United States v. Hernandez-Guevara

Revised December 31, 1998

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 97-50946
_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JESUS HERNANDEZ-GUEVARA,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court
for the Western District of Texas
_________________________________________________________________
December 11, 1998
Before KING, GARWOOD, and HIGGINBOTHAM, Circuit Judges.

KING, Circuit Judge:

Defendant-appellant Jesus Hernandez-Guevara appeals his

conviction for conspiracy to transport aliens, illegal

transportation of aliens, and misprision of a felony. We affirm

the conviction. Hernandez also appeals his sentence, arguing

that the district court erred in requiring that the three-year

supervised release term assessed for his conviction run

consecutive to the supervised release term for an earlier

conviction. We agree and modify the sentence accordingly.

I. FACTUAL AND PROCEDURAL BACKGROUND
 On January 28, 1997, after receiving a telephone tip that a

smuggler would be transporting a group of undocumented aliens in

the area, United States Border Patrol agents set up surveillance

on U.S. Highway 277 between the Texas towns of Eagle Pass and

Carrizo Springs. Some agents were posted at two rest areas,

approximately thirteen and twenty-four miles east of Eagle Pass;

others were stationed along the highway closer to Carrizo

Springs. About an hour and a half after the Border Patrol set up

surveillance, Agent Jaime Kypuros, who was hiding in the brush

near the second rest area, saw a blue van traveling west on

Highway 277 toward Eagle Pass. The van slowed near the rest area

and put on its turn signal, but Kypuros and his partner could not

see whether it actually entered the rest stop. Between thirty

and fifty minutes later, Kypuros saw the van again, this time

traveling east on the highway. A white Lincoln Continental was

following about a quarter-mile behind the van. Agent Mario

Ramirez, who was stationed five miles east of Kypuros, saw both

vehicles pass twice; he estimated that they were two to three

miles apart when traveling west and five miles apart on the

return trip.

As the vehicles proceeded toward Carrizo Springs, Agent

Rodolfo Benavides, who was stationed east of Ramirez, saw the van

turn left onto Highway 191, which leads to U.S. Highway 83 and

Crystal City, Texas. Driving an unmarked truck, Benavides

followed the van for eight miles, to the intersection of Highways

2
191 and 83, where he stopped it. The driver of the van was Mike

Trevino; the eight other occupants were all undocumented aliens

from Mexico. After other agents arrived to assist Benavides, the

Lincoln, which Benavides estimated had been traveling three to

four miles behind the van, approached. The Lincoln slowed when

the driver saw the agents and the van, and Benavides flagged the

car down, displaying his credentials. Joe Sanchez was driving

the car; the passenger was defendant-appellant, Jesus Hernandez-

Guevara (Hernandez), also known by the nickname “Chuy.” The

agents arrested Trevino, Sanchez, Hernandez, and the aliens.

The evidence against Hernandez at trial included testimony

from the Border Patrol agents who stopped the vehicles, Sanchez,

and two of the aliens. Sanchez, who had pleaded guilty and

received a probated sentence, told the jury that he had agreed to

give Hernandez a ride from his home to Eagle Pass to pick up a

transmission. As they passed the first rest stop, Sanchez

noticed people entering a blue van, and Hernandez remarked that

these individuals were “his.” They continued driving for another

five miles, but then Hernandez told Sanchez to turn back. At

that point, Sanchez testified, he realized for the first time

that the people being picked up were undocumented aliens. He

became angry at Hernandez and drove on in silence until stopped

by the Border Patrol. Sanchez concluded that he had been brought

along to look for Border Patrol agents, but claimed that he did

no scouting. He did admit that Hernandez offered him money at

3
some point during the trip, although it is not clear from his

testimony whether the payment was to be compensation for scouting

or for driving Hernandez to Eagle Pass. At any rate, when they

saw that the van had been detained, Hernandez told Sanchez not to

say anything to the agents.

Two of the aliens, Juan Padron-Silva and José Norberto

Ortega-Martinez, provided additional evidence against Hernandez

in the form of post-arrest statements admitted by stipulation at

trial. Padron-Silva stated that he entered the United States the

day before his arrest; he had been told to wait for a smuggler,

and the van had picked him up. He was to be charged $600.00 for

his transportation. Ortega-Martinez described similar events.

He added that the smuggler’s name was “Chuy,” a name he

recognized because he had been transported to Oklahoma by a man

named Chuy two years earlier. From a photo lineup, Ortega-

Martinez identified Hernandez as the “Chuy” who had smuggled him

before.

In addition to testimony about the offenses with which

Hernandez was charged, the evidence at trial included references

to his past misconduct. The government’s first witness, Agent

Kypuros, testified that the multiple-agent surveillance was

established in response to a telephone call. Consistent with his

pretrial motion in limine, Hernandez objected that this was

irrelevant and prejudicial hearsay. The district court overruled

the objection, and Kypuros stated that “[b]ased on the phone

4
call,” the agents “prepared to go out to the highway and set up

in an effort, in an attempt to apprehend an alien smuggler.”

After describing the logistics of the stakeout, he added that in

setting up surveillance, he and another agent hid in the brush.

The following exchange ensued:

Q [by Assistant United States Attorney Robert Cadena] Why
did you hide in the brush?
A Because in the past, on several occasions--
MR. VILLARREAL [defense counsel]: Your Honor, I’m going to
object on relevancy grounds to anything that may have
happened in the past. It’s speculative. It has no
relevance to the facts before the jury in this case.
THE COURT: Overruled.
MR. CADENA: You may answer.
THE WITNESS: Okay. Based on Border Patrol experience and
intelligence reports many--
MR. VILLARREAL: I’ll object to any testimony concerning
intelligence reports as offering hearsay.
THE COURT: Sustained. Sustained as to intelligence report.
BY MR. CADENA:
Q Based on your training and intelligence why were you
hiding in the brush?
A I had seen, on several occasions, Mr. Hernandez travel on
that highway.

Defense counsel objected to this answer and moved for a mistrial,

arguing that an instruction would not cure the error. The trial

court agreed that “to instruct on it just exacerbates and

magnifies it” but denied the motion for mistrial.

Border Patrol Agent Robert Edwards also testified about

Hernandez’s past misconduct. Over objection, Edwards stated that

in 1996, he arrested Hernandez driving thirteen aliens in a

truck. At the bench before Edwards gave this testimony, defense

counsel objected that the prosecutor had not offered a theory to

support the introduction of the evidence. The trial court

5
overruled that objection, and in response to Hernandez’s request

for an on-the-record balancing of the probative value of

Edwards’s testimony against its prejudicial effect, it stated:

“But at least the Court has the impression that the defensive

theory, slash, argument would be that Mr. Hernandez-Guevara was

just out looking for car parts and happened to be in the wrong

place at the wrong time. And, therefore, the probative value

outweighs any improper prejudicial effect.” The district court

did not give a limiting instruction immediately after Edwards’s

testimony.

After Edwards took the stand, United States Probation

Officer Victor Calderon also testified to Hernandez’s prior

misconduct, stating that Hernandez had been convicted in 1979 and

1996 of transporting aliens. After admitting this evidence, the

court instructed the jury that it could consider the convictions

for the “very limited” purposes of

determin[ing] whether the defendant had the state of mind or
intent necessary to commit the crime charged in the
indictment in this case or whether this defendant had a
motive or opportunity to commit the acts charged in this
indictment, or whether this defendant acted according to a
plan or in preparation for the commission of a crime, or
whether the defendant committed the acts for which he is on
trial by accident or mistake or not.
And these are the very limited purposes for which
evidence of these other similar acts may be considered by
you.

Hernandez then moved for a mistrial “in view of the limited

instruction.” The court overruled the motion.

6
 During his closing argument, the prosecutor repeatedly

referred to Hernandez’s past misconduct. He suggested, for

example, that the jury “start by looking at the past” to

determine whether Hernandez “is responsible for this crime.” The

prosecutor then told the jury that the evidence about the past

was called “Rule 404(b) evidence” and could be used for a “very

limited purpose”:

Basically, that evidence was presented so that you can
see, was this some kind of mistake? Was somebody there at
the wrong place at the wrong time? Was it innocent behavior
out there that was being exhibited by the defendant, Chuy
Hernandez, when he just happened to be going past when the
aliens were being picked up and driving back following the
alien load? Is that all innocent behavior?

The district court overruled Hernandez’s objection to this

argument. Later, the prosecutor urged the jury to “look at it in

the context of 404(b) material. Look at it in the context of

intent. Look at it in the context of lack of mistake.”

Hernandez did not object or move for a mistrial on this basis.

Finally, the prosecutor asserted:

The fact is that this man is guilty by clear and convincing
evidence based on all the actions that were going on out
there and all the observations by trained anti-smuggling
unit agents, based on the coconspirator’s statements that
you heard and Joe Raymundo Sanchez what was going on in the
car, based upon the 404(b) material that you heard.

Hernandez objected that the prosecutor was “arguing [the

extrinsic evidence] again as direct evidence, as character

evidence.” The court sustained the objection but denied the

motion for mistrial.

7
 Some confusion arose at trial about whether Hernandez was on

bond at the time of the offenses complained of. The source of

the confusion and the district court’s response thereto will be

discussed in greater detail infra.

The jury convicted Hernandez of conspiracy to transport

aliens, two counts of illegal transportation of aliens, aiding

and abetting an offense against the United States, and misprision

of a felony, in violation of 18 U.S.C. § 371, 8 U.S.C.

1324(a)(1), 18 U.S.C. § 2, and 18 U.S.C. § 4. At the time of

sentencing, Hernandez was serving an unexpired sentence of one

year in prison for his 1996 conviction and was subject to a

three-year term of supervised release for that conviction. The

district court sentenced him to twenty-four months imprisonment

on the conspiracy and transportation charges and twelve months

imprisonment on the misprision count, to run concurrently with

each other but consecutively to the prison term in the 1996 case.

In addition, the court imposed a three-year period of supervised

release to run consecutively to the 1996 term of supervised

release. Hernandez appealed both his conviction and his

sentence.

II. DISCUSSION

A. Evidence of Extrinsic Offenses

On appeal, Hernandez argues that the district court abused

its discretion by allowing, over objection, testimony that he

smuggled aliens in the past. Specifically, he contends that the

8
district court should have excluded (1) Border Patrol Agent

Robert Edwards’s testimony that he arrested Hernandez

transporting aliens in 1996, (2) evidence that Hernandez had been

convicted of alien smuggling in 1979 and 1996, and (3) Border

Patrol Agent Jaime Kypuros’s reason for hiding in the brush,

which Hernandez claims amounted to an assertion that Hernandez

was a known alien smuggler. He also challenges the district

court’s limiting instructions as inadequate because they simply

listed the permissible uses of extrinsic offense evidence, rather

than specifying which uses applied in Hernandez’s case.

1. Standard of Review

Where the party challenging the trial court’s evidentiary

ruling makes a timely objection, we review that ruling under an

abuse-of-discretion standard. See United States v. Westmoreland,

841 F.2d 572, 578 (5th Cir. 1988). Such review is necessarily

heightened in a criminal case, however, which demands that

“evidence . . . be ‘strictly relevant to the particular offense

charged.’” United States v. Hays, 872 F.2d 582, 587 (5th Cir.

1989) (quoting Williams v. New York, 337 U.S. 241, 247 (1949)).

Similarly, where the appellant preserves error, an abuse-of-

discretion standard applies to our review of the district court’s

instructions to the jury. See United States v. Townsend, 31 F.3d

262, 270 (5th Cir. 1994). We also review the denial of motions

for mistrial or a new trial for abuse of discretion. See United

9
States v. Soto-Silva, 129 F.3d 340, 343 (5th Cir. 1997), cert.

denied, 118 S. Ct. 1822 (1998).

Where the party challenging the district court action fails

to make a timely objection, however, we review only for plain

error. See United States v. Burton, 126 F.3d 666, 671 (5th Cir.

1997). Federal Rule of Criminal Procedure Rule 52(b) provides

that “[p]lain errors or defects affecting substantial rights may

be noticed although they were not brought to the attention of the

court.” FED. R. CRIM. P. 52(b). In applying this rule, the

appellate court must determine (1) that there was an error, that

is, a deviation from a legal rule, (2) that the error is “plain,”

meaning obvious, and (3) that the error affected substantial

rights, meaning that it must be prejudicial and affect the

outcome of the district court proceeding. See United States v.

Olano, 507 U.S. 725, 731-35 (1993). The defendant, not the

government, bears the burden of persuasion with respect to

prejudice. See id. at 734. Finally, because plain error review

is discretionary rather than mandatory, the court of appeals

should correct a plain error affecting substantial rights only if

the error “seriously affect[s] the fairness, integrity or public

reputation of judicial proceedings.” Id. at 736 (internal

quotation marks omitted); see also United States v. Mansolo, 129

F.3d 749, 751 (5th Cir. 1997) (setting forth plain error

standard).

2. Analysis

10
 Although extrinsic offense evidence is not admissible to

prove the defendant’s bad character and action in conformity

therewith, it may be introduced to show motive, opportunity,

intent, preparation, plan, knowledge, identity, or absence of

mistake or accident. See FED. R. EVID. 404(b). Interpreting Rule

404(b), we have stated:

What the rule calls for is essentially a two-step test.
First, it must be determined that the extrinsic offense
evidence is relevant to an issue other than the defendant’s
character. 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.

United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en

banc).

Hernandez first contends that his prior smuggling activities

are irrelevant, as shown by the prosecution’s inability

adequately to articulate reasons for introducing them. This

argument lacks merit. As a preliminary matter, we find that the

government did make it clear to the jury that it should consider

the extrinsic offense evidence as probative of intent and lack of

mistake. During his closing argument, for example, the

prosecutor stated:

Where do you start? I submit to you you start by looking at
the past. This is what this evidence is about, the--well,
you can use it for a limited purpose. It’s what we call
Rule 404(b) evidence.
Basically, that evidence was presented so that you can
see, was this some kind of mistake? Was somebody there at
the wrong place at the wrong time? Was it innocent behavior
out there that was being exhibited by the defendant, Chuy

11
 Hernandez, when he just happened to be going past when the
aliens were being picked up and driving back following the
alien load? Is that all innocent behavior?

The prosecutor clearly indicated to the jury that it should

consider evidence of Hernandez’s prior bad acts for the “very

limited purpose” of showing absence of mistake. Later, he

explained again that the extrinsic offense evidence showed intent

and lack of mistake:

[H]ow do you know he’s not an observer? How do you know
he’s not just some person that’s on the side of the road?
Basically because you’ve seen the progression. You’ve
seen the progression of how to accomplish this. And you
look at it in the context of 404(b) material. Look at it in
the context of intent. Look at it in the context of lack of
mistake.

Thus, the prosecution emphasized that the “404(b) material” was

to be used to show intent and lack of mistake, thus rebutting

Hernandez’s defense that he was simply in the wrong place at the

wrong time. Hernandez’s assertion that the government is

obligated to state both the specific purpose for which extrinsic

offense evidence is being offered and the chain of inferences

leading from it to a fact of consequence is supported only by

out-of-circuit authority. See United States v. Murray, 103 F.3d

310, 316 (3d Cir. 1997), cert. denied, 119 S. Ct. 254 (1998);

United States v. Merriweather, 78 F.3d 1070, 1076 (6th Cir.

1996). It is true, of course, that we have held that the

government generally should explain why a defendant’s prior bad

acts are relevant. In United States v. Fortenberry, 860 F.2d

628, 633 (5th Cir. 1988), for example, we found that the

12
“government’s inability to articulate the probative value of the

[extrinsic offense] evidence, as well as the weakness of the

evidence linking Fortenberry to the extrinsic offenses, warrants

the conclusion that the primary impact of the evidence on the

proceedings was to increase the prejudice against Fortenberry.”

The Fortenberry prosecutor had, at different times, defended the

evidence as establishing motive, intent, opportunity, identity,

and plan. See id. This bears a superficial resemblance to

Hernandez’s case, in which the prosecutor suggested during a

pretrial motion in limine hearing that the jurors could use the

extrinsic offense evidence “to determine whether or not there was

motive, intent, opportunity, design, lack of mistake. And that’s

what we intend to offer it on.” Here, however, the government

did ultimately make clear why the evidence was introduced and

what elements of the defense it was intended to rebut.

We also agree with the prosecution and the trial court that

evidence that Hernandez had been convicted of two previous alien

smuggling offenses is relevant to his intent and the absence of

mistake or accident. Hernandez’s defense at trial was that he

had traveled to Eagle Pass to obtain car parts, that he

coincidentally fell in behind a van of illegal aliens, and that

Joe Raymundo Sanchez, himself a convicted felon, implicated him

in an attempt to gain favor with the Border Patrol agents.

Evidence that Hernandez had, on past occasions, smuggled aliens

with a guilty intent makes it more likely that he was not

13
innocently looking for car parts. Cf. United States v. Robles-

Vertiz, 155 F.3d 725, 730 (5th Cir. 1998) (holding that evidence

of the defendant’s previous alien smuggling activities was

admissible to show lack of mistake where his defense to the

latest smuggling charge was that he believed the alien to be a

United States citizen); United States v. Cheramie, 51 F.3d 538,

541-42 (5th Cir. 1995) (holding that evidence of the defendant’s

prior drug smuggling activities was admissible to show knowledge

and intent); United States v. Williams, 900 F.2d 823, 827 (5th

Cir. 1990) (holding that evidence of the defendant’s prior

mailings of drugs from California to New Orleans was admissible

to show knowledge and intent in the charged mailing).

Having found that the extrinsic offense evidence was

relevant, we turn to the second prong of the Beechum analysis.

On this point, Hernandez contends that the prejudicial effects of

his prior bad acts substantially outweighed their probative

value. He makes two subarguments: First, he claims that the

district court failed to conduct an adequate on-the-record

balancing of the extrinsic offense evidence’s prejudicial effects

and probative value. Second, he asserts that the court neglected

to give proper limiting instructions regarding the purposes for

which the jury could consider the evidence. We address these

contentions in turn.

We have held that the Beechum probative value/prejudice

inquiry must be articulated on the record upon a party’s request.

14
See United States v. Robinson, 700 F.2d 205, 213 (5th Cir. 1983).

We acknowledge that we have implied that conclusory statements do

not meet the Robinson articulation requirement. See United

States v. Zabaneh, 837 F.2d 1249, 1264 (5th Cir. 1988). In

Zabaneh, the district court simply announced, “I have made the

balancing judgments that are called for in the Beechum opinion at

pages 909 to 915.” Id. It is not clear, however, that Zabaneh

requires reversal simply because the trial judge’s articulation

of the Beechum probative value/prejudice inquiry lacks detail,

for the Zabaneh court also rested its decision on the fact that

the judge erroneously believed that evidence should be excluded

as unduly prejudicial only where it would “inflame the jury’s

passions.” Id. at 1265. Indeed, we suggested in a more recent

opinion that the result in Zabaneh hinged on the fact that the

court in that case affirmatively misunderstood the required

Beechum balancing. See United States v. Osum, 943 F.2d 1394,

1403 (5th Cir. 1991). In Osum, we declined to remand for

additional Beechum probative value/prejudice findings where the

trial judge responded to the defendant’s argument that the

evidence did not possess adequate probative value when measured

against its prejudicial effect by saying: “Well, I think it

does, and I just have to satisfy myself by another reading of

Beechum here for a minute.” After a brief recess, defense

counsel repeated his point that if the prejudicial effects

substantially outweighed the probative value, the evidence would

15
have to be excluded. The court responded: “That’s right. If I

felt that that’s what it was, and I do not, I do not, okay.” Id.

at 1402. On appeal, we held that such a statement was adequate

“at least where, as here, the following three factors are

present: there is no express request for such findings; the trial

court expressly states that it has made the Beechum probative

value/prejudice weighing and finds that the prejudice does not

substantially outweigh the probative value; there is nothing to

indicate that the trial court misunderstood or misapplied the

Beechum test.” Id. at 1403. Although Hernandez did explicitly

ask for Beechum findings, the trial judge in this case offered

considerably more than did his counterparts in Zabaneh and Osum:

He stated the defense theory that the extrinsic evidence would

rebut and concluded that, given this theory, the probative value

of the evidence outweighed any prejudicial potential. We decline

to conclude that the district court abused its discretion.

Nor can we say that the district court abused its discretion

in finding that the probative value of Hernandez’s prior

convictions was not substantially outweighed by its possible

prejudicial effects. Similarity between the elements of the

extrinsic offense and those of the charged offense may enhance

the probative value of the extrinsic offense evidence. See

United States v. Bermea, 30 F.3d 1539, 1562 (5th Cir. 1994)

(citing Beechum, 582 F.2d at 913). In this case, the extrinsic

evidence involved the same crime--alien smuggling--as was charged

16
in the indictment. Of course, a close resemblance between the

extrinsic offense and the charged offense also increases the

unfair prejudice to the defendant. See id. (citing Beechum, 582

F.2d at 915 n.20). But here, Hernandez’s prior misconduct lacked

the hallmarks of highly prejudicial evidence. See Fortenberry,

860 F.2d at 632. They were not violent acts, nor were they

greater in magnitude than the crimes for which Hernandez was on

trial, nor did they occupy more of the jury’s time than the

evidence of the charged offenses. Furthermore, the probative

value of Rule 404(b) evidence “is not an absolute; it must be

determined with regard to the extent to which the defendant’s

unlawful intent is established by other evidence, stipulation, or

inference.” Beechum, 582 F.2d at 914; see Williams, 900 F.2d at

827; United States v. Henthorn, 815 F.2d 304, 308 (5th Cir.

1987). The probative value of the extrinsic offense evidence was

relatively great: Hernandez based his defense on a claim that he

was merely in the wrong place at the wrong time and had been

framed by Sanchez. Other than Sanchez’s testimony, the admitted

evidence shed little light on Hernandez’s intent and whether his

alleged crime was the result of mistake or accident. For these

reasons, we decline to overturn the district court’s probative

value/prejudicial effect balancing.

We also reject Hernandez’s suggestion that the district

court abused its discretion in admitting the 1979 conviction

because it was stale and had been excluded during the motion in

17
limine hearing. The age of a prior conviction has never been

held to be a per se bar to its use under Rule 404. See United

States v. Broussard, 80 F.3d 1025, 1040 (5th Cir.), cert. denied,

117 S. Ct. 264 (1996). We have held that a fifteen-year-old

conviction for the same type of crime as that for which the

defendant is currently on trial is admissible to show intent,

especially where the other evidence of guilt is not strong. See

United States v. Chavez, 119 F.3d 342, 346-47 (5th Cir.), cert.

denied, 118 S. Ct. 615 (1997). Although Hernandez’s 1979

conviction was nearly eighteen years old, it involved exactly the

same crime as was charged in the indictment. Therefore, we

cannot say that the district court abused its discretion in

admitting this conviction. Hernandez also complains that the

prosecutor introduced this conviction without prior court

approval, in flagrant disregard of a pretrial motion in limine.

The record shows that the motion in limine extended to a 1978

arrest, which resulted in a conviction. At trial, the

prosecution claimed that the 1979 conviction introduced was not

the evidence that the court already had excluded. Even if it

was, we find that its introduction did not rise to the level of

prosecutorial misconduct, as the prosecution apparently believed

that the 1979 conviction was not barred by the motion in limine.1

1
The Presentence Investigation Report in Hernandez’s 1996
case, United States v. Hernandez, No. DR-96-CR-178 (W.D. Tex.
Feb. 11, 1997), suggests that the prosecutor may have been
correct. Under Hernandez’s criminal history, the report lists

18
Furthermore, it was properly admitted under Rule 404(b) and, as

we discuss below, the jury was properly instructed on the limited

purposes for which the evidence could be considered. See United

States v. Merkt, 794 F.2d 950, 963 n.15 (5th Cir. 1986)

(declining to find reversible error under similar circumstances).

Second, we consider whether the district court failed to

give adequate instructions limiting the purposes for which the

jury could consider the evidence. Hernandez claims that even

assuming that the evidence was admissible to show absence of

mistake, the court’s instructions “went far beyond that purpose,

telling the jury that it could rely on the convictions to show

state of mind or intent, motive, or opportunity, plan or

preparation, or accident or mistake.” At trial, however,

Hernandez did not object to the court’s instructions, nor did he

offer any suggestion regarding them. We therefore review only

for plain error. See United States v. Cortinas, 142 F.3d 242,

248 (5th Cir.) (reviewing for plain error where parties

challenging the limiting instructions as being erroneous or

inadequate failed to object or propose that other, preferable

instructions should have been given), cert. denied, 119 S. Ct.

224 (1998), and cert. denied, No. 98-6654, 1998 WL 772941 (U.S.

Nov. 30, 1998).

both an arrest on January 20, 1978 for aiding and assisting the
illegal entry of an alien, to which Hernandez pled guilty on
January 30, 1978, and an April 12, 1979 arrest for the same
charge, to which Hernandez pled guilty on April 17, 1979.

19
 The district court instructed the jury immediately after the

prosecution introduced evidence of the 1996 and 1979 convictions

that it could use that evidence only for the limited purposes

permitted by Rule 404(b). In its instructions to the jury, the

court reiterated this admonition. We have found no plain error

where the district court failed to give a limiting instruction

regarding extrinsic offense evidence altogether. See United

States v. Prati, 861 F.2d 82, 86-87 (5th Cir. 1988) (holding that

there was no plain error where a district court failed to give a

limiting instruction regarding extraneous acts and offenses where

court did warn the jury that the defendant was “not on trial for

any act or conduct or offense not alleged in the indictment”).

If a district court does not commit plain error by neglecting to

give a limiting instruction, we do not see how it does so by

reciting the permissible uses of extrinsic offense evidence as

laid out in Rule 404(b). It is true, of course, that we implied

in United States v. Anderson, 933 F.2d 1261, 1272-73 (5th Cir.

1991), that an instruction listing all the permissible Rule

404(b) uses for extrinsic offense evidence was too broad.

However, Anderson also involved a situation in which the

government never articulated the probative value of the evidence,

see id. at 1268, and the entire presentation of the evidence was

tainted by the fact that the court made no ruling that the jurors

could reasonably find that the defendant committed the extrinsic

crimes, see id. at 1273. In fact, it was not even clear from the

20
record that the Anderson trial judge conducted the Beechum

analysis. See id. We did not hold in Anderson, nor have we so

held since, that giving a broad instruction is, without more,

reversible error, and we decline to do so now.2

We also find that the district court did not err by

providing limiting instructions only after the government

introduced Hernandez’s convictions and in its final instructions

to the jury. Hernandez did not request a limiting instruction

after Edwards testified, and he stated that Kypuros’s remark

could not be cured with any instruction. In any case, a district

court need not provide a limiting instruction each and every time

a prior bad act is introduced into evidence. See United States

v. Asibor, 109 F.3d 1023, 1033 (5th Cir.), cert. denied, 118 S.

Ct. 254, and cert. denied, 118 S. Ct. 638 (1997).

B. Prosecutorial Misconduct

Hernandez also argues that his conviction should be reversed

because the government argued his extrinsic bad acts as

substantive evidence of guilt.

1. Standard of Review

2
It is not entirely clear what standard of review the
Anderson court applied when reviewing the district court’s
instructions. At the beginning of its discussion, the court
asserted generally that it would “reverse only for an abuse of
discretion.” Anderson, 933 F.2d at 1267-68. It did not,
however, make any mention of whether the defendant-appellant had
preserved error with respect to the limiting instruction.

21
 In reviewing a claim of prosecutorial misconduct, we must

decide whether the misconduct casts serious doubt upon the

correctness of the jury’s verdict. See United States v. Willis,

6 F.3d 257, 263 (5th Cir. 1993). We consider three factors:

(1) the magnitude of the prejudicial effect of the prosecutor’s

remarks, (2) the efficacy of any cautionary instruction by the

judge, and (3) the strength of the evidence supporting the

conviction. See United States v. Casel, 995 F.2d 1299, 1308 (5th

Cir. 1993). Improper prosecutorial comments require reversal

only if the comments substantially affected the defendant’s right

to a fair trial. See Bermea, 30 F.3d at 1563 (citing United

States v. Diaz-Carreon, 915 F.2d 951, 956 (5th Cir. 1990)). We

accord wide latitude to counsel during closing argument, and we

also give some deference to the district court’s determination

regarding the prejudicial or inflammatory nature of those

arguments. See id. at 1563.

2. Analysis

The record demonstrates that the government never attempted

to argue Hernandez’s prior bad acts as substantive evidence of

guilt. Hernandez contends that the prosecution made two explicit

references to his prior offenses: At the beginning of his

closing argument, the Assistant United States Attorney told the

jury that it should begin by looking to the past, to the “Rule

404(b) evidence,” and toward the end of his closing, he urged the

jury to consider the evidence “in the context of 404(b)

22
material.” As noted above, the prosecution’s explicit references

to the prior offenses were followed by urging the jury to use

them only for specific purposes. We do not believe this

constitutes arguing extrinsic offenses as substantive evidence of

guilt.

Hernandez also contends that the prosecutor twice intimated

that he was a professional alien smuggler by stating that tandem

smuggling was “about trying to distance yourself from the crime

that you’ve committed” and suggesting that Hernandez had

progressed from aiding and abetting to transporting aliens

himself to distancing himself from the load by using someone

else’s car. The first reference to tandem smuggling, however,

contained absolutely no suggestion that Hernandez had been

convicted of past smuggling offenses. The second reference was

made just after the prosecutor urged the jury to view the Rule

404(b) evidence in the context of intent and lack of mistake.

Contrary to Hernandez’s assertion that the prosecutor was

suggesting that he was a professional smuggler who should be

punished regardless of his guilt of the present charges, the

challenged remarks suggested only that Hernandez’s innocent-

bystander defense was not worthy of belief. Finally, the

prosecutor’s remarks that Hernandez viewed alien-smuggling as a

business rather than a philanthropic attempt to improve the lives

of Mexican citizens contained no reference to the past offenses.

We find that the prosecutor engaged in no misconduct and that,

23
therefore, the district court did not abuse its discretion by

permitting the challenged argument.

C. District Court’s Comments

Hernandez also complains he was denied a fair trial because

the district court “instructed” the jury that it was “satisfied”

that Hernandez was on bond at the time of his arrest, thereby (1)

depriving Hernandez of the right to have a jury determine all

factual issues, (2) improperly testifying, and (3) suggesting to

the jury that the court was biased in favor of the prosecution.

Some background on this “instruction” is in order.

Towards the end of the trial, Probation Officer Calderon

identified the judgment covering Hernandez’s 1996 smuggling

conviction, for which Hernandez was sentenced on January 31,

1997. Defense counsel elicited from Calderon that he had been

present at Hernandez’s sentencing on January 31 and that

Hernandez had been in the custody of the U.S. Marshal at the

time. Counsel then questioned how, if he was in custody awaiting

sentencing, Hernandez could have committed the crimes alleged in

the indictment on January 28. On redirect, Calderon testified

that Hernandez had been out on bond on that date, but defense

counsel objected that Calderon had no personal knowledge of

Hernandez’s bond status, and the court sustained the objection.

At an on-the-record bench conference, the district court told

counsel that “[s]omehow or other we’ve got to clear up this,

perhaps, misconception that [Hernandez] wasn’t out there on

24
January 28th which is a great defensive tactic.” Noting that

pretrial service and marshal records showed that Hernandez had

been on bond on January 28, the court indicated its desire to

tell the jury what “the court records indicate.” Hernandez’s

counsel objected that pretrial service documents are not

admissible at trial.

At the court’s suggestion, the government called courtroom

deputy Gloria Vela as a witness, but she was unable definitively

to confirm Hernandez was on bond on January 28. The government

then requested permission to call Stacy Salinas of the U.S.

Pretrial Services Office. The court responded:

If you think it’s necessary. But I now see a--I have in
here in the court record an agreed motion to set the bond
signed by Dan Newsome, attorney for the defendant, and
Robert Cadena, attorney for the United States. And then
next, on September the 4th, 1996, I find an order that I
signed approving the agreed motion to set the bond.

Nevertheless, the government proceeded to examine Salinas, who

testified that Hernandez called in to report to pretrial services

on January 27, that her office received notice of his arrest on

January 29, and that she interviewed Hernandez on January 30.

The court then told the jury, “Ladies and gentlemen, you’re--you

are instructed that the Court is satisfied that Mr. Jesus

Hernandez-Guevara was not in federal custody and was out on bond

as of January 28th, 1997.” Hernandez’s counsel moved for a

mistrial “to protect the record” and objected “to the Court’s

statements as being a comment on the weight of the evidence.”

25
The mistrial was denied and the objection was overruled, and the

government rested its case.

1. Standard of Review

The objection that Hernandez’s counsel made, i.e., that the

“instruction” was a comment on the weight of the evidence, did

not provide an adequate predicate for Hernandez’s argument on

appeal that the instruction deprived Hernandez of his right to

have the jury determine all factual issues. Accordingly, we

review this challenge for plain error. See United States v.

Jobe, 101 F.3d 1046, 1061 (5th Cir. 1996), cert. denied, 118 S.

Ct. 81 (1997). The objection arguably does provide an adequate

predicate for Hernandez’s second and third arguments that the

“instruction” constituted improper judicial testimony and

suggested to the jury that the court was biased in favor of the

prosecution. In reviewing these challenges, we must “determine

whether the judge’s behavior was so prejudicial that it denied

the defendant a fair, as opposed to a perfect, trial.” Bermea,

30 F.3d at 1569 (citations omitted). In doing so, we examine the

trial court’s actions in the context of the entire record. See

United States v. Saenz, 134 F.3d 697, 702 (5th Cir. 1998)

(quoting United States v. Lance, 853 F.2d 1177, 1182 (5th Cir.

1988)).

2. Analysis

a. Refusing to Submit a Fact Issue to the Jury

26
 We consider first Hernandez’s claim that by “instructing”

the jury that it was “satisfied” that Hernandez was on bond at

the time of his arrest, the district court improperly removed an

issue of fact from the province of the jury. In a criminal case,

“no fact, not even an undisputed fact, may be determined by the

Judge. The plea of not guilty puts all in issue, even the most

patent truths.” United States v. Johnson, 718 F.2d 1317, 1322

(5th Cir. 1983) (en banc) (quoting Roe v. United States, 287 F.2d

435, 440 (5th Cir. 1961)).

In this case, as we said above, we apply plain error review

to determine whether such a mistake even occurred. As we noted

in Subsection II.A.1, plain error exists only where (1) there was

an error, (2) the error is “plain,” and (3) the error affected

substantial rights. After reviewing the record as a whole, we

find it questionable whether there was Johnson error at all, much

less plain error. The court was merely trying to forestall any

confusion potentially resulting from Hernandez’s suggestion that

because he was in federal custody at his sentencing for another

offense on January 31, 1997, he was also in custody on January 28

and so could not have committed the crime charged in the

indictment. Hernandez conceded in his opening statement that he

was in the Lincoln, and his defense throughout the trial was that

he was simply in the wrong place at the wrong time. Nearly every

witness testified that he was in the Lincoln at the time of his

arrest. It was only after the government called two witnesses to

27
testify to Hernandez’s bond status that the court, apparently in

an attempt to avoid confusing the jury and drawing out the

proceedings longer than necessary given the non-issue of

Hernandez’s presence in the Lincoln, made its statement. We also

note that the court emphasized to the jury that it was the

ultimate judge of the facts and that it should not interpret any

judicial remarks as a comment on the weight of the evidence. We

do not believe that the court intended to preempt the jury’s

determination as to Hernandez’s whereabouts on January 28.

b. Improper Judicial Testimony and Appearance of Bias

We find it doubtful that Hernandez’s objection that the

judge’s statement was a “comment on the weight of the evidence”

preserves error as to his final two arguments. Assuming without

deciding that it did and that the court abused its discretion, we

find the error harmless. A nonconstitutional error in a federal

criminal case3 requires reversal only if it had substantial and

injurious effect or influence in determining the jury’s verdict.

See generally Brecht v. Abrahamson, 507 U.S. 619, 631-32 (1993)

(discussing harmless error standard for nonconstitutional error).

Both of Hernandez’s contentions essentially assert that the judge

signaled his views to the jury and that they might have credited

3
A breach of the Federal Rules of Evidence does not, in
itself, offend the Constitution, rising to the level of a
constitutional violation only if it results in prejudice so great
as to deny a defendant his Fifth Amendment right to a fair trial.
Cf. United States v. Lane, 474 U.S. 438, 446 n.8 (1986) (noting
the nonconstitutional nature of improper joinder).

28
his view that Hernandez was not on bond. But we do not see how

the judge’s comment could have had a substantial and injurious

effect on the verdict in Hernandez’s case. There was

overwhelming evidence, as we noted above, that Hernandez was in

the Lincoln at the time of his arrest.

D. Consecutive Terms of Supervised Release

Finally, Hernandez argues that the district court erred as a

matter of law in requiring that the three-year supervised release

term for his 1997 conviction run consecutive to the three-year

term of supervised release on his 1996 conviction, United States

v. Hernandez, No. DR-96-CR-178 (W.D. Tex. Feb. 11, 1997). Thus,

Hernandez claims, he is now wrongly subject to six, rather than

three, years of post-incarceration supervision.

1. Standard of Review

We review the district court’s application of the Sentencing

Guidelines de novo, see United States v. Sylvester, 143 F.3d 923,

931 (5th Cir. 1998), and its factual findings for clear error,

see United States v. Upton, 91 F.3d 677, 687 (5th Cir. 1996),

cert. denied, 117 S. Ct. 1818 (1997). A sentence will be upheld

on appeal unless it was imposed in violation of law, imposed as a

result of an incorrect application of the sentencing guidelines,

or outside the range of the applicable sentencing guideline and

is unreasonable. See United States v. Wyjack, 141 F.3d 181, 183

(5th Cir. 1998) (citing United States v. Garcia, 962 F.2d 479,

480-81 (5th Cir. 1992)).

29
 2. Analysis

Federal law mandates that once a criminal defendant is

released from prison, his supervised release term must run

concurrently to any other supervision to which he is subject:

The term of supervised release commences on the day the
person is released from imprisonment and runs concurrently
with any Federal, State, or local term of probation or
supervised release or parole for another offense to which
the person is subject or becomes subject during the term of
supervised release.

18 U.S.C. § 3624(e). Under a plain reading of the statute,

Hernandez’s supervised release term for the 1997 conviction must

run concurrently to any supervised released term for another

offense, including the 1996 alien smuggling offense. Cf. United

States v. Gonzales, 520 U.S. 1, 5, 9-10 (1997) (reading the

phrase “any other term of imprisonment” to include, without

limit, all terms of imprisonment to which a defendant may be

subject). Indeed, at least two of our sister circuits have held

that § 3624(e) prohibits consecutive supervised release terms.

See United States v. Bailey, 76 F.3d 320, 323-24 (10th Cir.),

cert. denied, 116 S. Ct. 1889 (1996) (“The meaning of [§ 3624(e)]

clearly dictates that the district court erred in sentencing

Appellant to consecutive terms of supervised release for separate

offenses.”); United States v. Gullickson, 982 F.2d 1231, 1236

(8th Cir. 1993) (holding that § 3624(e) “unambiguously states

that terms of supervised release on multiple convictions are to

run concurrently”).

30
 The government’s arguments in support of the sentence lack

merit. The United States points out that 18 U.S.C. § 3583, which

empowers federal courts to impose supervised release, requires

judges to “consider the factors set forth in § 3553(a)” when

crafting a sentence. See 18 U.S.C. § 3583(a), (c). Section

3553(a) directs the court to take into account, inter alia, “the

circumstances of the offense and the history and characteristics

of the defendant.” See 18 U.S.C. § 3553(a)(1). In this case,

the government argues, Hernandez was subject to an undischarged

term of imprisonment on his 1996 conviction, and the sentencing

guidelines therefore allowed the district court to impose either

concurrent or consecutive terms of imprisonment. See U.S.

SENTENCING GUIDELINES MANUAL § 5G1.3(c) (1997). The district court

explicitly found, based on his “record,” that Hernandez needed

“to be under supervision for as long as we can possibly keep him

under supervision.” But the fact that the district court had

statutory and guideline authority to impose consecutive prison

terms for Hernandez’s 1996 and 1997 convictions has no bearing on

the question of whether he properly sentenced Hernandez to

consecutive terms of supervised release. Even when federal law

requires consecutive terms of imprisonment, the supervised

release term “is to run concurrently with any other term of

supervised release imposed.” Id. § 5G1.2 commentary. More

broadly, § 3553(a)’s general requirement that courts consider

characteristics specific to the defendant and his crime when

31
fashioning a sentence does not nullify § 3624(e)’s explicit

prohibition on consecutive supervised release terms. “Given this

clear legislative directive, it is not for the courts to carve

out statutory exceptions based on judicial perceptions of good

sentencing policy.” Gonzales, 520 U.S. at 10 (discussing 18

U.S.C. § 924(c)).

Our inquiry does not end here, however. We must also

determine whether we can modify Hernandez’s sentence to comply

with § 3624(e) or whether we must remand for resentencing. Most

of the time when we find that the district court has committed

harmful error at sentencing, we must vacate and remand for

resentencing. See United States v. Williams, 961 F.2d 1185, 1187

(5th Cir. 1992) (citing Williams v. United States, 503 U.S. 193,

204-05 (1992)). When the record shows that the district court

made it clear that the defendant should be sentenced to the

maximum term permitted by the guidelines, we need not waste

judicial resources by remanding for what undoubtedly would be a

rote resentencing. See United States v. Mills, 9 F.3d 1132, 1139

(5th Cir. 1993); United States v. Tello, 9 F.3d 1119, 1131 n.42

(5th Cir. 1993). In Hernandez’s case, the district court

explicitly stated that, as far as it was concerned, Hernandez

should be under supervision for as long as possible. So, instead

of vacating and remanding for resentencing by the district court,

we modify the consecutive feature of the supervised release term

imposed by the district court so that the supervised release term

32
will run concurrently with the term of supervised release imposed

in United States v. Hernandez, No. DR-96-CR-178 (W.D. Tex. Feb.

11, 1997), and affirm Hernandez’s sentence as thus modified.4

III. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of

conviction and AFFIRM the sentence as modified.

4
We thus modify the first two sentences of the supervised
release section of the judgment in United States v. Hernandez-
Guevara, DR-97-CR-44, at 3 (W.D. Tex. Oct. 31, 1997), to read:
“Upon release from imprisonment, the defendant shall be on
supervised release for a term of 3 years on each of Counts 1, 2,
and 3, and 1 year on Count 4, to run concurrently. These terms
of supervised release shall run concurrently with the term of
supervised release imposed in DR-96-CR-178, United States of
America v. Jesus G. Hernandez.” The remainder of the judgment in
Hernandez-Guevara, No. DR-97-CR-44, shall remain the same.

33