     Case: 13-11011      Document: 00512658758         Page: 1    Date Filed: 06/10/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                    No. 13-11011                            June 10, 2014
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JERMAINE DUANE IRVIN,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:13-CR-35-4


Before KING, DAVIS, and ELROD, Circuit Judges.
PER CURIAM: *
       Following a jury trial, Jermaine Duane Irvin was convicted of one count
of conspiring to distribute a controlled substance and was sentenced to serve
420 months in prison and an eight-year term of supervised release. Irvin’s pro
se motion to remove counsel and appoint new counsel is DENIED because it
was filed after counsel’s brief and is thus untimely.              Cf. United States v.
Wagner, 158 F.3d 901, 902-03 (5th Cir.1998).


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 13-11011     Document: 00512658758      Page: 2   Date Filed: 06/10/2014


                                 No. 13-11011

      In the sole issue raised in this appeal, Irvin contends that the district
court erred by admitting evidence concerning his prior state conviction for
delivery of cocaine. We review the admission of evidence in a criminal case
pursuant to Federal Rule of Evidence 404(b) under a heightened abuse of
discretion standard. United States v. Olguin, 643 F.3d 384, 389 (5th Cir. 2011).
We have set forth a two-part test to determine whether evidence is admissible
under Rule 404(b). United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978)
(en banc). “First, it must be determined that the extrinsic evidence is relevant
to an issue other than the defendant’s character.” Id. “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. Application
of this analysis shows no abuse of discretion in connection with the challenged
ruling. See Olguin, 643 F.3d at 389.
      The disputed evidence was admitted because the district court concluded
that it was probative of intent, knowledge, and lack of mistake. These are
proper uses of extrinsic act evidence. See Rule 404(b). In addition, “[t]he mere
entry of a not guilty plea in a conspiracy case raises the issue of intent
sufficiently to justify the admissibility of extrinsic offense evidence” and
satisfies the first part of the Beechum test. United States v. Cockrell, 587 F.3d
674, 679 (5th Cir. 2009); Olguin, 643 F.3d at 390.
      Insofar as Irvin argues that the extrinsic act evidence should not have
been admitted because it did not require the same intent as the instant offense,
he is mistaken.      The two incidents were sufficiently similar to warrant
admission under Rule 404(b). See United States v. Jackson, 339 F.3d 349, 354-
55 (5th Cir. 2003); United States v. McMahon, 592 F.2d 871, 873 (5th Cir.1979).
The first part of the Beechum test is thus met.




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    Case: 13-11011     Document: 00512658758     Page: 3   Date Filed: 06/10/2014


                                  No. 13-11011

      This is not, however, the end of the analysis, and prejudice must still be
considered.   See Beechum, 582 F.2d at 911.       When making a decision on
whether the probative value of extrinsic evidence outweighs its potential
prejudice, we consider “(1) the government’s need for the extrinsic evidence, (2)
the similarity between the extrinsic and charged offenses, (3) the amount of
time separating the two offenses, and (4) the court’s limiting instructions.”
United States v. Kinchen, 729 F.3d 466, 473 (5th Cir. 2013).
      Our examination of the record shows that the district court’s decision to
admit the questioned evidence accords with these factors. This evidence was
needed to establish Irvin’s intent, and the two offenses were sufficiently similar
to make the prior offense more probative than prejudicial. See McMahon, 592
F.2d at 874; Kinchen, 729 F.3d at 474. Additionally, the challenged evidence
was not so outrageous as to inflame the jury. See United States v. Yi, 460 F.3d
623, 633 (5th Cir. 2006).      Penultimately, the Rule 404(b) evidence was
sufficiently temporally proximate to the charged offense so as to satisfy this
factor. See United States v. Arnold, 467 F.3d 880, 885 (5th Cir. 2006). Finally,
the district court adequately instructed the jury concerning the use of the
disputed evidence. See Zafiro v. United States, 506 U.S. 534, 540 (1993).
      The judgment of the district court is AFFIRMED.




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