     Case: 13-41285      Document: 00513076437         Page: 1    Date Filed: 06/12/2015




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

                                    No. 13-41285                                   FILED
                                  Summary Calendar                             June 12, 2015
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

FELIPE TELLES-SANCHEZ, also known as Mario Oviedo-Cerda, also known
as Felipe Oviedo-Cerda,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:11-CR-1654


Before KING, JOLLY, and HAYNES, Circuit Judges.
PER CURIAM: *
       Felipe Telles-Sanchez appeals his conviction for being an alien found
knowingly and unlawfully present in the United States after deportation. He
argues that the district court abused its discretion in admitting evidence of his
prior illegal reentry conviction. He asserts that the probative value of the
conviction was substantially outweighed by the prejudicial effect and that it



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 13-41285

was not relevant for any purpose other than to show his propensity to commit
other crimes. He contends that it was therefore inadmissible under Federal
Rule of Evidence 404(b). Further, Telles-Sanchez argues that the admission of
evidence was not harmless as it was inherently prejudicial, and the district
court’s limiting instructions did not alleviate the prejudice because the
instructions did not narrow the focus to a specific purpose permissible under
Rule 404(b).
      Telles-Sanchez’s defense was that during the relevant time period from
2008 to 2012, he had a valid Texas delayed birth certificate and, therefore, his
2011 reentry into the United States was not illegal. The entry of a not guilty
plea raises the issue of intent sufficiently to justify the admissibility of
extrinsic offense evidence and satisfied the first part of the test under United
States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en banc). See, e.g., United
States v. Olguin, 643 F.3d 384, 389-90 (5th Cir. 2011). The district court
allowed the introduction of evidence of his prior illegal reentry conviction for
the limited purpose of showing state of mind or intent, motive or opportunity,
action according to plan, and lack of accident or mistake. See United States v.
Taylor, 210 F.3d 311, 318 (5th Cir. 2000). These are proper uses of extrinsic
act evidence. See Rule 404(b). Telles-Sanchez’s prior illegal reentry conviction
for an identical offense as the instant offense required the same intent. See 8
U.S.C. § 1326(a), (b); United States v. Jackson, 339 F3d 349, 354 (5th Cir.
2003). Although the prior offense occurred approximately eight years before
the instant offense, this court has held that the amount of time that has passed
since the previous conviction is not determinative, and has upheld the
admission of evidence of extrinsic offenses that were 15 to 18 years old. See
United States v. Arnold, 467 F.3d 880, 885 (5th Cir. 2006) (citing cases and
affirming admission of conviction that was nine years old).



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                                No. 13-41285

      Moreover, the evidence of Telles-Sanchez’s prior conviction was not
unfairly prejudicial because that conviction was neither heinous in nature nor
likely to incite an irrational verdict. See United States v. Cockrell, 587 F.3d
674, 679 (5th Cir. 2009). The risk of unfair prejudice was further minimized
by the court’s jury instruction that evidence could be considered only for the
“very limited” purpose of determining whether Telles-Sanchez had the
requisite intent or state of mind to commit the charged offense. See United
States v. McCall, 553 F.3d 821, 829 (5th Cir. 2008); see also Zafiro v. United
States, 506 U.S. 534, 540 (1993) (stating that a jury is presumed to follow its
instructions).   For these reasons, Telles-Sanchez has not shown that the
district court abused its discretion in admitting evidence of his prior illegal
reentry conviction. See Olguin, 643 F.3d at 389.
      AFFIRMED.




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