                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                     REVISED OCTOBER 19, 2006
              IN THE UNITED STATES COURT OF APPEALS           October 16, 2006

                         FOR THE FIFTH CIRCUIT            Charles R. Fulbruge III
                         _____________________                    Clerk

                              No. 05-40877
                         _____________________

UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellee,

                                versus

MARCUS TREMAIN ARNOLD,

                                           Defendant - Appellant.
_________________________________________________________________

           Appeal from the United States District Court
      for the Eastern District of Texas, Beaumont Division
                      USDC No. 1:04-CR-76-ALL
_________________________________________________________________

Before KING, GARWOOD and JOLLY, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

     Marcus Tremain Arnold (“Arnold”) was convicted by a jury of

possession with intent to distribute more than 50 grams of cocaine

base (“crack”), possession of a firearm by a felon, and possession

of a firearm in furtherance of drug trafficking.      He was sentenced

to life imprisonment for the first crime under an enhancement

provision for two-time felony drug offenders.       On appeal, Arnold

challenges (1) the sufficiency of the evidence on all counts, (2)

the admission of Federal Rule of Evidence 404(b) evidence of a

prior conviction, and (3) the district court’s ruling that an

incorrectly-cited statute in the Government’s pre-trial 21 U.S.C.

§ 851 sentencing enhancement notice constituted clerical error.
Because we find no error as to Arnold’s first two challenges, we

affirm his conviction on all three counts.     Lacking an adequate

record to rule on his third challenge, we remand the case to the

district court for the limited purpose of determining whether

Arnold was prejudiced by the citation error in the Government’s

notice.

                                 I

     On April 28, 2004, officers of the Orange (Texas) Police

Department executed a search warrant at 418 Dewey Street in Orange,

a residence rented to Arnold.   No one was at home.   During their

search of the house, the officers found 99.78 grams of cocaine base

(“crack”) in a box of Betty Crocker Instant Mashed Potatoes and a

loaded Ruger 9mm semiautomatic pistol, among other contraband not

relevant to this appeal.

     Arnold was named in a one-count indictment on May 19, 2004,

charging him with possession with intent to distribute more than 50

grams of crack in violation of 21 U.S.C. § 841(a).    Exactly three

months later on August 19, 2004, Arnold was named in a three-count

first superseding indictment.   The first charge was the same as

that in the original indictment (“Count 1"), while the second

alleged possession of a firearm by a felon in violation of 18

U.S.C. § 922(g)(1) (“Count 2") and the third alleged possession of

a firearm in furtherance of a drug trafficking crime in violation

of 18 U.S.C. § 924(c) (“Count 3").   Arnold’s first trial ended in

a mistrial on November 10.   On January 5, 2005, a second jury was

                                 2
empaneled and the trial concluded the next day with a verdict of

guilt on all three counts.

      During the second trial, the district court conducted a

Beechum1 hearing on the admissibility of evidence of Arnold’s prior

crimes and bad acts pursuant to Rule 404(b) of the Federal Rules of

Evidence. (Arnold was convicted of drug-related crimes in Texas in

1992, 1993 and 1995).    The court excluded evidence of the first two

convictions but allowed the Government to present evidence of a

1995 arrest and conviction for possession of roughly four grams of

crack.

      The Government originally filed a Notice of Information of

Prior Convictions for Purpose of Increased Punishment on August 16,

2004, fulfilling the command of 21 U.S.C. § 851.     The notice stated

that the Government intended to rely on Arnold’s previous felony

drug convictions to enhance his sentence as provided by 21 U.S.C.

§ 841(b)(1)(B). On February 22, 2005, after Arnold’s conviction on

all   counts,    the   Government   offered   an   amended   notice   of

enhancement.      The only change was to the statutory citation,

replacing   the     above   with    the   adjacent   subparagraph,    §

841(b)(1)(A).2




      1
      United States v. Beechum, 582 F.2d 898 (5th Cir. 1978) (en
banc).
      2
      The full significance of this change is discussed in section
II.C infra. See text accompanying note 4.

                                    3
     After the U.S. Probation Department provided the parties with

a pre-sentence report, Arnold challenged the report, arguing that

its reliance on the February 22, 2005 amended notice to establish

a statutory sentence range of life imprisonment for Count 1 was

improper.   At the sentencing hearing on May 23, 2005, the district

court overruled Arnold’s challenge and sentenced him to life in

prison for Count 1.   Arnold timely appealed.

                                 II

     Arnold challenges (1) the sufficiency of the evidence on all

three convictions, (2) the admission of Rule 404(b) evidence and

(3) the district court’s decision that the Government’s citation

mistake in its initial § 851 notice was clerical error.           We

consider each in turn.

                                 A

     The first issue presented on appeal is the sufficiency of the

evidence to support Arnold’s convictions.       “Where, as here, the

defendants moved for judgment of acquittal at the close of the

evidence, we decide whether the evidence is sufficient by ‘viewing

the evidence and the inferences that may be drawn from it in the

light most favorable to the verdict’ and determining whether ‘a

rational jury could have found the essential elements of the

offenses beyond a reasonable doubt.’” United States v. Valdez, 453

F.3d 252, 256 (5th Cir. 2006) (quoting United States v. Pruneda-

Gonzalez, 953 F.2d 190, 193 (5th Cir. 1992)).

                                 1

                                 4
      Arnold’s challenge to Count 1 contends that the Government did

not   prove    beyond   a   reasonable    doubt    that   he   knowingly   had

constructive possession of the drugs.             The Government must prove

that the defendant knowingly possessed a controlled substance, that

the substance was in fact crack and that the defendant possessed

the substance with the intent to distribute it.            United States v.

Delgado, 256 F.3d 264, 274 (5th Cir. 2001).               Possession may be

either actual or constructive. Constructive possession is found if

the defendant knowingly has “ownership, dominion or control over

the contraband itself or over the premises in which the contraband

is concealed.”    United States v. Cardenas, 748 F.2d 1015, 1019 (5th

Cir. 1984).

      Arnold first argues that several other individuals lived in

the residence at 418 Dewey Street and that therefore this is a case

of joint occupancy.     While admitting that he was the sole tenant on

the   lease,   Arnold   points   to   the   testimony     of   Greg   Richards

(“Richards”) at trial that Richards and others lived at the house

for extended periods.       Arnold also appears to argue that he did not

live in the house.      Instead, he only came to 418 Dewey Street for

weekends and holidays.       Citing the testimony of Richards and that

of Arnold’s two sisters, Arnold claims that at the time of the

search in April 2004, he was living at his girlfriend’s apartment.

      The Government cites ample evidence of Arnold’s individual

control and dominion over the house, in particular that Arnold (1)

rented the property in his own name and paid all rent from January

                                      5
2003 to January 2005, (2) changed the lock after moving in to

restrict access, (3) installed a video surveillance system to

monitor the front door, (4) paid all utility bills, and (5) listed

418 Dewey Street as his place of residence on his driver’s license

and automobile insurance.     Responding to the claim that Arnold

lived at his girlfriend’s apartment, the Government also contends

that Arnold listed 418 Dewey Street as his address when he rented

a car from Enterprise on three occasions in April 2004.     Further,

the Government submits that the jury simply did not find Richards

credible, citing inconsistencies in his testimony at different

stages in the proceedings.      It also points to Richards’s two

admissions under oath that he did not have a key to the residence.

As the Government notes, “it is well-settled that credibility

determinations are the sole province of the jury.”    United States

v. Cathey, 259 F.3d 365, 368 (5th Cir. 2001).

     Given all of the evidence cited by the Government, this is not

a case of joint occupancy.   Nor is it difficult to see why the jury

did not credit Arnold’s argument that he lived elsewhere.    Viewing

the evidence in the light most favorable to the jury’s verdict, it

is clear that a rational jury could have concluded that Richards

was not credible, that Arnold occupied the house at 418 Dewey

Street as its resident and therefore that he had constructive

possession of the crack through his “dominion or control ... over

the premises in which the contraband is located.”     Cardenas, 748

F.2d at 1019.

                                 6
                                      2

     Arnold’s challenge to the sufficiency of the evidence to

convict him on Count 2 (possession of a firearm by a felon)

recapitulates much of what he argued as to Count 1, namely that he

did not have dominion and control over the residence.              We reject

this argument for the reasons cited above.            The additional claim

here is based on Richards’s testimony at trial that he purchased

the pistol, it belonged to him, and he put it in the location in

the house where it was found by police.        Arnold also contends that

no evidence ties him directly to the gun.            Support for the jury’s

finding   that    Richards   was    not   credible    on   this   issue,    the

Government offers, can be found in his admission under cross-

examination that he had previously testified that the gun was a

Glock, rather than a Ruger brand pistol.

     In the light of the inconsistencies in Richards’s testimony as

to the gun’s maker and the jury’s finding that Arnold was in

possession   of    a   gun   that   Richards   stated      belonged    to   him

(Richards), it is clear that the jury did not find Richards to be

credible.    And that was a determination for the jury to make.

Cathey, 259 F.3d at 368.

                                      3

     Arnold’s challenge to the sufficiency of the evidence to

convict him on Count 3 (possession of a firearm in furtherance of

a drug trafficking crime) does not cover any new ground.              For Count

3, the Government had to prove beyond a reasonable doubt that

                                      7
Arnold used or carried a firearm during and in relation to a drug

trafficking crime.         United States v. Tolliver, 61 F.3d 1189, 1218

(5th Cir. 1995).         Arnold’s challenge to the predicate drug crime is

the same as analyzed above as to Count 1.             Arnold also claims again

that no evidence showed Arnold “using or carrying the firearm” and

that the gun belonged to Richards.

       The Government correctly points out in reply that the firearm

part of Count 3 “does not depend on proof that the defendant had

actual possession of the weapon or used it in any affirmative

manner, but it does require evidence that the firearm was available

to provide protection to the defendant in connection with his

engagement in drug trafficking.” United States v. Raborn, 872 F.2d

589, 595 (5th Cir. 1989).           It argues again that the jury simply did

not credit the testimony of Richards.

       Taken   as    a    whole    and   “[v]iewing   the   evidence   and   the

inferences that may be drawn from it in the light most favorable to

the verdict,” there is little doubt that a “rational jury could

have   found   the       essential    elements   of   the   offenses   beyond   a

reasonable doubt.”         Valdez, 453 F.3d at 256.

                                          B

       The second issue on appeal is Arnold’s challenge to the trial

court’s admission of Rule 404(b) evidence.             The rule provides that

“[e]vidence 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

                                          8
purposes,     such   as   proof   of       motive,   opportunity,   intent,

preparation, plan, knowledge, identity, or absence of mistake or

accident.”     FED. R. EVID. 404(b).       Under our decision in Beechum,

Rule 404(b) evidence must pass a two-part test.           582 F.2d at 911.

“First, it must be determined that the extrinsic offense evidence

is relevant to an issue other than character. Second, the evidence

must possess probative value that is not substantially outweighed

by its undue prejudice and must meet the other requirements of Rule

403.”     United States v. Willis, 6 F.3d 257, 260 (5th Cir. 1993).

On appeal, the district court’s decision to admit such evidence is

reviewed for abuse of discretion. United States v. Pompa, 434 F.3d

800, 804 (5th Cir. 2005).

     Arnold first offers that the 1995 conviction does not show his

constructive possession of the drugs found in the house at 418

Dewey Street. He questions the relevance of this evidence, arguing

that the 1995 conviction is insufficiently similar to Count 1 to be

probative of his conduct in 2004.            He further claims that nine

years is simply too long a gap between his prior bad act and Count

1.

     We reject this argument because Arnold made his intent and

knowledge regarding the crack found in the house the critical

issues at trial.      Intent and knowledge are two of the purposes

cited in Rule 404(b) for the introduction of evidence of past

crimes.    Indeed, we have held that a trial court did not abuse its

discretion in admitting evidence of defendant’s prior convictions

                                       9
for possession of cocaine and possession with intent to distribute

cocaine, where prior convictions were expressly offered, admitted,

and presented to jury for the purpose of showing the defendant’s

intent to constructively possess crack. See Willis, 6 F.3d at 263.

     Furthermore, the amount of time that has passed since the

previous conviction is not determinative.          We have upheld the

admission of Rule 404(b) evidence where the time period in between

was as long as 15 and 18 years.         See United States v. Hernandez-

Guerra, 162 F.3d 863 (5th Cir. 1998); United States v. Chavez, 119

F.3d 342 (5th Cir. 1997).      Furthermore, “[t]he age of a prior

conviction does not bar its use under Rule 404.”       United States v.

Broussard, 80 F.3d 1025, 1040 (5th Cir. 1996).

     Arnold’s argument that the 1995 conviction is irrelevant to

whether he constructively possessed the drugs in question here

seems premised on a legal error.    Arnold argues that the amount of

drugs here “was undisputed; it was clearly enough to show ‘intent

to distribute.’”    That “intent” is not the same “intent” that Rule

404(b) offers as a legitimate purpose for the introduction of a

prior conviction.    “Intent” for Rule 404(b) concerns whether the

defendant had the requisite state of mind to commit the charged

crime.3 The rationale for admitting this evidence is “that because

the defendant had unlawful intent in the extrinsic offense, it is

less likely that he had lawful intent in the present offense.”

     3
      This crime, meanwhile, presumes a different “intent” -- the
intent to distribute from the amount of drugs possessed.

                                   10
Beechum, 582 F.2d at 911.        Arnold denies that the drugs found at

the Dewey Street residence were in his possession.                 Thus, under

Rule 404(b), the 1995 drug conviction can be probative of whether

Arnold controlled and possessed these drugs found at this residence

in 2004.     In sum, it seems clear that the district court did not

abuse its discretion in admitting Arnold’s 1995 conviction.

                                        C

     Arnold’s final challenge is to the district court’s decision

to allow the Government to amend its Notice and Information of

Prior Conviction after trial.         Section 851 requires that the U.S.

Attorney file such an information with the court before trial in

order   to   take   advantage    of    sentence     enhancements    for   prior

convictions.    21 U.S.C. § 851(a)(1) (2006).          The information must

list the previous convictions to be relied upon and the statute

also provides that “[c]lerical mistakes in the information may be

amended at any time prior to the pronouncement of sentence.”                Id.

“The sufficiency of a § 851(a) information is a question of law;

therefore, we review the adequacy of the Government’s compliance

with § 851(a) de novo.”    United States v. Steen, 55 F.3d 1022, 1025

(5th Cir. 1995).     If the Government “fails to comply with § 851's

procedural     requirements,    a     district    court   cannot    enhance   a

defendant’s sentence.”     Id.

     Arnold contends that in its August 16, 2004 Information the

Government did not make a clerical error, as found by the district

court, but instead a legal one.             Although “clerical error” is not

                                       11
defined   by   §     851,   we   have       previously   found    guidance     for

interpreting it in the Federal Rules of Civil Procedure (especially

Rule 60(a)) and Criminal Procedure (especially Rule 7(c)(3)) and

case law applying those rules.                 Steen, 55 F.3d at 1026 n.3.

Generally, “the relevant test for the applicability of Rule 60(a)

is whether the change affects substantive rights of the parties and

is therefore beyond the scope of Rule 60(a) or is instead a

clerical error, a copying or computational mistake, which is

correctable under the Rule.”             Id.    We have also held that “an

enhancement information performs a function in sentencing analogous

to the function an indictment or information performs in bringing

the initial charges.          Thus Rule 7(c)(3) applies to sentencing

enhancement informations.”           United States v. Garcia, 954 F.2d 273,

276 (5th Cir. 1992). “Incorrect citations of statutes are harmless

under   Rule   7(c)(3)      unless    the    defendant   was     misled   to   his

prejudice.”    Id.

     Arnold argues, as he must, that he was misled to his prejudice

and that his substantial rights were affected by the Government’s

error in citation.      The purpose of putting the enhancement statute

citation in the information, Arnold contends, is not only to

provide notice about the convictions upon which the Government will

rely, but also to indicate the possible sentence faced under the

enhancement provision. As Arnold’s appellate brief put it, “in the

first Notice, the Government tells you that they are seeking an

enhanced punishment range from 10 years to life.                  In the second

                                        12
Notice, the Government tells you that they are seeking a mandatory

life sentence.”           Indeed § 841(b)(1)(B), the statute cited in the

August 2004 information, provides that “[i]f any person [violates

§ 841(a)] ... after a prior conviction for a felony drug offense

has become final, such person shall be sentenced to a term of

imprisonment which may not be less than 10 years and not more than

life imprisonment ....”            Subparagraph 841(b)(1)(A), cited in the

amended February 2005 information, by contrast provides that “[i]f

any person commits a violation of this subparagraph . . . after two

or more prior convictions for a felony drug offense have become

final, such person shall be sentenced to a mandatory term of life

imprisonment without release ....”4              Which section applies depends

on the amount of drugs the defendant is alleged to have had.

Subparagraph 841(b)(1)(B) covers violations involving 5 grams or

more       of   cocaine    base,   while    841(b)(1)(A)    covers    violations

involving 50 grams or more.

       Arnold’s argument, then, is that citing the wrong statute

holds serious consequences, because instead of thinking that he

faced life in prison without the possibility of parole, Arnold

believed        he   faced   10    years    to   life.     As   the   Government

acknowledges, at both his original May 2004 indictment and the



       4
      The base sentence under § 841(b)(1)(A) is 10 years to life.
There is also an enhancement for one-time offenders under §
841(b)(1)(A) to a term of 20 years to life. Section 841(b)(1)(B)
does not differentiate between one and two-time offenders.

                                           13
August 2004 first superseding indictment, Arnold was advised by the

district court that he faced 10 years to life.

      The Government acknowledges the error made in the August 2004

Notice and makes two primary arguments for its position that the

error was a clerical one and the district court did not err in

allowing the Notice to be amended post-conviction in February 2005.

First, the Government asserts that notices under § 851(a) are

designed to give the defendant warning of the prior convictions the

will rely on, not to identify possible sentencing ranges.                     As we

stated in discussing the legislative history of § 851(a), “Congress

intended that defendants receive notice of the prior convictions on

which the court is relying in time for the defendants to challenge

the use of those convictions.”             Steen, 55 F.3d at 1027.          Arnold,

the Government points out, is not challenging the sufficiency of

the   information    regarding     his     prior     convictions,     nor    did   he

challenge the validity of those convictions.              Thus, the Government

complied   with     the   statute,       even   though   it   cited    the    wrong

subparagraph.

      The Government is correct to point out that in Steen we

identified   the    purpose   of     §    851   as   providing   notice      to    the

defendant of the prior convictions so that they may be challenged.

55 F.3d at 1027.      Support for this was found in United States v.

Belanger, 970 F.2d 416, 418 (7th Cir. 1992), which stated “that §

851 was enacted to satisfy [the] due process requirement of notice

and opportunity to be heard.”            Steen, 55 F.3d at 1027 note 9.           More

                                          14
recently, in a case in which the Government failed to make the

required § 851 filing, we stated that “the main purpose of § 851

... is to inform the defendant that the government intends to seek

a sentencing enhancement ....”        United States v. Dodson, 288 F.3d

153, 159 (5th Cir. 2002).         The Eleventh Circuit, meanwhile, has

held that “[t]here are two purposes for this provision....               The

first is to allow the defendant to contest the accuracy of the

information.     The second is to allow defendant to have ample time

to determine whether to enter a plea or go to trial and plan his

trial strategy     with    full   knowledge   of   the   consequences   of a

potential guilty verdict.”         United States v. Williams, 59 F.3d

1180, 1185 (11th Cir. 1995).        We believe, certainly as applied to

this appeal, that the Eleventh Circuit has stated the guiding

purposes of § 851.        Although the primary purpose of § 851 is to

allow the defendant to contest the use of the prior convictions, it

is also designed to inform defendants of the possible sentencing

consequences of a guilty verdict under the enhancement provision at

issue.

     The Government’s second argument is that Arnold could not

reasonably have been prejudiced by the incorrect citation.               The

first basis for this position is that § 851(b)(1)(B) refers to

violations of more than 5 grams of cocaine base and Arnold had been

repeatedly advised that he was being charged with possessing more

than 50 grams.    That amount is listed in § 851(b)(1)(A).        Therefore



                                     15
Arnold had to know that the Government had made a clerical error

and the appropriate penalty subparagraph was the one that cited the

amount of drugs listed in Count 1.    The second basis is that §

841(b)(1)(B) would “not entail enhanced punishment at all” because

its maximum sentence is the same as what Arnold was originally

advised was the range for Count 1, namely 10 years to life.5

     To recapitulate, Arnold’s claim is that he was misled to his

prejudice because of the potentially confusing fact that both

relevant subparagraphs of § 841(b)(1) include a statutory range of

10 years to life imprisonment.    While Arnold makes no claim that

his defense at trial would have been different had the Government


     5
      It appears the Government and the district court may have
made a minor mistake (or, at least, an elision) here. In its brief
the Government stated that “the District Court correctly analyzed
that such an enhancement under Section 841(b)(1)(B) would pertain
to an offense involving 5 grams or more of cocaine base, and would
require a statutory sentencing range of not less than five years
and not more than forty years, unless death or bodily injury
results from the use of such substance, then the range increases to
not less than 20 years and not more than life.           Since the
indictment charged an amount of cocaine base of 50 grams or more,
contained no allegation of death or bodily injury resulting from
the use of the cocaine base, and since Appellant had been arraigned
and advised that his penalty range upon conviction was 10 years to
life, an enhancement notice under ... 841(b)(1)(B) would be not
entail enhanced punishment at all” (sic). While it is true that
the amounts of cocaine base were different and there was no
allegation of death or bodily injury, this discussion leaves out
the enhancement for prior felony drug offenders under sub-paragraph
(B), which increases the standard five to 40-year range to 10 to
life imprisonment. This is the only prior conviction enhancement
under § 841(b)(1)(B). Recognizing this makes Arnold’s argument
that he reasonably relied on the range in the mis-cited sub-
paragraph much more comprehensible. If he was told “10 years to
life” and then looked up § 841(b)(1)(B), he would have found that
range as the sentence enhancement for prior felony drug offenders.

                                 16
not made this error, it is understandable that he might have taken

a different tack in plea-bargaining or trial strategy had he known

he was facing a mandatory minimum of life imprisonment.

     At oral argument, it was suggested by the Government that

Arnold was aware that he faced a mandatory life sentence if he went

to trial and was found guilty.       If this fact was known to him and

to his attorneys, then the erroneous citation in the Government’s

Enhancement Notice would constitute a clerical error, because it

would not have prejudiced him or affected his substantial rights.

At oral argument Arnold was represented by different counsel than

at trial and consequently counsel for Arnold was unable to confirm

or deny the content of the discussions between the parties during

pre-trial conferences.     The record before us is inconclusive on

Arnold’s knowledge of a possible life sentence, and consequently we

find that it is inadequate to make a decision in which we would

have full confidence.

     Thus we think a limited remand is required in this case.              The

district court should conduct a hearing at which the Government and

Arnold will be permitted to call witnesses and introduce exhibits

and other appropriate evidence to help the trial court determine

whether Arnold   was    aware    before    trial   that   a   mandatory    life

sentence could   be    imposed    upon    his   conviction;    and,   if   not,

whether, in this particular case, such ignorance did in fact make

any difference in the defense conduct respecting the case.                 The



                                    17
district court should make adequate findings and conclusions for

purposes of a possible appeal.

                                  III

       For the reasons cited above, Arnold’s conviction on all three

counts is AFFIRMED. His challenge to the district court’s decision

that    the   incorrect   statutory        citation   in   the   Government’s

Sentencing Enhancement Notice was clerical error is REMANDED to the

district court for a limited evidentiary hearing on that issue and

such other necessary proceedings that are not inconsistent with

this opinion.

              AFFIRMED in part and REMANDED for further proceedings.




                                      18
