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

                                            FILED
                                                          February 23, 2009
                          No. 07-51475
                        Summary Calendar              Charles R. Fulbruge III
                                                              Clerk

UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee

v.

FERNANDO CARDENAS-LUNA, also known as Fernando Cardenas Luna,

                                     Defendant-Appellant.

                      ______________________

                CONSOLIDATED WITH No. 07-51476


UNITED STATES OF AMERICA

                                     Plaintiff-Appellee

v.

FERNANDO LUNA-CARDENAS

                                     Defendant-Appellant

                      ______________________

            Appeals from the United States District Court
                  for the Western District of Texas
                      USDC No. 2:01-CR-516-1
                      USDC No. 2:06-CR-1072-1
                                 No. 07-51475
                               c/w No. 07-51476

Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
      Fernando Luna-Cardenas (Luna) was convicted by a jury of possession of
marijuana with intent to distribute. Luna gave timely notice of his appeal from
the judgment of conviction. Because of his conviction, Luna’s supervised release
related to a 2002 conviction of possession of marijuana with intent to distribute
was revoked. Luna gave timely notice of his appeal from that order. The two
appeals have been consolidated.
      During the trial, the Government offered certified copies of the judgment,
plea agreement, and factual basis for the plea agreement related to the prior
drug conviction as proof of Luna’s guilty knowledge. Luna contends that the
district court reversibly erred in admitting the evidence because the evidence
was unduly prejudicial. He contends that the probative value of the evidence
was lessened and that the evidence was unnecessarily cumulative because the
jury learned of the prior conviction through other evidence. He complains that
the evidence was extremely prejudicial because the two offenses involved nearly
identical facts. He argues that admission of the judgment and commitment
order and the written plea agreement related to the prior offense was unfairly
prejudicial because the judgment revealed that he received a relatively lenient
sentence for the prior conviction and because the documents showed that he was
on supervised release at the time he committed the instant offense. He contends
that the evidence suggested that he was a man of bad character.
      The admission of evidence under Federal Rule of Evidence 404(b) is
reviewed under a heightened abuse-of-discretion standard. United States v.
Buchanan, 70 F.3d 818, 831 (5th Cir. 1995). Extrinsic evidence is admissible so


      *
       Pursuant to Fifth Circuit Rule 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 Fifth Circuit Rule 47.5.4.

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                                    No. 07-51475
                                  c/w No. 07-51476

long as its probative value is not substantially outweighed by its inherent
prejudice. United States v. Beechum, 582 F.2d 898, 913–15 (5th Cir. 1978) (en
banc).
         Luna’s prior conviction was highly probative because, as Luna concedes,
it was virtually identical to the charged offense. Luna’s intent to commit the
extrinsic offense was not in dispute because of his guilty plea. Moreover, the
extrinsic evidence was not of a “heinous nature” such that it would “incite the
jury to irrational decision by its force on human emotion.” Id. There is no
reason to believe that its admission was “likely to confuse the issues, mislead the
jury, cause undue delay, or waste time.” Id. The evidence was not needlessly
cumulative. See id.; see also Fed. R. Evid. 403. Luna does not dispute that the
prejudicial effect of admitting the extrinsic evidence was mitigated by the
district court’s limiting instructions; nor does he contend that the instructions
were otherwise inadequate. See United States v. Duffaut, 314 F.3d 203, 209–10
(5th Cir. 2002). Luna has not shown that the district court abused its discretion
in admitting the evidence. See Beechum, 582 F.2d at 914, 917 & n.23.
         Luna contends that the marijuana at issue in this case was hidden and
that, therefore, the district court erred in refusing to instruct the jury that the
Government could not rely solely on his control of the minivan to prove guilty
knowledge. See United States v. Pennington, 20 F.3d 593, 598 (5th Cir. 1994).
In this case, the marijuana was concealed in duffle bags. Although packages of
marijuana could be seen in one bag that had a broken zipper, that bag was
covered by another bag and arguably was not in plain view or readily accessible.
See United States v. Villarreal, 324 F.3d 319, 324 (5th Cir. 2003).
         Any error in failing to give the instruction was harmless because there was
ample evidence of Luna’s guilty knowledge, that is, the prior similar conviction
of possession of marijuana with intent to distribute, the large quantity of
marijuana found in the vehicle Luna was driving, and Luna’s incriminating


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                                c/w No. 07-51476

statements to investigating officers. See United States v. Hart, 295 F.3d 451, 454
(5th Cir. 2002) (harmless-error standard). The failure to give the instruction did
not impair Luna’s ability to mount his defense of lack of knowledge. See United
States v. Simkanin, 420 F.3d 397, 410 (5th Cir. 2005). The knowledge element
was “substantially covered” in the court’s charge because the jury was instructed
that to convict, it had to find that Luna knowingly possessed the marijuana with
intent to distribute. See id. The jury was not instructed specifically that it could
infer Luna’s guilty knowledge solely from the fact that he had control over the
vehicle. See id. Thus, the failure to give the proposed instruction did not have
a substantial and injurious effect or influence in determining the jury’s verdict.
See Hart, 295 F.3d at 454.
      Luna contends that, in the event that his conviction is vacated, the court
should also vacate the district court’s order revoking his supervised release.
Because we have determined that the instant conviction must be affirmed, it
follows that the district court’s order revoking Luna’s supervised release must
also be affirmed.
      AFFIRMED.




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