hearing.”). Whether Edwards was

represented by counsel when he was convicted previously is a question of fact that could have been

resolved at sentencing following a proper objection. Since Edwards failed to make such an objection,

he cannot show plain error. United States v. Lopez, 923 F.2d 47, 50 (5th Cir. 1991) (“Questions of

fact capable of resolution by the district court upon proper objection at sentencing can never

constitute plain error.”).

        We do not accept the Government’s invitation to address the issue of whether Edwards’

counsel gave effective assistance at trial, since Edwards explicitly disclaims ineffective assistance of

counsel as an issue on appeal.

        In sum, the district court’s judgment is AFFIRMED.             The Government’s motion to

supplement the record on appeal is DENIED as moot.




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