                                                     United States Court of Appeals
                                                              Fifth Circuit
                                                           F I L E D
                     REVISED MARCH 29, 2007
                 UNITED STATES COURT OF APPEALS            March 28, 2007
                      For the Fifth Circuit
                                                       Charles R. Fulbruge III
                                                               Clerk

                           No. 05-20982




                    UNITED STATES OF AMERICA,

                                                Plaintiff-Appellee,


                              VERSUS


                         TAJ KAREEM SMITH


                                                Defendant-Appellant



          Appeal from the United States District Court
               For the Southern District of Texas



Before DAVIS and STEWART, Circuit Judges, and CRONE*, District

Judge.

W. EUGENE DAVIS, Circuit Judge:**

     In this direct criminal appeal, Taj Kareem Smith (“Smith”)

challenges his conviction and sentence for (1) possession with


     *
      District Judge of the Eastern District of Texas, sitting by
designation.
     **
      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this opinion should not be published and is not precedent except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.

                               -1-
intent to distribute one kilogram or more of PCP, (2) possession of

a firearm in furtherance of a drug trafficking crime, and (3)

possession of a firearm by a convicted felon (Counts I, II, & III

respectively).     Finding sufficient evidence to support the jury’s

verdict and rejecting defendant’s other points of error, we AFFIRM.

                                     I.

     On April 5, 2004, Houston police officers went to execute a

search warrant at the Quail Chase Apartments, apartment number

2702,    and   arrest   warrants   for     the   Defendant     Smith   and   his

companion, Schamika Satchell (“Satchell”). Officers observed Smith

and Satchell enter the apartment along with three children, stay

for a short time, and then leave again.                After they left the

apartment, officers arrested Smith and Satchell in the apartment

parking lot and used Smith’s key to enter the apartment.

     During their search, after detecting the strong smell of PCP,

the officers found two Gatorade bottles and a Pine Sol bottle in a

cabinet   under   the   kitchen    sink    which    together    contained    1.4

kilograms of liquid PCP.       Behind the bottles were small plastic

vials.    A loaded rifle was also found behind the living room sofa.

In the bedroom, the police found men’s clothes, Smith’s Texas

identification     card,   Smith’s   Texas       Department    of   Corrections

identification card, and two prescription pill bottles, one with

Smith’s name and another with his mother’s.           The police also found

$1,360 in cash inside the drawer of a nightstand by the bed.

     At the scene, after receiving a Miranda warning, Smith told a

                                     -2-
police officer that he stayed at the apartment occasionally and

left his clothing and identification there, but that it was not his

permanent address.

     Smith’s first trial ended in a mistrial after the district

court found that the prosecutor had improperly gone outside of the

record and mischaracterized evidence during closing argument.

     At Smith’s second trial, in addition to testimony about the

April 5, 2004, arrest, police officers testified that on April 1

and April 2, 2004, they had observed an individual fitting Smith’s

description    engaging   in    what     they    concluded     were    narcotics

transactions with a number of people who entered and exited the

Quail Chase apartment unit for short visits.                 The officers also

told the jury that the small plastic vials recovered from under the

kitchen sink would be useful in the distribution of the nearly

$100,000 worth of PCP found in the apartment.                In addition, over

defense   objection,   the     government       introduced    two     of   Smith’s

previous convictions for the sale of a controlled substance (crack

cocaine) in 1998.

     On the issue of whether Smith lived in the apartment, the

government presented the testimony of Kreshelle Dixon (“Dixon”),

who testified that she was the lease holder of the apartment

involved in the case and that she had subleased the apartment to

Satchell.     Dixon indicated that on “some occasions” Smith was

present in the apartment when she visited Satchell and that Smith

on “some occasions,” answered the phone, even when Satchell was not

                                       -3-
there.      A police officer also testified that the clothes found at

the apartment appeared to be the right size to fit Smith.

      At the close of the case, the jury convicted Smith on all

three counts.

      At sentencing, the primary issue was whether Smith’s two

previous Texas convictions for delivery of a controlled substance

should be treated as a single conviction rather than two separate

convictions for purposes of sentencing.              The convictions resulted

from Smith’s sale of crack cocaine to an undercover police officer,

once on December 9, 1998, and again on December 10, 1998.                         The

district court declined to treat Smith’s two convictions as a

single conviction, and as a result, the court found that it was

required, pursuant to 21 U.S.C. § 841(b)(1)(A), to sentence Smith

to   life    imprisonment      on   Count    I   (possession      with   intent    to

distribute).1

      On    appeal,    Smith   raises    5     issues:   (1)   the    evidence    was

insufficient to support the verdict and life sentence on Count I

and Count II of the indictment; (2) the district court erred in

admitting,      as    Rule   404(b)     evidence,    the    two      previous    drug

convictions; (3) the district court erred by not dismissing the

charges against Smith on double jeopardy grounds; (4) the district

      1
      In addition, the district court sentenced Smith to 60
months on Count II (firearm in furtherance of drug trafficking)
to run consecutively with Count I, and 120 months on Count III
(felon in possession of a firearm), to run concurrently with
Count I, for a total term of imprisonment of life plus 60 months.
Smith does not challenge the sentences imposed on those counts.

                                         -4-
court erred in not aggregating Smith’s prior convictions for

purposes     of     sentencing;    (5)        Smith’s    life    sentence      was

unconstitutionally imposed.

                                        II.

     Smith first argues that the district court erred in failing to

grant his motion for judgment of acquittal on possession of the PCP

with intent to distribute based on his argument that the evidence

was insufficient to support the charge.

     Where    the    defendant    has   preserved       his   challenge   to   the

sufficiency of the government’s evidence, we “review de novo the

district court’s denial of a motion for judgment of acquittal.”2

Viewing all evidence in the light most favorable to the verdict,

the court must determine whether any rational jury could conclude

from the evidence presented at trial that the government has proven

all the elements of the offense beyond a reasonable doubt.3

     To convict for the offense of possession with intent to

distribute, the government must prove that the defendant knowingly

possessed a controlled substance with the intent to distribute it.4

Smith argues that the government has failed to establish that he




     2
      United States v. Carbajal, 290 F.3d 277, 289 (5th Cir.
2002).
     3
      Id.
     4
      United States v. Jones, 133 F.3d 358, 362 (5th Cir. 1998).

                                        -5-
knowingly possessed the PCP.5

     Possession may be actual or constructive and may be proved by

circumstantial     evidence.6     Constructive   possession   can   be

established by showing (1) ownership, dominion or control over an

item; or (2) dominion or control over the place where the item is

found.7     Although a defendant’s exclusive occupancy of a premises

may establish his dominion and control over an item found there,

his joint occupancy of a premises cannot, by itself, support the

same conclusion.8 Where the defendant jointly occupies or controls

a premises, the government must, in addition to showing control

over the place where the item was found, present evidence to

support at least a plausible inference that the defendant had

knowledge of and access to the illegal item.9

     Smith first argues that he did not live in or control the



     5
      Smith concedes that if the government makes its case on
possession, other evidence, such as the quantity of PCP and the
vials found in the kitchen, allows a reasonable jury to infer
intent to distribute.
     6
      Id.
     7
      United States v. Salinas, -- F.3d ---, 2007 WL 646132, *6
(5th Cir. March 05, 2007) (citing United States v. De Leon, 170
F.3d 494, 496 (5th Cir.1999)).
     8
      United States v. Hinojosa, 349 F.3d 200, 203-04 (5th Cir.
2003); see also United States v. Martin, 483 F.2d 974, 975 (5th
Cir. 1973) (mere presence in the area where the narcotic is
discovered or mere association with the person who does control
the drug or the property where it is located is insufficient to
support a finding of possession).
     9
      De Leon, 170 F.3d at 497.

                                  -6-
Quail Chase apartment unit with Satchell.              In support, he cites

testimony from his grandmother that he was living primarily with

her during the time surrounding his arrest.            He notes that the pill

bottles recovered at the apartment corroborate this testimony

because one of the prescriptions had his grandmother’s address and

the other had his mother’s address.             Alternatively, Smith argues

that, even if the government has established that he lived in the

apartment with Satchell, the evidence was insufficient to establish

that he exercised dominion and control over the PCP. Smith pointed

out that the PCP was hidden under the sink in non-obvious bottles,

his fingerprints were not found on the PCP bottles, and he did not

have PCP or PCP residue on his person when he was arrested.

Because Satchell and perhaps others had access to the apartment,

Smith continues, the evidence is consistent with a scenario where

others placed the PCP in the kitchen cabinet without his knowledge.

      Even if we assume Smith did not live full time at the Quail

Chase apartment, the government presented substantial evidence in

support of the conclusion that Smith exercised joint dominion and

control over the premises.            Here, along with the presence of

Smith’s identification cards, Smith’s pill bottles, Smith’s gun,

and   clothes   which   would   fit    Smith,    the   government   presented

evidence that Smith possessed a key to the apartment as well as the

testimony of Dixon that Smith was at times in the apartment alone.




                                      -7-
This evidence strongly supported a finding of joint occupancy.10

     Further, we are satisfied that the circumstantial evidence

supports at least a plausible inference that Smith knew of the PCP

in the apartment.       The strong scent of the PCP emanating from the

three     bottles    beneath    the   sink,   Smith’s   multiple    short   term

visitors on April 1 and 2 of 2004, the quantity and value of the

PCP recovered, the loaded rifle (which Smith admitted he was

holding), the cash inside the nightstand, the small vials, and

Smith’s previous convictions could lead a reasonable jury to infer

that Smith knew about and sold PCP out of the apartment.

     When taken as a whole, the evidence suggests that Smith

knowingly possessed the PCP.            The jury was entitled to conclude

that the totality of these circumstances made it unlikely that

Smith was ignorant of the PCP’s presence.

                                       III.

     Smith next argues that the district court erred in admitting

evidence of two previous convictions for delivery of a controlled

substance.

     We     review    alleged    violations    of   Rule   404(b)   under    the

two-pronged test of United States v. Beechum.11            That test requires



     10
      Cf. De Leon, 170 F.3d at 496 (defendant exercised control
and dominion over his girlfriend’s house where evidence showed,
among other things, the defendant had authority to keep personal
belongings in the house and to come and go as he pleased).

     11
          582 F.2d 898 (5th Cir. 1978).

                                        -8-
us to verify (1) that the evidence of extraneous conduct is

relevant to an issue other than a defendant's character, and (2)

that        the   evidence   possesses    probative   value   that   is   not

substantially outweighed by its prejudicial effect and is otherwise

admissible under Rule 403.12        A district court’s decision to admit

extrinsic evidence under Rule 404(b) is reviewed under an abuse of

discretion standard.13

       On the first Beechum prong, because Smith pleaded not guilty

to the charge of possession with intent to distribute, Smith placed

both his knowledge of the PCP found in the apartment and his intent

to distribute at issue.14         We have repeatedly held that previous

drug sale convictions are proper evidence on the issue of knowledge

and intent to sell.15


       12
            Id. at 911.
       13
            United States v. Carrillo, 981 F.2d 772, 774 (5th Cir.
1993).
       14
            See United States v. Pompa, 434 F.3d 800, 805 (5th Cir.
2005).
       15
      See, e.g., United States v. Arnold, 467 F.3d 880, 885 (5th
Cir. 2006) (prior drug conviction for possession of crack was
relevant to establishing defendant’s intent and knowledge
regarding crack found at his house); United States v. Taylor, 210
F.3d 311, 318 (5th Cir. 2000) (evidence of prior conviction for
possession of cocaine base with intent to deliver is relevant to
prove intent to distribute cocaine base); see also Beechum, 582
F.2d at 913 (“Once it is determined that the extrinsic offense
requires the same intent as the charged offense and that the jury
could find that the defendant committed the extrinsic offense,
the evidence satisfies the first step under rule 404(b). The
extrinsic offense is relevant . . . to an issue other than
propensity because it lessens the likelihood that the defendant
committed the charged offense with innocent intent.”).

                                         -9-
     On the second Beechum prong, Smith argues that his prior

convictions for sales of a different drug (crack cocaine) in a

different city and more than five years before his arrest, while

arguably probative on his intent to sell, are not probative of his

knowledge that PCP was in the apartment.             Since the government

produced sufficient evidence that whoever controlled the drugs

intended to distribute, Smith continues, any probative value of the

evidence on the issue of intent was outweighed by the unfair

prejudice on the issue of Smith’s knowledge–the central issue in

the case.

     We   conclude   that   the   district   court    did   not   abuse   its

discretion in admitting evidence of Smith’s convictions.                   On

numerous occasions, this court has declined to find an abuse of

discretion when the district court admitted evidence of prior drug

activities as more probative than prejudicial.16            We have further

observed that “any prejudicial effect [from the introduction of

similar past acts] may be minimized by a proper jury instruction.”17

Smith’s   prior   drug   trafficking      conviction,   although    with    a

different drug, was for the same conduct at issue here and thus was



     16
      United States v. Harris, 932 F.2d 1529, 1534 (5th Cir.
1991) (citing cases); see also United States v. Saucedo-Munoz,
307 F.3d 344, 350 (5th Cir. 2002) (“This court has consistently
held that evidence of a conviction for a similar crime is more
probative than prejudicial . . . .”) (alternations and citation
omitted).
     17
      Saucedo-Munoz, 307 F.3d at 350 (5th Cir. 2002) (quoting
Taylor, 210 F.3d at 318).

                                   -10-
probative of his knowledge of drug trafficking and his knowledge

that drugs were in the apartment.18         Furthermore, the five year gap

between the extrinsic and charged conduct in this case does not

make it irrelevant.        We have upheld the admission of Rule 404(b)

evidence where the time period between the present and former

offense has been substantially longer.19            Finally, the district

court gave the jury a detailed supplemental limiting instruction on

the use of Rule 404(b) evidence.20          This instruction minimized any

danger of unfair prejudice by instructing the jury to only consider

the   past   drug    sales   after   deciding   that   the   government     had

established the presence of PCP at the apartment and for the

limited    purpose    of   determining   whether   Smith     knew   about   and




      18
      See United States v. Booker, 334 F.3d 406, 412 (5th Cir.
2003) (district court did not abuse its discretion in admitting
evidence that the defendant possessed a large quantity of
marijuana subsequent to his indictment on charges of conspiracy
to distribute crack; evidence contradicted defendant’s claim that
his association with certain individuals was legitimate).
      19
      Arnold, 467 F.3d at 885 (citing cases upholding use of 15
and 18 year old extrinsic acts).
      20
      The district court instructed the jury as follows: “You
must not consider any of [the defendant’s past acts] in deciding
if the defendant committed the acts charged in the indictment.
However, you may consider this evidence for other very limited
purposes. If you find beyond a reasonable doubt . . . that the
defendant did commit the acts charged in the indictment, then you
may consider evidence of similar acts allegedly committed on
other occasions to determine whether the defendant had the state
of mind or the intent necessary to commit the crime charged in
the indictment.”

                                     -11-
intended to sell the PCP found in the apartment.21 Accordingly, the

district court did not abuse its discretion in admitting evidence

of Smith’s prior convictions.

                                      IV.

     Smith next contends that the district court plainly erred by

declaring a mistrial and then refusing to dismiss the charges

against him on double jeopardy grounds.

     Because Smith raises his double jeopardy argument for the

first time on appeal, we review for plain error.22 This court finds

plain error when: (1) there was an error; (2) the error was clear

or obvious; (3) the error affected the defendant’s substantial

rights;     and   (4)   the   error   seriously   affects   the   fairness,

integrity, or public reputation of judicial proceedings.23

     The district court granted a mistrial in Smith’s first trial

based on concerns over both the prosecutor’s comments during

closing as well as the reliability of certain crime scene photos.

Smith argues that the mistrial was the functional equivalent of an

acquittal and therefore bars retrial. The government contends that


     21
      See United States v. Gonzalez, 76 F.3d 1339, 1347 (5th
Cir. 1996) (finding no error where similar instruction was
offered by district court); see also Taylor, 210 F.3d at 318
(evidence of prior possession with intent to distribute cocaine
base more probative than prejudicial to prosecution for intent to
distribute cocaine base where district court gave proper limiting
instruction).
     22
          United States v. Villegas, 404 F.3d 355, 358 (5th Cir.
2005).
     23
          United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005).

                                      -12-
Smith     waived   any   double   jeopardy   claim   when   he    requested   a

mistrial.

     A motion by the defendant for a mistrial ordinarily removes

any barrier to re-prosecution even if the defendant’s motion is

necessitated by prosecutorial or judicial error.24               In this case,

the record makes clear that it was the defense which moved for a

mistrial after rejecting a curative instruction to address the

prosecution’s error.25

     Because the mistrial resulted from defense counsel’s request,

the district court committed no error, plain or otherwise, by

granting Smith’s request for a mistrial and then retrying him.26

                                      V.

     Smith next contends that the district court erred by treating

his prior drug convictions as separate convictions for purposes of



     24
          United States v. Bauman, 887 F.2d 546, 549 (5th Cir.
1989).
     25
      Beginning at the conclusion of the prosecution’s closing,
the court expressed its reservations about the prosecutor’s
mischaracterization of evidence and asked defense counsel if he
was moving for a mistrial. Defense counsel responded, “Your
Honor, my client has asked me–has instructed me to ask for a
mistrial . . . .” Later, after the lengthy discussion regarding
a possible curative instruction, the court asked defense counsel
to “get with your client to decide whether you want to go to the
jury and find out what the jury has to say . . . or not.” The
court subsequently confirmed with defense counsel: “Do you have
an objection to me granting this mistrial based on your earlier
motion?” Counsel responded: “No, Your Honor.”
     26
      Bauman, 887 F.2d at 549 (“Double jeopardy protection may
be waived by consenting to a mistrial before a verdict is
rendered.”).

                                     -13-
applying the sentencing enhancement under 21 U.S.C. § 841(b)(1)(A).

      The issue of whether related convictions should be aggregated

for   purposes       of    the   sentencing      enhancements    of   21    U.S.C.   §

841(b)(1)(A) is a legal issue and thus is reviewed de novo.27

      Section 841(b)(1)(A) provides that “[i]f any person commits a

violation . . . 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 . . . .”

      In United States v. Barr,28 this court considered a defendant’s

challenge to a life sentence pursuant to this provision under

substantially similar circumstances.                In that case, we found that

a defendant’s sale of crack cocaine on two successive days to the

same buyer constituted two separate offenses.29                 We explained that

separate convictions constitute one offense when the violations

occur simultaneously, but that the two drug sales on two different

days did not qualify as a single offense.30

      Smith claims that, unlike Barr, his sales of crack cocaine on

consecutive days to the same undercover agent constitute a single

criminal         episode   because   he   and    the   agent    exchanged    contact

information on the day of the first sale.               However, nothing in Barr


      27
           See United States v. Adam, 296 F.3d 327, 330 (5th Cir.
2002).
      28
           130 F.3d 711 (5th Cir. 1997).
      29
           Id. at 712.
      30
           Id.

                                          -14-
indicates that the exchange of contact information between parties

to a drug deal makes the sale simultaneous with a later drug deal.

We have consistently treated two separate transactions, even when

committed in quick succession, as different criminal episodes.31

Accordingly, the district court did not err in treating the two

convictions as separate predicate drug convictions for purposes of

imposing a mandatory life sentence under section 841(b)(1)(A).

                               VI.

     Finally, Smith claims that his life sentence under 21 U.S.C.

§ 841(b)(1)(A) is unconstitutional because his prior convictions

were neither alleged in the indictment nor proven to a jury beyond

a reasonable doubt.

     Smith acknowledges that his constitutional challenge to his

sentence is currently foreclosed by Supreme Court precedent.32



                              VII.

     For the foregoing reasons, we AFFIRM Smith’s conviction and

sentence.

AFFIRMED.


     31
      See, e.g., United States v. Washington, 898 F.2d 439 (5th
Cir. 1990) (two robberies of the same convenience store a few
hours apart were two separate convictions for purposes of
enhancing defendant’s sentence).
     32
      See Almendarez-Torres v. United States, 523 U.S. 224
(1998) (no requirement that prior criminal history be alleged in
the indictment and either admitted by defendant or proven to jury
beyond a reasonable doubt).


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