                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________                  FILED
                                                         U.S. COURT OF APPEALS
                               No. 09-10764                ELEVENTH CIRCUIT
                                                            FEBRUARY 16, 2010
                           Non-Argument Calendar
                                                                JOHN LEY
                         ________________________
                                                                 CLERK

                  D. C. Docket No. 08-00180-CR-T-17-EAJ

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

DENNIS WILLIAMS,

                                                           Defendant-Appellant.


                         ________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
                      _________________________

                              (February 16, 2010)

Before DUBINA, Chief Judge, CARNES and ANDERSON, Circuit Judges.

PER CURIAM:

     Appellant Dennis Williams appeals his convictions for conspiracy to possess
with intent to distribute five kilograms or more of cocaine, in violation of 21

U.S.C. §§ 846 and 841(b)(1)(A)(ii), possession of a firearm in furtherance of a

drug-trafficking crime, in violation of 18 U.S.C. § 924(c), and possession of a

firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g) and 924(e). On

appeal, Williams argues that the district court abused its discretion in allowing

evidence of his prior convictions (sale of counterfeit cocaine, armed robbery,

possession of cocaine and aggravated assault with a weapon) to be admitted at trial

pursuant to Federal Rule of Evidence 404(b).

      “[W]e review the evidentiary rulings of the trial court only for a clear abuse

of discretion.” United States v. Brannan, 562 F.3d 1300, 1306 (11th Cir. 2009).

Under “the deferential abuse-of-discretion standard we must affirm unless we find

that the district court has made a clear error of judgment, or has applied the wrong

legal standard.” Id. (internal quotation marks omitted).

      Rule 404(b) of the Federal Rules of Evidence provides,

      Evidence 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 purposes, such as
      proof of motive, opportunity, intent, preparation, plan, knowledge,
      identity, or absence of mistake or accident . . . .”

Fed.R.Evid. 404(b). We have stated that “Rule 404(b) is a rule of inclusion, and

that accordingly 404(b) evidence, like other relevant evidence, should not lightly



                                           2
be excluded when it is central to the prosecution’s case.” United States v.

Jernigan, 341 F.3d 1273, 1280 (11th Cir. 2003) (internal quotation marks omitted).

      In reviewing 404(b) decisions, we apply a three-part test for
      admissibility of such evidence: (1) the evidence must be relevant to an
      issue other than the defendant’s character; (2) there must be sufficient
      proof so that the factfinder could find that the defendant committed
      the extrinsic act; and (3) the evidence must possess probative value
      that is not substantially outweighed by undue prejudice.

United States v. Perez, 443 F.3d 772, 779 (11th Cir. 2006). Here, Williams does

not challenge the second prong of the three-part test.

      We have stated that, “in every conspiracy case, a not guilty plea renders the

defendant’s intent a material issue” and that “[e]vidence of such extrinsic evidence

as may be probative of a defendant’s state of mind is admissible unless the

defendant affirmatively takes[] the issue of intent out of the case.” United States v.

Matthews, 431 F.3d 1296, 1311 (11th Cir. 2005) (internal quotation marks,

alterations, and ellipsis omitted); see also United States v. Butler, 102 F.3d 1191,

1195 (11th Cir. 1997) (“Intent is always at issue when a defendant pleads not

guilty to a conspiracy charge.”); United States v. Calderon, 127 F.3d 1314,

1330-31 (11th Cir. 1997) (determining that intent was at issue when the defendant

argued that he was “merely present at the scene of the drug activity”).

      Under the third prong of the balancing test, “the probative value of the

evidence must not be substantially outweighed by unfair prejudice.” Jernigan, 341

                                           3
F.3d at 1282 (internal quotation marks omitted). “This determination lies within

the sound discretion of the district judge and calls for a common sense assessment

of all the circumstances surrounding the extrinsic offense, including prosecutorial

need, overall similarity between the extrinsic act and the charged offense, as well

as temporal remoteness.” Id. (internal quotation marks and alteration omitted).

We have noted that “temporal remoteness is an important factor” and stated that a

defendant “bears a heavy burden in demonstrating an abuse of the court’s broad

discretion in determining if an extrinsic offense is too remote to be probative.”

Matthews, 431 F.3d at 1311 (internal quotation marks omitted).

      Because Williams’s prior convictions were relevant to issues other than his

character and their probative value was not substantially outweighed by unfair

prejudice, the district court did not abuse its discretion in admitting the prior

convictions into evidence.

      Based on our review of the record and consideration of the parties’ briefs,

we affirm Williams’s convictions.

      AFFIRMED.




                                            4
