                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                    UNITED STATES COURT OF APPEALS
                                                             February 6, 2007
                         FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk


                             No. 06-40483
                       consolidated w/ 06-40530



     UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

                                  v.

     GERMAN MARTINEZ-ROSAS,

                                         Defendant-Appellant.



         Appeals from the United States District Court for the
               Southern District of Texas, Corpus Christi
                             2:05-CR-681-ALL



Before REAVLEY, JOLLY, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     German Martinez-Rosas, a Mexican national, was charged with

one count of illegal reentry following deportation, in violation of

8 U.S.C. § 1326.     At a short jury trial, Martinez-Rosas testified

that he believed, albeit mistakenly, that he had a right to be in

the country.    He maintained that a former employer had provided him

with the necessary paperwork and a social security number, but he


     *
       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this opinion should not be published and is not precedent except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.
was unable to provide evidence of either one.              The government

introduced evidence showing that Martinez-Rosas had been convicted

of illegal reentry on two previous occasions.        After deliberating,

the jury found Martinez-Rosas guilty.        At sentencing, the district

judge found that Martinez-Rosas, by way of his new conviction, had

violated   the   terms   of   a   previous   sentence,   and   revoked   his

supervised release from the prior case.        Martinez-Rosas now raises

two main arguments on appeal.1       First, he argues that evidence of

his prior convictions was improperly admitted character evidence,

or, alternatively, that the district judge should have given a

detailed limiting instruction. Second, he argues that, because his

new conviction is invalid, the revocation of his supervised release

was also invalid.

     Martinez-Rosas did not object to the introduction of his prior

criminal history at trial, so we review it for plain error only.

See United States v. Hernandez-Guevara, 162 F.3d 863, 870 (5th Cir.

1998).   We will correct forfeited errors when the appellant shows

(1) that there was an error, (2) that it was clear or obvious, and

(3) that the error affected substantial rights, meaning that it

must be prejudicial and affect the outcome of the district court


     1
      Mr. Martinez-Rosas also includes a third argument, that the
enhancement provisions of 8 U.S.C. § 1326(b) are unconstitutional.
He rightly concedes, however, that this argument is presently
foreclosed by the Supreme Court’s decision in Almendarez-Torres v.
United States, 523 U.S. 224 (1998). He raises it here solely to
preserve possible review should the Court later revisit that
opinion. Accordingly, we do not consider it further.

                                      2
proceeding.        Id. (citing United States v. Olano, 507 U.S. 725,

731–35 (1993)).       Also, because plain error review is discretionary

rather than mandatory, we “should correct a plain error affecting

substantial        rights    only   if    the    error    ‘seriously     affects     the

fairness, integrity or public reputation of judicial proceedings.’”

Id. at 870 (quoting Olano, 507 U.S. at 736).

       Against     this     backdrop,     we    find    Martinez-Rosas’      arguments

unavailing.        It is beyond doubt that extrinsic evidence of this

sort is not admissible to prove the defendant’s bad character and

action consistent with that character, but it may be introduced for

the    limited     purpose     of   proving      motive,     opportunity,      intent,

preparation, plan, knowledge, or absence of mistake or accident.

See FED. R. EVID. 404(b); see also Hernandez-Guevara, 162 F.3d at

870.     We have said that Rule 404(b) calls for a two-step test.

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

banc).      “First, it must be determined that the extrinsic offense

evidence is        relevant    to    an   issue    other    than   the      defendant’s

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.”                   Id.

       In   this    case,    the    evidence      was    admissible    to    prove   the

defendant’s knowledge and the absence of any mistake.                       The defense

theory was that Martinez-Rosas believed that he had a right to be

in the country, and the defendant himself testified to that effect.


                                            3
That claim is naturally undermined by evidence that he had been

convicted of illegal reentry on two previous occasions, both of

which apparently occurred after the defendant purportedly received

a social security number and other documentation. Along those same

lines, the government elicited testimony from the defendant that he

had been previously deported to Mexico and warned by an immigration

officer not to return to the United States without applying for

permission.     Our review of the record satisfies us that the

evidence of Mr. Martinez-Rosas’ past convictions was introduced for

an   appropriate   purpose   pursuant    to   Rule   404(b),   and   not   as

substantive proof of his guilt.

      We are similarly satisfied that the evidence is more probative

than prejudicial, as required by Rule 404(b) and our opinion in

Beechum.    582 F.2d at 911.   Martinez-Rosas never objected on Rule

404(b) grounds, so the district court did not conduct an on-the-

record Beechum hearing, nor was it required to do so sua sponte.

United States v. Greenwood, 974 F.2d 1449, 1462 n.8 (5th Cir.

1992).     As a result, there is nothing in the record that reveals

that court’s view of the evidence.        However, for the reasons set

forth above, we are satisfied that the admission of the evidence

was proper, and certainly not plain error.

      Finally, Martinez-Rosas argues that the district court failed

to give a proper limiting instruction on the purpose for which his

prior convictions were admitted.        Here again the defendant failed


                                   4
to object to the court’s instruction or to request an alternative.

The court did tell the jury that the defendant was “not on trial

for any act, conduct or offense not alleged in the indictment.”              We

have previously expressed our view that this instruction is not

ideal, but it does not constitute plain error.               See United States

v. Prati, 861 F.2d 82, 86–87 (5th Cir. 1988).            As we said in Prati,

the district court “should have cautioned the jury to consider the

extrinsic     act/offense   evidence     only     as    it   related   to   the

defendant’s [knowledge],” but we do not believe the omission of the

specific instruction is plain error in this case.             Id.   We note, as

we did in Prati, that the district court “carefully instructed the

jury concerning the crimes charged in the indictment, the elements

of those crimes and what the jury must find to convict the

defendant on each count.”          Id.      In addition, the government

presented other evidence showing that Martinez-Rosas was in fact an

alien who had been deported and returned without permission.

Accordingly, we cannot say that the error, if any, was so severe

and prejudicial as to affect the fairness, integrity or public

reputation of judicial proceedings.

      Because we affirm Martinez-Rosas’ conviction, we find no error

in   the    district   judge’s   decision    to   revoke      the   defendant’s

supervised release on the basis of that conviction.

      The    defendant’s    conviction    and     the    revocation    of   his

supervised release are AFFIRMED.


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