                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 March 31, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                             No. 04-51068
                           Summary Calendar



UNITED STATES OF AMERICA

                      Plaintiff - Appellee

     v.

WILLIE ANDREW SMITH

                      Defendant - Appellant

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                    USDC No. 2:04-CR-48-2-AML
                       --------------------

Before KING, WIENER and DeMOSS, Circuit Judges.

PER CURIAM:*

     Willie Andrew Smith appeals his conviction for illegal

transportation of aliens and conspiracy to transport aliens.

Smith contends that the trial court abused its discretion by

admitting evidence related to Smith’s October 14, 2003, arrest

for illegally transporting aliens (the October arrest).       Smith

asserts that his conduct in relation to the October arrest was

not admissible under Rule 404 because it was neither criminal nor

a bad act, because Smith did not present any defense, and because


     *
       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this opinion should not be published and is not precedent except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.
                             No. 04-51068
                                  -2-

he did not assert mistake or accident.      In the alternative, he

argues that evidence related to the October arrest was

irrelevant.   In the further alternative, Smith argues that

evidence related to the October arrest was unduly prejudicial, in

part because the Government’s other evidence was sufficient to

establish Smith’s guilt in the instant offense.      Smith also

asserts that the district court violated Fed. R. Evid. 403 by

failing to conduct a balancing test, by not conducting the

balancing test on the record, and by not using the correct

standard in its Rule 403 ruling.

     The district court held hearings on Smith’s Rule 403 and

Rule 404 challenges and explicitly addressed Smith’s challenges

regarding the criminality of his conduct related to the October

arrest, the relevancy of the October arrest, and the balancing of

the probative value of evidence related to the October arrest

against the potential for undue prejudice from such testimony.

It correctly found that evidence related to the October arrest

was relevant and was admissible under Fed. R. Evid. 404(b) to

show Smith’s knowledge and intent, which were placed at issue by

Smith’s “not guilty” plea.    See United States v. Walker, 410 F.3d

754, 759 (5th Cir. 2005); United States v. Beechum, 582 F.2d 898,

911 (5th Cir. 1978) (en banc).    This evidence possessed

considerable probative value that was not substantially

outweighed by undue prejudice under Fed. R. Evid. 403.      See
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                               -3-

United States v. Williams, 132 F.3d 1055, 1058-60 (5th Cir.

1998); Beechum, 582 F.2d at 911.

     For the foregoing reasons, Smith’s conviction is AFFIRMED.
