     Case: 13-40481      Document: 00512603925         Page: 1    Date Filed: 04/22/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 13-40481
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            April 22, 2014
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

ERICK OCHOA-RODRIGUEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:12-CR-1824-1


Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM: *
       Following a jury trial, Erick Ochoa-Rodriguez was convicted of one
charge of conspiring to possess with intent to distribute 175 kilograms of
marijuana and one charge of possessing 25 kilograms of marijuana with intent
to distribute. He was sentenced to serve two concurrent 115-month prison
terms as well as two concurrent four-year terms of supervised release.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
       Case: 13-40481   Document: 00512603925    Page: 2   Date Filed: 04/22/2014


                                  No. 13-40481

        In his first appellate claim, Ochoa-Rodriguez argues that the district
court abused its discretion by admitting evidence at trial pursuant to Federal
Rule of Evidence 404(b). He contends that the disputed evidence should not
have been admitted because it was of limited probative value and was unduly
prejudicial. We disagree.
        We review the admission of Rule 404(b) evidence in a criminal case under
a heightened abuse of discretion standard. United States v. Olguin, 643 F.3d
384, 389 (5th Cir. 2011). We have set forth a two-part test to determine
whether evidence is admissible under Rule 404(b). United States v. Beechum,
582 F.2d 898, 911 (5th Cir. 1978) (en banc). “First, it must be determined that
the extrinsic evidence is relevant to an issue other than the defendant’s
character.” Id. “Second, the evidence must possess probative value that is not
substantially outweighed by its undue prejudice and must meet the other
requirements of Rule 403.” Id. Application of this analysis shows no abuse of
discretion in connection with the challenged ruling. See Olguin, 643 F.3d at
389.
        The instant case is similar to United States v. Hernandez-Guevara, 162
F.3d 863 (5th Cir. 1998). Both cases involve a defendant who argued that he
had not committed the crime alleged and was simply in the wrong place at the
wrong time. Too, both cases involve the admission of Rule 404(b) evidence
pertaining to the defendant’s prior bad acts, which were similar to the charges
alleged at trial.
        In Hernandez-Guevara, we concluded that the disputed evidence was
“relevant to [Hernandez-Guevara’s] intent and the absence of mistake or
accident.” 162 F.3d at 871. This was because “[e]vidence that Hernandez had,
on past occasions, smuggled aliens with a guilty intent makes it more likely
that he was not innocently” running errands when he was arrested near a van



                                        2
    Case: 13-40481    Document: 00512603925     Page: 3   Date Filed: 04/22/2014


                                 No. 13-40481

transporting illegal aliens. Id. The same logic applies with equal force in the
instant case, and evidence showing that Ochoa-Rodriguez had previously been
involved with marijuana trafficking “makes it more likely that he was not
innocently” going for a walk or run when he was found and arrested near the
area where a marijuana-laden car was abandoned. See id. Consequently, we
conclude that the challenged evidence was relevant to issues other than Ochoa-
Rodriguez’s character. See id; Beechum, 582 F.2d at 911.
      This is not, however, the end of the analysis, and prejudice must still be
considered.   See Beechum, 582 F.2d at 911.      When making a decision on
whether the probative value of extrinsic evidence outweighs its potential
prejudice, we consider “(1) the government’s need for the extrinsic evidence,
(2) the similarity between the extrinsic and charged offenses, (3) the amount
of time separating the two offenses, and (4) the court’s limiting instructions.”
United States v. Kinchen, 729 F.3d 466, 473 (5th Cir. 2013).
      Consideration of these factors supports the district court’s decision to
admit the questioned evidence. An examination of the trial transcript shows
that this evidence was needed to show intent and lack of mistake or accident.
See id.; see also Hernandez-Guevara, 162 F.3d at 871. The challenged evidence
pertained to acts that were similar to the charged offense. See Beechum, 582
F.2d at 911; Kinchen, 729 F.3d at 474; United States v. Gadison, 8 F.3d 186,
192-93 (5th Cir. 1993). We note, too, that the challenged evidence was not so
outrageous as to inflame the jury. See United States v. Yi, 460 F.3d 623, 633
(5th Cir. 2006); see also Hernandez-Guevara, 162 F.3d at 872.
      The acts related to the challenged evidence were temporally proximate
to the acts underlying the charges against Ochoa-Rodriguez. See Beechum, 582
F.2d at 911. Finally, the court instructed the jury as to the limited use of the
Rule 404(b) evidence both when it was admitted and when it charged the jury



                                       3
    Case: 13-40481     Document: 00512603925      Page: 4   Date Filed: 04/22/2014


                                  No. 13-40481

before deliberations. See Beechum, 582 F.2d at 911. The district court did not
abuse its discretion by admitting evidence pursuant to Rule 404(b).            See
Olguin, 643 F.3d at 389.
      Next, Ochoa-Rodriguez argues that the district court erred by concluding
that he was a leader or organizer for sentencing purposes. We review this
claim for clear error. United States v. Scroggins, 485 F.3d 824, 834 (5th Cir.
2007). Our review of the record shows that this standard has not been met, as
the district court was presented with evidence sufficient to support its finding
that Ochoa-Rodriguez “was an organizer or leader of a criminal activity that
involved five or more participants or was otherwise extensive.” See U.S.S.G.
§ 3B1.1(a).
      Finally, we agree with Ochoa-Rodriguez’s contention that he received an
illegal sentence with respect to the distribution charge. The district court
commits plain error when it imposes a sentence in excess of the statutory
maximum. United States v. Thomas, 600 F.3d 387, 388 (5th Cir. 2010). One
who, like Ochoa-Rodriguez, is convicted of possessing less than 50 kilograms
of marijuana with intent to distribute may be sentenced to serve no more than
five years in prison and three years on supervised release.             21 U.S.C.
§ 841(a)(1), (b)(1)(D); United States v. Garcia, 242 F.3d 593, 600 (5th Cir. 2001).
Consequently, the district court plainly erred by imposing a sentence of 115
months in prison and a four-year term of supervised release with respect to the
possession charge. See Thomas, 600 F.3d at 388. Ochoa-Rodriguez’s sentence
on the possession charge is vacated, and this case is remanded for resentencing
on that charge only.
      Additionally, the judgment shows that Ochoa-Rodriguez was convicted
of “Possession with intent to distribute 100 kilograms or more, that is,
approximately 175 kilograms of marijuana.” This is erroneous because the



                                        4
    Case: 13-40481     Document: 00512603925     Page: 5   Date Filed: 04/22/2014


                                  No. 13-40481

jury found that this charge involved 25 kilograms, or less than 50 kilograms,
of marijuana. We may remand a case to the district court with instructions to
correct clerical errors in judgments. See FED. R. CRIM. P. 36; United States v.
Powell, 354 F.3d 362, 371-72 (5th Cir. 2003). Consequently, we also remand
with an instruction for the district court to correct this apparent clerical error
in the judgment.
      CONVICTIONS AFFIRMED; SENTENCE AFFIRMED IN PART AND
VACATED IN PART; REMANDED FOR RESENTENCING IN PART AND
FOR CORRECTION OF CLERICAL ERROR IN JUDGMENT.




                                        5
