                                                                              United States Court of Appeals
                                                                                       Fifth Circuit
                                                                                    F I L E D
                    IN THE UNITED STATES COURT OF APPEALS
                                                                                    February 9, 2007
                                 FOR THE FIFTH CIRCUIT                          Charles R. Fulbruge III
                                                                                        Clerk


                                         No. 04-11414



       UNITED STATES OF AMERICA,

                                                    Plaintiff-Appellee,

                                     versus

       MARTHA FLORES,

                                                    Defendant-Appellant.



                   On Appeal from the United States District Court
                         for the Northern District of Texas
                              D.C. No. 3:03-CR-188-N
           _______________________________________________________

Before REAVLEY, JOLLY, and BENAVIDES, Circuit Judges.

PER CURIAM:*

       Appellant Martha Flores appeals her conviction on one count of conspiring to

distribute cocaine. Flores challenges (1) the district court’s decision to admit

evidence of her mid-trial arrest; and (2) the reasonableness of her sentence. We



       *
         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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
affirm for the following reasons:

      1.     At trial, the district court admitted evidence of Flores’s mid-trial arrest

for selling cocaine to an undercover officer. Flores argues that the prejudicial effect

of this evidence outweighed any probative value, and thus the district court erred in

admitting the evidence. See FED. R. EVID. 403 & 404(b).

      Under our precedent, evidence of an extrinsic act is admissible if, first, the

evidence is relevant to an issue other than the defendant’s character, and second, if

the evidence’s prejudicial effect does not substantially outweigh its probative value.

United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en banc). Although

acts admissible under Fed. R. Evid. 404(b) generally occur prior to the charged

crime, evidence of subsequent acts may also be admitted. United States v. Osum,

943 F.2d 1394, 1404 n.7 (5th Cir. 1991). We review for abuse of discretion a

district court’s decision to introduce evidence of extrinsic acts. United States v.

Gonzalez, 76 F.3d 1339, 1347 (5th Cir. 1996).

      First, Flores’s act in selling cocaine to the undercover officer was relevant to

her intent to commit the charged crime. In a drug-trafficking case, a not-guilty plea

raises the question of intent and justifies the admission of evidence under Fed. R.

Evid. 404(b). United States v. Pompa, 434 F.3d 800, 805 (5th Cir. 2005); see also

United States v. Roberts, 619 F.2d 379, 382-83 (5th Cir. 1980) (not-guilty plea

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raises the issue of intent in a conspiracy case). “Subsequent acts evidence is

particularly relevant when intent is at issue.” United States v. Mares, 441 F.3d

1152, 1157 (10th Cir. 2006). Here, Flores pleaded not guilty to a conspiracy

charge, and her extrinsic act was particularly probative. Her drug sale was almost

indistinguishable from the charged crime, occurred only a year after the end of the

conspiracy alleged in the indictment, and was directly relevant as to whether she had

intentionally participated in the conspiracy. See United States v. Sykes, 977 F.2d

1242, 1246 (8th Cir. 1992) (evidence of subsequent drug possession in conspiracy

case admissible to show knowledge and intent when the subsequent act was

“virtually identical” to the charged crime and took place eight months later).

      Second, the prejudicial effect of the evidence did not substantially outweigh

its probative value. See United States v. Beechum, 582 F.2d 898, 911 (5th Cir.

1978) (en banc). The district court carefully gave the jury two limiting instructions

in order to minimize the potential prejudicial effect of the evidence. These

instructions (the second of which closely tracked the Fifth Circuit’s pattern jury

charge) made it clear that the jury was not to use Flores’s arrest as proof that “the

defendant committed the acts charged in the indictment,” but only for “other, very

limited purposes” such as mistake or intent. Although Flores contends that these

instructions were confusing, they were sufficiently clear. Therefore, the district

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court acted within its discretion in admitting proof of Flores’s extrinsic act.

      2.     We have held that “[t]he sentencing judge is entitled to find by a

preponderance of the evidence all the facts relevant to the determination of a

Guideline sentencing range. . . .” United States v. Mares, 402 F.3d 511, 519 (5th

Cir. 2005). As the district court properly determined Flores’s Guidelines range and

sentenced her within that range, we find Flores’s sentence reasonable. See id.

AFFIRMED.




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