                                                                 United States Court of Appeals
                                                                          Fifth Circuit
                                                                       F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                        December 7, 2005

                                                                   Charles R. Fulbruge III
                                  No. 04-51366                             Clerk
                                Summary Calendar


                        UNITED STATES OF AMERICA,

                           Plaintiff-Appellee,

                                     versus

                        JOSE LUIS ORONA-CASTILLO,
                           Defendant-Appellant.

                        --------------------
           Appeal from the United States District Court
                 for the Western District of Texas
                     USDC No. 4:04-CR-170-ALL-H
                        --------------------
Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges

PER CURIAM:*

     Jose Luis Orona-Castillo appeals his jury-trial conviction and

sentence for aiding and abetting the possession of marijuana with

intent to distribute and use of a person under the age of 18 in a

drug-trafficking offense.         He first argues that the district court

erred    when   it   admitted    evidence     of   his   1998   conviction     for

misprision of a felony.         Orona-Castillo asserts that the evidence

was introduced to show his bad character and not to show identity,

intent, motive, or knowledge.

     Because Orona-Castillo asserted that he was not involved in

the smuggling of marijuana, his intent was at issue and the


     *
       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this opinion should not be published and is not precedent except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.
                             No.04-51366
                                 -2-

admission of evidence of extrinsic acts was therefore relevant to

intent. See United States v. Wilwright, 56 F.3d 586, 589 (5th Cir.

1995).    As the prior arrest and the charged offense both involved

Orona-Castillo’s   involvement   with   marijuana,    the   evidence   was

relevant to an issue other than character.      See United States v.

Gordon, 780 F.2d 1165, 1173 (5th Cir. 1986); United States v.

Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en banc).

     The facts surrounding the prior arrest and the charged offense

were similar and involved the same intent.           The district court

issued a limiting instruction regarding the evidence of the prior

arrest both at the time the evidence was presented and in the jury

charge.     Additionally, the presentation of the evidence of the

prior arrest at trial did not occupy a significant portion of the

trial, the prior arrest was not a crime of greater magnitude than

the charged offense, and the jury is presumed to have followed the

district court’s instruction limiting its consideration of the

prior arrest.   Accordingly, the prejudicial effect did not greatly

outweigh the probative value.        See United States v. Hernandez-

Guevara, 162 F.3d 863, 872 (5th Cir. 1998); United States v. Scott,

48 F.3d 1389, 1396-97 (5th Cir. 1995); Beechum, 582 F.2d at 914.

The district court did not abuse its discretion by admitting the

evidence.    See Beechum, 582 F.2d

at 911.

     Orona-Castillo avers that the evidence was insufficient to

support his convictions on Counts One, Two, and Five.        Viewing the
                              No.04-51366
                                  -3-

evidence in the light most favorable to the Government, we conclude

that a rational juror could have found that Orona-Castillo aided

and abetted in the possession of the marijuana as alleged in Counts

One and Two and that he did knowingly use a person under the age of

18 to possess with intent to distribute 1000 kilograms or more of

marijuana as alleged in Count Five.     See United States v. Greer,

137 F.3d 247, 249 (5th Cir. 1998); United States v. Lopez, 74 F.3d

575, 577 (5th Cir. 1996); 21 U.S.C. § 861(a)(1).

     With regard to Count One, Joe Eric White testified that he

transported marijuana for Orona-Castillo. He testified that he was

asked   by   Orona-Castillo   to   purchase     Suburbans   which   were

subsequently used to transport loads of marijuana. White testified

that on November 18, 2003, he and Orona-Castillo “scouted” the

route to be used to transport and drop off the load of marijuana.

White testified that Orona-Castillo told him what route to take in

order to circumvent the checkpoint.         According to White, he and

Orona-Castillo made the plan to run the load of marijuana on

November 18, but that Orona-Castillo was “the organizer.”        A total

of 615.950 pounds of marijuana was recovered from the pickup that

White was driving.   Directing the procurement of load vehicles and

instructing White on how to avoid detection is conduct designed to

aid the venture or to assist the perpetrator of the crime.

     With regard to Counts Two and Five, Benjamin Ornelas testified

that in the morning of December 6, 2003, he picked up a red and

gray Suburban which had been loaded with marijuana.         The Suburban
                                 No.04-51366
                                     -4-

was one of the Suburbans that Orona-Castillo directed White to

purchase.    Ornelas was transporting approximately 3,000 pounds of

marijuana.    Juan Torres, who also transported marijuana for Orona-

Castillo, testified that Orona-Castillo had complained to him on

one occasion that he had lost a load of marijuana when a Suburban

flipped over while being driven by “a kid.”              Ornelas was 17 years

old at the time.

     Orona-Castillo        contends   that     his   sentence    runs   afoul   of

United States v. Booker, 125 S. Ct. 738 (2005), because the

district court increased his offense level by four levels for his

leadership role.     He avers that this fact was not found by the jury

or admitted by him.        Orona-Castillo objected in the district court

on this ground and cited to the decision of Blakely v. Washington,

542 U.S. 296 (2004).

     Where, as here, a defendant has preserved a Booker challenge

in the district court, “we will ordinarily vacate the sentence and

remand, unless we can say the error is harmless under Rule 52(a) of

the Federal Rules of Criminal Procedure.”               See United States v.

Mares, 402 F.3d 511, 520 n.9 (5th Cir. 2005), petition for cert.

filed (Mar. 31, 2005) (No. 04-9517); United States v. Pineiro, 410

F.3d 282, 284 (5th Cir. 2005).          As the Government does not argue,

much less show, that the district court would have imposed the same

sentence    absent   the    Booker    error,    we   vacate     Orona-Castillo’s

sentence and remand for resentencing.            Given the foregoing, Orona-
                           No.04-51366
                               -5-

Castillo’s conviction is AFFIRMED.   His sentence is VACATED, and

the matter is REMANDED for resentencing.
