                                                        NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                         No. 10-1541
                                        _____________

                            UNITED STATES OF AMERICA

                                             v.

                                     DEVERN STANLEY,
                                               Appellant
                                       _____________

                            On Appeal from the District Court
                            of the United States Virgin Islands
                          District Court No. 3-09-cr-00037-001
                     District Judge: The Honorable Curtis V. Gómez

                    Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                  December 16, 2010

          Before: McKEE, Chief Judge, FUENTES and SMITH, Circuit Judges

                                (Filed: December 28, 2010)

                                    _____________________

                                           OPINION
                                    _____________________

SMITH, Circuit Judge.

       A jury convicted Devern Stanley of attempting to import heroin into the United

States and of possessing heroin with intent to distribute. Stanley appeals. Finding no

reversible error, we will affirm.

                                             I.
                                              1
       Stanley served as a crew member of the Sterling, a ferry that travels between the

United States Virgin Islands and the British Virgin Islands. On July 8, 2009, while the

Sterling was docked in Tortola, British Virgin Islands, Stanley accepted a bag from a

passenger named José Peña. He placed the bag in his personal backpack and stored it

near the Sterling’s concessions area. According to the plan, when the Sterling arrived in

St. Thomas, U.S. Virgin Islands, Stanley would take the bag past customs and return it to

Peña. Things did not go as planned, however.

       When the Sterling arrived in St. Thomas, a customs official selected the ferry for a

random inspection. Stanley accompanied the official during the inspection. While on

board, the official noticed Stanley’s backpack, which was unattended. The official

inquired of Stanley as to whom the backpack belonged. Stanley said it was his. The

official opened the backpack and found Peña’s bag. The official opened the bag and

discovered a large number of plastic pellets. When asked about the contents of the

pellets, Stanley said they were filled with lotion—a gift for his sister, he explained. A

field test performed near the scene proved otherwise: the pellets contained not lotion but

heroin—over 700 grams of it. DEA lab testing confirmed the results of the field test.

       Stanley was arrested and was convicted by a jury of attempting to import heroin

under 21 U.S.C. §§ 952, 960(b)(2), and of possessing heroin with intent to distribute

under 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(i). The District Court sentenced Stanley to

97 months in prison.

                                             II.

       Stanley raises three issues on appeal; we will address them in turn.
                                             2
                                             A.

       During the government’s case-in-chief, Special Agent Louis Penn testified that,

after being arrested, Stanley stated that “he’s done this before for other individuals.”

Stanley objected to this evidence under Federal Rule of Evidence 404(b). The District

Court admitted the statement, concluding that it was admissible to prove lack of mistake

or knowledge. Stanley challenges the ruling; we review for an abuse of discretion.

United States v. Lee, 612 F.3d 170, 186 (3d Cir. 2010).

       Rule 404(b) provides that “[e]vidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in order to show action in conformity

therewith.” But Rule 404(b) allows the introduction of other-acts evidence for non-

character purposes, e.g., to show that the defendant acted with the requisite knowledge or

in the absence of mistake. Fed R. Evid. 404(b); United States v. Givan, 320 F.3d 452,

461 (3d Cir. 2003).

       The District Court rightly concluded that the statement was admissible under Rule

404(b) to prove that Stanley knew Peña’s bag contained heroin, an element of the

government’s case. See Givan, 320 F.3d at 460–62; United States v. Lopez, 340 F.3d

169, 173–74 (3d Cir. 2003); United States v. Boone, 279 F.3d 163, 187 (3d Cir. 2002).

Indeed, Stanley’s defense was that he did not know the bag contained heroin, so the

presence or absence of such knowledge was the critical issue at trial.

       Still, the District Court failed to determine whether the statement was admissible

under Rule 403, as required. See United States v. Sampson, 980 F.2d 883, 889 (3d Cir.

1992) (other-acts evidence must survive Rule 403 balancing to be admissible). “Where
                                              3
the district court fails to explicitly articulate the Rule 403 balancing: ‘we [either] decide

the trial court implicitly performed the required balance; or, if we decide the trial court

did not, we undertake to perform the balance ourselves.’” Ansell v. Green Acres

Contracting Co., 347 F.3d 515, 525 (3d Cir. 2003) (quoting Glass v. Phila. Elec. Co., 34

F.3d 188, 192 (3d Cir. 1994)). We opt to do the balancing ourselves.

       On one hand, the statement was probative on the key issue in the case: whether

Stanley knew Peña’s bag contained heroin. On the other hand, although there was some

risk of unfair prejudice, the statement played a minor role in the case; it was brought up

in the jury’s presence just three times—once by the government and twice by Stanley

himself. When it did come up, it was discussed very briefly. Moreover, the one time the

government mentioned the statement, it asked the jury to consider it in determining

whether Stanley had the requisite knowledge, thus reducing the likelihood that the

statement would be used to draw the forbidden, he-has-a-bad-character-and-is-therefore-

guilty inference. On balance, we cannot say that the statement’s probative value was

outweighed by its tendency to cause unfair prejudice.

       Stanley contends that even if the statement was admissible to prove knowledge or

lack of mistake, the District Court erred in failing to instruct the jury that it could be

considered only for such purposes. Stanley did not request a limiting instruction in the

District Court, so we review for plain error. See Fed. R. Crim. P. 52(b); Lee, 612 F.3d at

191; United States v. Gibbs, 190 F.3d 188, 217 (3d Cir. 1999); Gov’t of the V.I. v.

Roldan, 612 F.2d 775, 780–81 (3d Cir. 1979); United States v. Greenlee, 517 F.2d 899,

904–05 (3d Cir. 1975). We conclude that the District Court’s failure to sua sponte issue a
                                               4
limiting instruction did not amount to plain error. See United States v. Simmons, 679

F.2d 1042, 1049–50 (3d Cir. 1982); Roldan, 612 F.2d at 780–81; Greenlee, 517 F.2d at

904–05 (where defendant objected to admission of other-acts evidence but did not request

a limiting instruction, its admission for impeachment purposes without a limiting

instruction was not plain error); accord United States v. Bamberg, 478 F.3d 934, 939 (8th

Cir. 2007); United States v. Gregory, 74 F.3d 819, 822 (7th Cir. 1996); United States v.

Parziale, 947 F.2d 123, 129 (5th Cir. 1991); United States v. Tunsil, 672 F.2d 879, 881

n.3 (11th Cir. 1982). 1

                                                 B.

       Stanley elected to testify at trial. On direct examination, Stanley tried to testify

about and have admitted into evidence a written statement that he had given to law

enforcement at the time of his arrest. In the statement, Stanley asserted that he did not

know what was in Peña’s bag. The government objected on hearsay grounds, to which

Stanley responded that the statement was admissible under the residual hearsay

exception. See Fed. R. Evid. 807. The District Court sustained the government’s

objection.


1
  Had Stanley requested a limiting instruction, the District Court clearly would have had to issue
one. See Fed. R. Evid. 105 (“When evidence which is admissible . . . for one purpose but not
admissible . . . for another purpose is admitted, the court, upon request, shall restrict the evidence
to its proper scope and instruct the jury accordingly.”) (emphasis added); see also Huddleston v.
United States, 485 U.S. 681, 691–92 (1988). However, since the statement did not figure
prominently into the trial, see supra, defense counsel may have declined to request a limiting
instruction for tactical reasons. See Albrecht v. Horn, 485 F.3d 103, 127 (3d Cir. 2007) (noting
that when other-acts evidence is “briefly or fleetingly presented,” an attorney may decline to
request a limiting instruction to avoid drawing attention to the evidence).


                                                  5
       We need not reach Stanley’s argument that the District Court erred in concluding

that the statement was inadmissible under the residual hearsay exception (though we have

our doubts that it did, see United States v. Lawrence, 349 F.3d 109, 117 (3d Cir. 2003)

(residual exception to be used “‘only rarely’” and “‘in exceptional circumstances’”)).

Any error in refusing to admit the statement on direct examination was clearly harmless:

the statement was admitted into evidence on cross-examination, Stanley testified about

and published it on redirect, and Stanley urged the jury to consider it during closing

arguments. See Fed. R. Crim. P. 52(a) (providing that “[a]ny error, defect, irregularity, or

variance that does not affect substantial rights must be disregarded”).

                                             C.

       Finally, Stanley challenges the sentence imposed by the District Court. He admits

that the Court committed no procedural errors, i.e., that the Court correctly calculated the

Guidelines range, correctly ruled on any departure motions (though it appears there were

none, see JA 233), and considered the factors set out in 18 U.S.C. § 3553(a). See United

States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006). He argues, though, that the Court

misapplied the § 3553(a) factors and that his sentence is therefore substantively

unreasonable. He asserts that he was merely a “mule” in the drug trade, and that his 97-

month sentence—the minimum sentence recommended by the Sentencing Guidelines—is

thus too long. We review the substantive reasonableness of a sentence for abuse of

discretion. United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc).

       When there has been no showing of procedural error, we accord substantial

deference “to the district court’s determination that the § 3553(a) factors, on a whole,
                                             6
justify the sentence.” Id. at 568 (internal quotation marks omitted); see also United

States v. Bungar, 478 F.3d 540, 543 (3d Cir. 2007) (an appellate court must be “highly

deferential” to a sentencing court’s application of the § 3553(a) factors); United States v.

Grier, 475 F.3d 556, 571 (3d Cir. 2007) (en banc). Thus, a defendant challenging the

substantive reasonableness of his sentence bears the heavy burden of establishing that “no

reasonable sentencing court would have imposed the same sentence on that particular

defendant for the reasons the district court provided.” Tomko, 562 F.3d at 568. Stanley

has failed to carry that burden. The District Court listened to the defendant’s allocution,

considered and discussed the § 3553(a) factors, and imposed a sentence of 97 months in

custody, the minimum sentence recommended by the Sentencing Guidelines. The

sentence was reasonable and will not be disturbed. 2

                                              III.

       For the foregoing reasons, we will affirm the District Court’s judgment.




2
 To the extent Stanley argues that the District Court erred in failing to apply a minor-role
adjustment under § 3B1.2 of the Sentencing Guidelines, the issue is not properly before us,
because Stanley did not request such an adjustment in the District Court, JA 233. See United
States v. Headley, 923 F.2d 1079, 1083 (3d Cir. 1991).
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