                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 14-4083
                                      ____________

                            UNITED STATES OF AMERICA

                                             v.

                                  RAFAEL CABRERA,
                                        Appellant
                                    ____________

                       On Appeal from United States District Court
                         for the Western District of Pennsylvania
                            (W.D. Pa. No. 2-13-cr-00048-001)
                        District Judge: Honorable Mark R. Hornak
                                      ____________

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                    June 21, 2016

           Before: FISHER, GREENAWAY, JR., and ROTH, Circuit Judges.

                                 (Filed: August 17, 2016)

                                      ____________

                                        OPINION
                                      ____________




FISHER, Circuit Judge.


 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Rafael Cabrera appeals his conviction of conspiracy to possess with intent to

distribute 100 grams or more of heroin. Cabrera also appeals his sentence of 288 months’

imprisonment based on his conviction. We will affirm his conviction but vacate his

sentence and remand to the district court for resentencing.

                                             I.

       We write principally for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts that are necessary

to our analysis.

       Cabrera was arrested on February 11, 2013, in Carlisle, Pennsylvania, with over

700 bricks of heroin. Those 700 bricks were intended for distribution to Avery Johnson.

At the time the February 11 exchange was to take place, Johnson was working as a

confidential informant for the FBI. Johnson became an informant after local law

enforcement arrested him for heroin possession on January 10, 2013, in Pittsburgh,

Pennsylvania. After his arrest, Johnson revealed he had purchased heroin from a man

named “Rubio” five times between August 2012 and January 2013. The transactions

usually occurred in Carlisle, and the quantities purchased increased with each transaction,

with the final transaction involving 654 bricks of heroin.

       After Johnson’s arrest, FBI Special Agent Leonard Piccini, Jr. posed as Johnson

and arranged a transaction to purchase heroin from Rubio. The FBI’s investigation

developed evidence that indicated Cabrera was Rubio. Cabrera, under the guise of Rubio,

had Agent Piccini deposit $3,000 into a bank account listed under Cabrera’s name. Cell

phone tracking data (“ping data”) indicated Rubio’s concentrated presence at Cabrera’s

                                             2
home in Passaic, New Jersey. Further, stored location data in a global positioning system

(“GPS”) found in Cabrera’s vehicle reported several locations where Johnson and Rubio

met for transactions—in both Pittsburgh and Carlisle. Bank records in Cabrera’s name

showed that Johnson deposited thousands of dollars in Cabrera’s account after the drug

transactions.

       Cabrera was indicted on federal drug charges in two districts. This appeal

concerns Cabrera’s March 2014 grand jury indictment in the Western District of

Pennsylvania for conspiracy to possess with intent to distribute 100 grams or more of

heroin from August 2012 to January 10, 2013, in violation of 21 U.S.C. § 846 and

contrary to 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(i). A grand jury separately indicted

Cabrera, approximately ten months later, in the Middle District of Pennsylvania for

heroin possession based on his February 11 arrest.

       Because Cabrera was separately charged in the Middle and Western Districts, the

heroin seized in Carlisle during Cabrera’s February 11 arrest (“February 11 heroin”), was

not part of the Western District indictment. That indictment spanned only August 2012 to

January 10, 2013. Cabrera sought to have any reference to the February 11 heroin

excluded from his trial in the Western District because he argued it did not support the

charged conspiracy. Before trial, however, the district court denied that request.

       At trial, Cabrera asserted that he was not “Rubio” and was simply a drug mule. In

order to connect Johnson to Cabrera, the Government displayed photos and bags of the

February 11 heroin. Concerned about these displays, the district court provided the jury

with a limiting instruction before witness testimony and during the jury charge. Further,

                                             3
on Cabrera’s request, the district court limited the display of the February 11 heroin while

the Government’s witnesses were not testifying. The Government referenced the

February 11 heroin during its closing statement. After closing statements, the evidence

was submitted to the jury. Unbeknownst to either party, a sexually explicit thumbnail

photograph that had been stored on Cabrera’s phone, along with other, relevant

photographs, was included in the exhibits reviewed by the jury.

       Cabrera was convicted of conspiracy in the Western District, and his Middle

District indictment was dismissed. During sentencing, Cabrera qualified for a sentence

enhancement under the United States Sentencing Guidelines § 4B1.1 career offender

provision due to his prior drug trafficking and two eluding convictions. The district court

sentenced Cabrera to 288 months’ imprisonment. After sentencing, Cabrera reviewed the

trial records and realized that the sexually explicit thumbnail photograph had been

submitted to the jury. Cabrera timely appealed his conviction and sentence.

                                            II.

       The district court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction

pursuant to 28 U.S.C. § 1291. We will review the district court’s evidentiary findings for

abuse of discretion, including rulings on Rule 404(b) evidence.1 To the extent an

evidentiary ruling is based on an interpretation of the Federal Rules of Evidence, our

review is plenary.2 If a trial error is unpreserved, however, we review for plain error.3

Finally, we exercise plenary review over both the “[d]etermination of what constitutes a

       1
         United States v. Caldwell, 760 F.3d 267, 274 (3d Cir. 2014).
       2
         Id.
       3
         Johnson v. United States, 520 U.S. 461, 46667 (1997).
                                             4
crime of violence under the sentencing guidelines and legal interpretations of the

guidelines.”4

                                            III.

       Cabrera appeals his conviction on two grounds: the Government improperly

presented the February 11 heroin evidence, and the sexually explicit photo was

improperly submitted to the jury. Cabrera also appeals his sentence.

                                            A.

       First, Cabrera argues that the Government’s presentment of the February 11 heroin

violated Rule 404(b). He asserts that, under Rule 403 (one of the 404(b) factors), how the

Government presented the evidence confused the issues, caused unfair prejudice, and

misled the jury.

       Whether evidence of a “crime, wrong, or other act” is admissible under Rule

404(b) depends on four factors. The evidence “must (1) have a proper evidentiary

purpose; (2) be relevant; (3) satisfy Rule 403; and (4) be accompanied by a limiting

instruction (where requested) about the purpose for which the jury may consider it.” 5 The

first factor requires the proponent to identify a proper purpose at issue that is

consequential to the outcome.6 Second, the proponent must “proffer a logical chain of

inference consistent with its theory of the case[,]” and the district court must “articulate

reasons why the evidence also goes to show something other than character.” 7 Third,


       4
         United States v. Jones, 740 F.3d 127, 132 (3d Cir. 2014).
       5
         United States v. Green, 617 F.3d 233, 249 (3d Cir. 2010) (citation omitted).
       6
         Caldwell, 760 F.3d at 276.
       7
         United States v. Sampson, 980 F.2d 883, 888 (3d Cir. 1992).
                                             5
evidence may be excluded when the probative value is substantially outweighed by unfair

prejudice, confusing the issues, or misleading the jury. “[A] large risk of unfair

prejudice” is tolerated for “highly” probative evidence.8 Finally, if the defendant requests,

the district court should provide limiting jury instructions when the evidence is admitted.9

       Here, Cabrera has not challenged the first or second factors. A review of the

record shows that the Government explained that the February 11 heroin evidence

concerned several proper purposes and was relevant to its case. The February 11 heroin

evidence corroborated Johnson’s testimony, supported the Government’s contention that

Cabrera was Rubio, and showed Cabrera’s knowledge and intent to engage in the

conspiracy. Further, the district court determined that the heroin evidence was relevant to

show that Cabrera’s conduct leading to his arrest was a continuation of prior transactions

with Johnson. Therefore, the first and second factors were satisfied.

       Cabrera focuses on the Government’s conduct under the third factor, the risk of

prejudice under Rule 403. Cabrera argues that the Government’s presentation of

thousands of heroin packets to the jury and excessive witness testimony about the

February 11 heroin evidence was unfairly prejudicial. Cabrera argues we should be

guided by United States v. Williams10 and United States v. Zabaneh.11

       A close reading of both cases reveals that they are distinguishable. In Williams, the

Second Circuit vacated the defendant’s conviction because the government told the jury


       8
         United States v. Cross, 308 F.3d 308, 323 (3d Cir. 2002).
       9
         Caldwell, 760 F.3d at 277.
       10
          585 F.3d 703 (2d Cir. 2009).
       11
          837 F.2d 1249 (5th Cir. 1988).
                                             6
the other acts evidence, which only a single witness linked to the defendant, established

the defendant’s true character. The Fifth Circuit, in Zabaneh, vacated a defendant’s

conviction because the district court did not weigh the probative value of the other acts

evidence against its unfair prejudice, and the district court informed the jury why the

evidence was relevant to the charge only after the Government presented its case.

       Here, the Government had the burden of proving Cabrera’s identity because

Cabrera argued he was not Rubio and was not involved in the conspiracy. As a result, the

Government presented the February 11 heroin evidence to identify Cabrera as Rubio and

to corroborate Johnson’s testimony—both central issues. Further, the Government

presented strong evidence against Cabrera, including text communications, bank records,

ping data, and expert testimony. Finally, after Cabrera objected, the district court limited

the jury’s view and the Government’s display of photos of the February 11 heroin.

Therefore, the February 11 heroin evidence’s probative value was not substantially

outweighed by misleading the jury, confusing the issues, or causing Cabrera unfair

prejudice.

       Lastly, Cabrera asserts the jury’s conviction is uncertain because the district

court’s jury instructions about the February 11 heroin evidence were unclear and did not

clarify the Government’s convoluted closing statement. The record reveals that on two

occasions the district court requested Cabrera to submit proposed limiting instructions for

the jury, which allowed him a full opportunity to provide clarity. The district court also

provided the jury limiting instructions before the Government presented the February 11



                                             7
heroin and again during the jury charge. A review of those instructions establishes that

they were thorough and unambiguous.

       Thus, the district court did not err when it admitted the February 11 heroin

because the Rule 404(b) factors were met.

                                              B.

       Next, Cabrera asserts that the sexually explicit photograph submitted to the jury

for deliberation affected his substantial rights. Cabrera did not object to the introduction

of this photograph into evidence.

       Before we can remedy an unpreserved trial error, there must be an error, that is

plain, and that affects the defendant’s substantial rights.12 When the three conditions are

met, we exercise discretion to remedy an error “only if . . . the error seriously affect[s] the

fairness, integrity, or public reputation of judicial proceedings.”13 Under plain error

review, a defendant raising an unpreserved issue cannot have “intentionally relinquished

or abandoned” the error, and the error “must be clear or obvious, rather than subject to

reasonable dispute.”14 The Government acknowledges that submitting the explicit photo

meets the first and second prongs. We agree.

       The parties, however, disagree about whether the photo affected Cabrera’s

substantial rights. Cabrera asserts the photo’s explicit nature caused the jury discomfort

that wrongly led to his conviction. The Government claims the small thumbnail photo


       12
         Johnson, 520 U.S. at 46667.
       13
         Id. at 467 (second alteration in original) (quoting United States v. Olano, 507
U.S. 725, 736 (1993)).
      14
         Puckett v. United States, 556 U.S. 129, 135 (2009) (citations omitted).
                                              8
was a minor part of the evidence and was disregarded by the jury because it was

irrelevant.

       An error affects a defendant’s substantial rights when it “‘affected the outcome of

the district court proceedings.’”15 Although we are sensitive to the potential prejudice

against Cabrera, we do not find the photo affected his substantial rights. The Government

presented considerable evidence to prove the conspiracy, including Cabrera’s bank

records and bank registration, which showed Johnson deposited money into Cabrera’s

account; Cabrera’s GPS, which contained Johnson’s home address and locations where

the transactions occurred; and Rubio’s cell phone ping data, which was centered around

Cabrera’s home.

       Thus, although submitting the explicit photo to the jury was error, the error did not

affect Cabrera’s substantial rights because the outcome of the proceedings was not

affected. His conviction is therefore affirmed.

                                              C.

       Finally, Cabrera asserts he should not have been sentenced as a career offender

under the Guidelines in light of recent Supreme Court precedent. The Government

concedes Cabrera should not have been sentenced as a career offender and remand is

appropriate. We agree.

        After Cabrera was sentenced in 2014, the Supreme Court decided Johnson v.

United States,16 which held that the Armed Career Criminal Act’s (“ACCA”) residual


       15
            Id. (quoting Olano, 507 U.S. at 734).
       16
            135 S. Ct. 2551 (2015).
                                               9
clause was unconstitutionally vague. Although Johnson did not address the

constitutionality of the Guidelines’ career offender provision, the language of the residual

clause in the ACCA and in the Guidelines is identical. Due to this identical language, we

have determined that the “‘authority interpreting one is generally applied to the other.’”17

Because of this determination, we recently applied Johnson’s holding to § 4B1.2(a)(2)’s

residual clause.18   Cabrera’s two convictions for eluding are crimes of violence under §

4B1.2(a)(2)’s residual clause because eluding is not one of the enumerated crimes of

violence under the Guidelines.19 Therefore, if we apply Johnson here, because two of

Cabrera’s predicate offenses no longer qualify under § 4B1.2’s residual clause and

Cabrera’s 288 months’ sentence was imposed in order to “amplify in a substantial way

the sentence . . . as a consequence of [Cabrera] being a career offender,”20 the district

court committed plain error at the sentencing phase.21 Thus, resentencing is appropriate.

                                               IV.

       For the reasons set forth above, we will affirm Cabrera’s conviction but vacate his

sentence     and      remand      to     the         district   court   for    resentencing.


       17
            United States v. Calabretta, -- F.3d --, No. 14-3969 at *4 (3d Cir. 2016)
(quoting United States v. Hopkins, 577 F.3d 507, 511 (3d Cir. 2009)).
        18
           Id. at *7.
        19
           U.S.S.G. § 4B1.2 (“The term ‘crime of violence’ means any offense . . . that –
(1) has as an element the use, attempted use, or threatened use of physical force against
the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a serious potential risk of physical
injury to another.”).
        20
           A. 920–21.
        21
            Molina-Martinez v. United States, 136 S. Ct. 1338, 1346–47 (2016) (if the
record shows that the district court relied on an erroneous Guidelines range in
determining an appropriate sentence, it has committed plain error).
                                               10
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