                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 04-2478
                                    ___________

United States of America,             *
                                      *
           Plaintiff - Appellee,      *
                                      * Appeal from the United States
     v.                               * District Court for the
                                      * Eastern District of Missouri.
Corey R. Thomas,                      *
                                      *
           Defendant - Appellant.     *
                                 ___________

                              Submitted: January 11, 2005
                                 Filed: February 23, 2005
                                  ___________

Before LOKEN, Chief Judge, MORRIS SHEPPARD ARNOLD and MURPHY,
Circuit Judges.
                            ___________

MURPHY, Circuit Judge.

       A jury convicted Corey R. Thomas of possessing with the intent to distribute
more than 50 grams of cocaine base, and he received a mandatory life sentence
because he had two prior convictions for distributing crack. Thomas appeals, arguing
that the district court1 abused its discretion by admitting evidence of his prior crimes
and from a search of his home and that his mandatory minimum life sentence violated
the Sixth Amendment. We affirm.

      1
       The Honorable E. Richard Webber, United States District Judge for the
Eastern District of Missouri.
      On March 27, 2003, two St. Louis police officers were patrolling in a marked
police vehicle when they saw Thomas leaning into the front window of a car in the
4100 block of McRee Avenue. As the officers approached, the car sped off, and
Thomas started walking towards the officers. They detained him, ran a check which
showed there was an outstanding warrant for a probation violation, and arrested him.
The officers then performed a patdown for weapons and found a clear plastic bag
containing a large ball of crack in Thomas' waistband and $550 in his jacket pocket.

       The crack was taken to a St. Louis laboratory for analysis, and it was
determined that the plastic bag contained 57.80 grams of crack. On April 3, 2003 a
federal indictment charged Thomas with possessing with the intent to distribute more
than 50 grams of a mixture or substance containing cocaine base, in violation of 21
U.S.C. § 841(a)(1), (b)(1)(A)(iii). The lab in St. Louis was not informed that a
federal prosecution was pending, and the crack was destroyed on October 9, 2003,
after a state court judge signed an order authorizing the destruction.

      Before trial Thomas moved to exclude evidence of his two prior convictions
involving the distribution of crack and evidence obtained from a search of his
residence. The district court denied the motion and instructed the jury that it could
not use the other crimes evidence to decide whether Thomas carried out the acts
involved in the offense charged in the indictment, that it could not convict him simply
because he may have committed similar acts in the past, and that it could consider the
evidence only on the issue of intent.

      DEA Special Agent Michael Davis testified about a search warrant that was
executed at Thomas' residence at 4239 McRee Avenue in September 2001. During
the search officers found two scales of the type used for measuring controlled
substances, three bags of crack totaling 6.07 grams, marijuana, and $7,440 in cash.
Thomas was arrested and admitted that the crack and marijuana found in the
residence were his.

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       Former St. Louis police officer Kevin Clinton testified that on February 3,
1994, he and his partner saw Thomas and another man sitting in a parked vehicle in
the 4200 block of McRee. A female pedestrian walked up to the driver side where
Thomas was sitting. Thomas then got out of the vehicle, took money from the
woman, handed the money to the passenger in the car, and took a plastic bag
containing a whitish substance from his jacket and handed it to the woman. After the
officers approached the vehicle and identified themselves, the woman put something
in her mouth and ran away. The officers arrested Thomas and recovered two plastic
bags containing 1.98 and 0.19 grams of crack, one from his jacket pocket and one
from the ground where Thomas had dropped it. They also recovered $50 in cash from
the male passenger.

       St. Louis police officer Dan Dell testified that on August 5, 1998 he was part
of an undercover team that bought 0.25 grams of crack for $20 from Thomas in the
area of the 4000 block of McRee.

       Thomas pled guilty to narcotics trafficking in the second degree in 1994 and
to the sale of a controlled substance in 1999, and certified copies of these convictions
were entered into evidence. The government also presented the testimony of an
expert witness who testified that 57.80 grams of crack was consistent with drug
distribution rather than personal use.

       Prior to the jury's deliberation, the district court again gave the instruction that
the prior acts evidence could not be used to decide whether Thomas carried out the
acts involved in the crime and that the jury could consider the evidence only on the
issue of intent. The court also instructed the jury on the four essential elements of the
offense: (1) the defendant possessed cocaine base; (2) the defendant knew he
possessed a controlled substance; (3) the defendant intended to distribute the
controlled substance; and (4) the amount defendant possessed with intent to distribute
was over 50 grams of cocaine base.

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       Soon after starting deliberations the jury sent a note asking the court to clarify
the use of Thomas' prior convictions. It stated, "Please clarify our use of prior
convictions as they relate to elements three and four on Instruction Sheet 14.
Instruction Sheet 5 says we may use evidence of prior acts to decide issues of intent.
Do we need to decide all four elements before considering prior acts, or may we use
prior acts to decide these elements?" In response, the court referred the jury to the
instruction relating to similar acts and repeated a portion of that instruction which
read, "In order to consider similar acts, you must first unanimously find beyond a
reasonable doubt based on the rest of the evidence introduced that the Defendant
carried out the acts involved in the crime charged in the indictment."

      The jury convicted Thomas of possessing with the intent to distribute more
than 50 grams of a mixture or substance containing cocaine base, in violation of 21
U.S.C. § 841(a)(1), (b)(1)(A)(iii). The government filed an information listing his
two prior felony drug convictions and requesting that he be sentenced to life in
prison, the statutory mandatory minimum sentence under 21 U.S.C. § 841(b)(1)(A)
based on his prior convictions. The district court sentenced Thomas to life in prison.

       Thomas appeals his conviction and sentence. He claims that the district court
abused its discretion by admitting evidence under Rule 404(b) relating to his two
prior convictions for distributing crack and the evidence from an earlier search of his
residence. He also argues that his sentence violated the Sixth Amendment because
his two prior convictions were not pled in the indictment or submitted to the jury.

      The district court has broad discretion in admitting other crimes evidence.
United States v. Mays, 822 F.2d 793, 797 (8th Cir. 1987). We review its Rule 404(b)
decision for abuse of discretion and "reverse 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. Howard, 235 F.3d 366, 372 (8th Cir. 2000)
(quoting United States v. Brown, 148 F.3d 1003, 1009 (8th Cir. 1998)). Under Rule

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404(b), evidence of a prior crime, though inadmissible to show that a person acted in
conformity with the prior act, may be admissible for other purposes, such as "proof
of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident." Fed. R. Evid. 404(b). Such evidence 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. United States v. Carroll, 207 F.3d 465,
469 n.2 (8th Cir. 2000); United States v. Jackson, 278 F.3d 769, 771 (8th Cir. 2002).

       Thomas argues that the district court erred in admitting the prior acts evidence
because it was used by the jury as propensity evidence, and he contends that the jury's
note to the court shows that it was confused about the proper use of the evidence. He
claims that his prior convictions for distributing crack were very different from the
crime charged here because they involved small amounts of crack, less than three
grams combined, and that they were too remote in time to be relevant. He also claims
that the prior acts evidence was not necessary to prove intent because the
government's expert witness testified that the amount he was charged with is
consistent with distribution rather than personal use. He argues that even if the
evidence were relevant, its prejudicial impact outweighed its probative value.

       The government argues that the Rule 404(b) evidence was properly admitted
because it was relevant on the issue of Thomas' intent as well as to show a common
scheme or plan. It contends that the evidence was highly probative on the issue of
intent and that the prejudicial impact was lessened by the instruction the district court
gave to the jury on three occasions. It also argues that the prior acts evidence was
close in time and similar in kind to the crime charged in the indictment.

       The prior acts evidence was relevant on the issue of whether Thomas had the
intent to distribute the crack found in his waistband. His two prior convictions were
based on sales of crack in the same neighborhood, and the evidence obtained from the

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search, including crack, scales, and a large amount of cash, suggested that Thomas
was involved in dealing crack. Although the prior acts involved small amounts of
crack compared to the 57.80 grams of crack Thomas had in his waistband on March
27, 2003, "evidence of prior possession of drugs, even in an amount consistent only
with personal use, is admissible to show such things as knowledge and intent of a
defendant charged with a crime in which intent to distribute drugs is an element."
United States v. Franklin, 250 F.3d 653, 658 (8th Cir. 2001) (quoting United States
v. Hardy, 224 F.3d 752, 757 (8th Cir. 2000)); United States v. Oates, 173 F.3d 651,
659-60 (8th Cir. 1999) (rejecting argument that prior conviction for possessing 4.4
grams of crack was irrelevant to distribution offense involving 53.1 grams of crack).

       The prior acts were similar in kind to the offense charged in this case. All of
the prior acts took place in the same neighborhood, within two blocks of his residence
on McRee Avenue, and involved crack. See United States v. Green, 151 F.3d 1111,
1114 (8th Cir. 1998) (admitting Rule 404(b) evidence of prior arrest involving same
narcotic). Moreover, when prior acts are admitted for the purpose of showing intent,
they "need not be duplicates" but only "sufficiently similar to support an inference of
criminal intent." Franklin, 250 F.3d at 659-60 (quoting United States v. Shoffner, 71
F.3d 1429, 1432 (8th Cir. 1995)). Thomas' convictions for distributing crack and the
evidence found in the search of his residence were similar enough to the charged
offense to support an inference of Thomas' intent to distribute crack.

       The prior acts took place in 1994, 1998, and 2001, and the charged offense
took place in 2003. There is no absolute rule for the number of years that can
separate evidence of offenses admitted under Rule 404(b). Instead we examine the
facts and circumstances of each case and apply a reasonableness standard. United
States v. Burk, 912 F.2d 225, 228 (8th Cir. 1990). Here, evidence from the
September 2001 search of Thomas' residence was found less than two years before
Thomas was arrested in March 2003. See Franklin, 250 F.3d at 659 (evidence of prior
crime more likely to be admissible the closer in time to the crime charged). Thomas

                                         -6-
was arrested for his prior convictions some four and a half and nine years before his
arrest in this case. We have previously approved the admission of other crimes
evidence for acts committed up to 13 years before the crime charged, United States
v. Rush, 240 F.3d 729, 731 (8th Cir. 2001), and the time lapse here was not
unreasonable given the similarities between Thomas' prior convictions and the current
offense.

        The district court must balance the probative value of the prior acts evidence
against its prejudicial effect, and its decision in this case is entitled to deference.
United States v. Mays, 822 F.2d 793, 797 (8th Cir. 1987). Moreover, the use of a
limiting instruction decreases the danger that unfair prejudice will result from
admission of the evidence. Id. Here the district court gave a limiting instruction to
the jury that the evidence could be used only on the issue of intent, not to show that
Thomas would be more likely to have committed this offense if he had committed
similar acts in the past. When the jury asked a question about the use of the evidence,
the court told it that before using the evidence it had to first find that Thomas
committed the acts alleged in the indictment beyond a reasonable doubt and referred
it to the instruction regarding prior acts. We conclude that the district court did not
abuse its discretion in admitting the evidence of his prior dealing in crack and from
the search of his residence in 2001.

       Thomas also argues that his mandatory life sentence under 21 U.S.C. §
841(b)(1)(A) violated the Sixth Amendment because his prior convictions were not
pled in the indictment or submitted to the jury. He contends that the prior conviction
exception in Apprendi v. New Jersey, 530 U.S. 466 (2000), did not survive Blakely
v. Washington, 124 S. Ct. 2531 (2004).

       The Supreme Court has consistently held that a prior felony conviction is a
sentencing factor and not a separate offense and it therefore does not need to be pled
in the indictment or put to a jury. Almendarez-Torres v. United States, 523 U.S. 224

                                         -7-
(1998). That rule was maintained in Apprendi, 530 U.S. at 490, where the Court
excluded the fact of a prior conviction from those issues which must be tried to a jury
or admitted by a defendant. United States v. Booker, 125 S. Ct. 738, 756 (2005),
specifically reaffirmed that holding: "Any fact (other than a prior conviction) which
is necessary to support a sentence exceeding the maximum authorized by the facts
established by a plea of guilty or a jury verdict must be admitted by the defendant or
proved to a jury beyond a reasonable doubt." We conclude that the mandatory life
sentence imposed by the district court was not unconstitutional.

       The district court did not abuse its discretion in admitting the prior acts
evidence under Rule 404(b), and the sentence imposed by the district court did not
violate the Sixth Amendment. We accordingly affirm the judgment.
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