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

                                                                   FILED
                                                                   July 17, 2008
                                 No. 07-10770
                               Summary Calendar               Charles R. Fulbruge III
                                                                      Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

GERALD WALKER, also known as Li’l Gooch

                                            Defendant-Appellant


                 Appeal from the United States District Court
                      for the Northern District of Texas
                           USDC No. 4:06-CR-79-2


Before WIENER, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
      After a jury convicted Gerald Walker of distributing approximately 2.71
grams of cocaine base to an undercover police officer, the district court sentenced
Walker to a 360-month term of imprisonment.           Walker has appealed his
conviction and sentence.      Walker argues that the admission of evidence
concerning his prior drug-trafficking activities violated FED. R. EVID. 404(b)
because the evidence identifying Walker as the perpetrator was weak. Walker
contends that the district court clearly erred by enhancing his sentence under

      *
      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should not be published and is not precedent except under the limited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. 07-10770

U.S.S.G. § 2D1.1(b)(1) because there is no evidence that Walker possessed a
firearm during the offense. Finally, Walker argues that his sentence violates
principles of due process because it is based on a much larger quantity of cocaine
base than was charged in the indictment. He concedes that this issue is
foreclosed by our precedent, but raises the issue to preserve it for review by the
Supreme Court.
      Rule 404(b) precludes the admission of “[e]vidence of other crimes, wrongs,
or acts . . . to prove the character of a person in order to show action in
conformity therewith. It may, however, be admissible for other purposes, such
as proof of motive, opportunity, intent, preparation, plan, knowledge, identity,
or absence of mistake or accident . . . .” FED. R. EVID. 404(b). We review the
admission of evidence under Rule 404(b) under a heightened abuse-of-discretion
standard. United States v. Buchanan, 70 F.3d 818, 831 (5th Cir. 1995).
      Because Walker’s plea of not guilty placed his intent at issue, the trial
court did not abuse its discretion by admitting evidence that Walker regularly
engaged in similar drug sales in the same neighborhood as the offense charged
in the indictment. See United States v. Pompa, 434 F.3d 800, 805 (5th Cir.
2005); United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en banc).
The challenged evidence tended to disprove Walker’s contention that his
prosecution was the result of a case of mistaken identity. See United States v.
Chavez, 119 F.3d 342, 346-47 (5th Cir. 1997). Additionally, the trial court
instructed the jury not to consider evidence of Walker’s extrinsic acts for
purposes of determining his guilt. United States v. Thomas, 348 F.3d 78, 86 (5th
Cir. 2003).
      A defendant’s sentence may be enhanced based on his relevant conduct,
which includes “all acts or omissions . . . that were part of . . . [a] common
scheme or plan as the offense of conviction.” U.S.S.G. § 1B1.3(a)(2); see U.S.S.G.
§ 1B1.3(a)(1)(A).   As the evidence that Walker presented at sentencing
established that he frequently possessed a firearm in connection with his drug-

                                        2
                                  No. 07-10770

trafficking activities, we find no clear error in the enhancement of his sentence
based on his possession of a firearm. See United States v. Castillo, 77 F.3d 1480,
1498 (5th Cir. 1996).
      Walker properly concedes that his due process challenge to his sentence
is foreclosed by United States v. Keith, 230 F.3d 784, 786-87 (5th Cir. 2000). We
note that he has raised the issue to preserve it for review by the Supreme Court.
      At our request, the parties filed supplemental briefs addressing the effect
of recent amendments to the Sentencing Guidelines lowering the base offense
levels applicable to crack cocaine offenses. At sentencing, Walker did not
request a downward departure based on the Sentencing Guidelines’s disparate
treatment of offenses involving crack and powder cocaine or request that the
sentencing court consider the then-pending amendment to the Guidelines
addressing this disparity.    We conclude that no plain error occurred at
sentencing. Our review does not preclude future consideration of this issue in
a motion pursuant to 18 U.S.C. § 3582. United States v. Fields, 72 F.3d 1200,
1215 (5th Cir. 1996); United States v. Segler, 37 F.3d 1131, 1134 (5th Cir. 1994).
      AFFIRMED.




                                        3
