                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                     F I L E D
          IN THE UNITED STATES COURT OF APPEALS 27, 2007
                                               July
                   FOR THE FIFTH CIRCUIT
                                                                 Charles R. Fulbruge III
                                                                         Clerk


                               No. 06-61006
                             Summary Calendar


UNITED STATES OF AMERICA

                                          Plaintiff-Appellee

v.

BRYAN MICHAEL BEETS

                                          Defendant-Appellant


                Appeal from the United States District Court
                  for the Southern District of Mississippi
                          USDC No. 5:05-CR-13-1


Before WIENER, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
      Defendant-Appellant Bryan Michael Beets was convicted by a jury of
making a fraudulent claim against the United States, in violation of 18 U.S.C.
§ 287. The district court sentenced Beets to 24 months of imprisonment and a
three-year term of supervised release. The district court also ordered Beets to
pay $100 as a special assessment and $3,854 in restitution.




      *
       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should not be published and is not precedent except under the limited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. 06-61006

      Beets insists that the district court abused its discretion when it admitted
evidence of his subsequent application to the American Red Cross (ARC) for
benefits. Beets received reasonable notice of the government’s intention to
introduce the evidence. See United States v. Tomblin, 46 F.3d 1369, 1388 n.50
(5th Cir. 1995). The extrinsic evidence was relevant to Beets’s knowledge that
he used a fraudulent address to receive disaster benefits from the Federal
Emergency Management Agency (FEMA). That evidence also demonstrated an
absence of mistake. See United States v. Duffaut, 314 F.3d 203, 209 (5th Cir.
2002). Beets’s subsequent conduct was strikingly similar to his offense conduct
and occurred only one month after his application to FEMA. See United States
v. Chavez, 119 F.3d 342, 346-47 (5th Cir. 1997). Moreover, any prejudice
resulting from the admission of the evidence was mitigated by the district court’s
limiting instruction. United States v. Broussard, 80 F.3d 1025, 1040 (5th Cir.
1996). Lastly, even if the extrinsic evidence was not relevant to an issue other
than Beets’s character, the other evidence against Beets was amply sufficient to
support his conviction. The district court’s decision to admit the evidence was
not an abuse of discretion. See United States v. Beechum, 582 F.2d 898, 911
(1978) (en banc).
      Beets also alleges that the government’s failure to have an ARC employee
testify about the ARC application violated Crawford v. Washington, 541 U.S. 36
(2004) and deprived Beets of his rights under the Confrontation Clause. He
asserts that the witness offered by the government was unable to testify whether
Beets’s ARC application represented a fraud, so Beets was unable to establish
whether his application complied with ARC eligibility rules under the
circumstances. As the government proffered no testimonial hearsay statements
by the non-testifying witness, however, Beets was not denied his confrontation
rights. Furthermore, the admission of Beets’s ARC application was permissible,
because it was a non-testimonial document admitted under the business records



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exception to the hearsay rule. See FED. R. EVID. 803(6); United States v. Rueda-
Rivera, 396 F.3d 678, 680 (5th Cir. 2005).
      Beets further asserts that the district court erred by denying his motions
for mistrial, which, he argues, were justified in light of improper witness
testimony and prejudicial remarks made by the prosecution during closing
arguments. There is not a significant possibility, however, that the witness
testimony or the prosecutor’s comments had a substantial effect on the jury's
reaching its verdict, given the other, overwhelming evidence of Beets’s guilt.
The district court did not abuse its discretion in denying Beets's motions for
mistrial. See United States v. Sotelo, 97 F.3d 782, 798 (5th Cir. 1996); United
States v. Iredia, 866 F.2d 114, 117 (5th Cir. 1989).
      Finally, Beets contends that his sentence, for which the district court
deviated above the advisory guideline range of imprisonment, is unreasonable.
The district court considered the applicable guideline range and decided to
exceed that range based on the court’s consideration of individualized and proper
18 U.S.C. § 3553(a) factors, including the nature and circumstances of the
instant offense, Beets’s history and characteristics, the need to promote respect
for the law, and the need to protect the public from the commission of further
crimes by this defendant. See United States v. Smith, 440 F.3d 704, 707-09 (5th
Cir. 2006). As the district court committed no legal error in the sentencing
procedure, we give the sentence imposed great deference. Id. at 710. The
sentencing court’s findings in support of the upward variance sufficiently
demonstrate that the sentence is reasonable under § 3553. Id.
      Beets’s conviction and sentence are,
AFFIRMED.




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