United States v. Davis

FILED
United States Court of Appeals
Tenth Circuit

PUBLISH February 25, 2011
Elisabeth A. Shumaker
UNITED STATES COURT OF APPEALS Clerk of Court

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v. No. 09-3010
ANDRE DAVIS,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. NO. 03-CR-10157-JTM)

Gregory A. Prebish, Jackson, Wyoming (Dwight L. Miller, Topeka, Kansas, on
opening brief) for Appellant.

David M. Lind, Assistant United States Attorney (Lanny D. Welch, United States
Attorney, with him on the briefs) Office of the United States Attorney, Wichita,
Kansas, for Appellee.

Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.

TYMKOVICH, Circuit Judge.

Andre Davis was arrested in Kansas during a traffic stop after a search of

his rental car revealed a bag containing cocaine. Prior to trial, the government

gave notice pursuant to 21 U.S.C. § 851 it intended to use two prior convictions
to enhance Davis’s sentence upon conviction. One conviction did not qualify for

sentencing enhancement because it occurred in Indiana after Davis’s arrest in

Kansas, but the other, although it listed the wrong case number, was used to

enhance Davis’s sentence to a mandatory minimum of 240 months’ imprisonment.

At trial, pursuant to Federal Rule of Evidence, 404(b) the government also used

Davis’s subsequent arrest in Indiana as evidence of his motive or intent to commit

drug trafficking in Kansas.

Davis was convicted of various drug possession and distribution charges,

and appeals three decisions of the district court. Davis argues the district court

erred in (1) denying his motion to suppress the search of his car; (2) imposing an

enhanced sentence because of improper notice of a prior conviction under 21

U.S.C. § 851; and (3) admitting evidence of his drug arrest in Indiana to prove

motive or intent in violation of Rule 404(b). We conclude the district court did

not err in finding reasonable suspicion justified the detention and that Davis’s

subsequent consent to the search was voluntary; the erroneous information in the

government’s notice of prior convictions did not prejudice Davis; and the

evidence of another, similar crime was admissible to show motive or intent.

Exercising jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742,

we AFFIRM.

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 I. Background

Kansas state troopers stopped a rental car driven by Myron Wynn, in which

Davis and Kericka Kirkland were passengers. After questioning Davis and Wynn

separately, the troopers recognized they provided inconsistent statements

regarding their travel plans and the rental car. Davis and Wynn also appeared

abnormally nervous, and a criminal history check revealed Davis’s prior record

for dealing cocaine. The troopers issued a warning ticket to Wynn and requested

consent to search the vehicle, which he refused. They requested consent from

Davis, who initially refused, but later consented to the search. The troopers

searched the vehicle and located a bag containing cocaine. They placed Davis,

Wynn, and Kirkland under arrest. Davis filed a motion to suppress the evidence

discovered during the search of the vehicle, arguing the troopers lacked

reasonable suspicion to detain him beyond the time necessary to conduct a traffic

stop and failed to obtain valid consent to search the vehicle. The district court

held an evidentiary hearing and denied the motion.

Prior to trial, the government filed an information notifying Davis the

government would seek an enhanced sentence upon his conviction based upon his

two prior felony drug convictions in Indiana. However, one conviction occurred

after Davis’s arrest in this case and thus did not qualify as a prior conviction for

enhancement. For the other prior conviction, which qualified for the sentencing

enhancement, the government listed the incorrect case number. In his objections

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to the presentencing report and at his sentencing hearing, Davis objected to the

adequacy of the notice in the information, but not based upon the erroneous case

number. The district court rejected Davis’s arguments and found the information

was adequate to give Davis proper notice that he faced an enhanced sentence.

Davis was sentenced to the statutory mandatory minimum of 240 months’

imprisonment, which was to run concurrently with a forty-five year Indiana state

sentence Davis was already serving.

Also prior to trial, Davis filed a motion in limine to exclude evidence the

government planned to introduce at trial. The evidence was based on a drug

related arrest that occurred in Indiana after the traffic stop and arrest in this case.

In that case, Davis was found inside a house during the execution of a search

warrant, holding the keys to a rental car that was later found to contain a bag of

cocaine. The government offered the subsequent drug arrest as evidence of

Davis’s knowledge, intent, and lack of mistake or accident on the basis it would

demonstrate Davis’s subsequent cocaine possession in a rental car. Davis moved

to exclude the evidence arguing the probative value of the evidence would be

outweighed by substantial prejudice to Davis. The district court denied the

motion and allowed the evidence under Rule 404(b) to show knowledge, intent,

and lack of mistake or accident.

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 II. Discussion

Davis raises a series of challenges to his trial and sentencing. He contends

the district court erred by (1) denying his motion to suppress, (2) imposing a

twenty-year mandatory minimum sentence pursuant to 21 U.S.C. § 851, and

(3) admitting evidence of subsequent bad acts pursuant to Federal Rule of

Evidence 404(b). We discuss each in turn.

A. Motion to Suppress

Davis first argues the district court erred by denying his motion to suppress

because the troopers (1) lacked reasonable suspicion to detain Davis beyond the

scope and duration of the traffic stop, and (2) failed to obtain valid consent from

Davis to search the vehicle.

When reviewing the denial of a motion to suppress, we accept the district

court’s factual findings unless clearly erroneous and view the evidence in the

light most favorable to the government. United States v. Gregoire, 425 F.3d 872,

875 (10th Cir. 2005). We review de novo reasonableness under the Fourth

Amendment. Id.

1. The Traffic Stop

In the morning of April 9, 2003, a Kansas Highway Patrol trooper stopped a

rental car Davis was traveling in for speeding. The trooper spoke to the driver,

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Myron Wynn, and warned him he was speeding and needed to slow down. 1

Davis and Kericka Kirkland, another passenger, were seated in the front and back

passenger seats, respectively. The trooper requested Wynn’s driver’s license and

registration and questioned him about his travel itinerary. Wynn claimed he was

coming from “Vegas.” R., Vol. 3, Doc. 191 at 69. The trooper also requested

identification from Davis and Kirkland as well as the rental agreement for the

vehicle. He then returned to his patrol car.

Once back in the patrol car, the trooper radioed another officer, disclosing

that he stopped a driver who appeared so nervous he was “ready to jump out of

his pants.” Id. at 84. The trooper also requested assistance at the traffic stop. He

ran a criminal history check on Davis, Wynn, and Kirkland and waited for

backup. After the second trooper arrived, the troopers discussed why Wynn

would have rented a car in Los Angeles—as indicated on the car rental

agreement—if he was coming from Las Vegas. The rental agreement stated the

car was rented at 10 P . M . on April 7, 2003 at the Los Angeles International

Airport (LAX) and was due to be returned on April 10, 2003 in Indianapolis,

Indiana. The stop occurred around 7:45 A . M . on April 9, 2003, approximately

thirty-six hours after the car was rented. The troopers recognized the

inconsistency between the rental agreement and Wynn’s statement. They decided

1
An in-car video camera in the trooper’s patrol car captured video of the
traffic stop, and a microphone on the trooper’s uniform captured his
conversations.

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to continue questioning Wynn as well as Davis because his name was on the

rental agreement.

The trooper who initiated the stop again approached the vehicle, requested

Wynn step out of the vehicle, and questioned him regarding his travel itinerary.

Wynn replied all three had traveled from Indianapolis to Las Vegas, stayed there

for approximately two days, and now were returning to Indianapolis. Wynn said

they had driven a different rental car to Las Vegas, which was then stolen and

required them to rent another vehicle. When asked if Las Vegas was the only city

they had visited, Wynn replied Las Vegas was where they were gambling. Wynn

then returned to the vehicle.

The trooper then asked Davis to exit the vehicle and questioned him in

front of the patrol car about his travel itinerary and the car rental. Davis claimed

they had driven out to California in a rental car Kirkland had rented from Budget

in Indianapolis with another individual, Robert Day. Davis explained they had

driven from Indianapolis to Harbor City, California, then back through Las Vegas,

and their first rental car had been stolen in Harbor City. The trooper inquired

where Davis had rented their current vehicle, and Davis stated he rented it

somewhere in California. Davis hesitated to say exactly where he had rented the

vehicle but finally claimed he rented it in Harbor City. The trooper then retrieved

the rental car paperwork and showed Davis it listed the vehicle as rented at LAX.

Davis explained he was confused between the airport and Harbor City because the

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car was stolen in Harbor City and thus he had to rent a car at LAX. Davis

appeared nervous and agitated during the questioning and several times corrected

or modified his answers.

The trooper returned to his patrol car, where the second trooper had

remained, and discussed the situation with him. They proceeded to look for

“Arbor City” on a map of California and could not locate it. The trooper believed

Davis had said he rented the car in “Arbor City” rather than “Harbor City.” The

second trooper located “Harbor City” on the map, which is in the southern part of

Los Angeles and approximately fifteen miles south of LAX. During this time,

dispatch reported to the troopers that Davis had a prior record for dealing cocaine.

The trooper issued a warning ticket to Wynn, returned the rental papers and

documents collected from Wynn, Davis, and Kirkland, and told Wynn they were

“free to go.” R., Vol. 3, Doc. 191 at 29. He then asked Wynn if he had anything

illegal in the vehicle and if he could search the vehicle. Wynn declined consent

saying he was ready to leave. The trooper asked Davis if he had anything illegal

in the vehicle, and Davis replied he did not. The trooper again said they were

free to leave but requested to search the vehicle. Davis declined consent for the

search.

Before Davis departed, the trooper requested a canine unit and decided the

second trooper and he should pat down the passengers for weapons. Davis asked

how long it would take for the canine unit to arrive. The trooper replied it would

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arrive in approximately thirty minutes. Davis then asked how long it would take

the troopers to search the vehicle by hand. The trooper informed him it would

take five to ten minutes. Davis then consented to the search of the vehicle.

Before initiating the search, the trooper inquired again to clarify and confirm

Davis consented to the search. Davis repeated his consent. The troopers searched

the vehicle, located a black bag containing cocaine, and placed Davis, Wynn, and

Kirkland under arrest.

2. Reasonable Suspicion

Routine traffic stops are “governed by the principles developed for

investigative detentions set forth in Terry v. Ohio.” United States v. Guerrero-

Espinoza, 462 F.3d 1302, 1307 (10th Cir. 2006). We conduct a two-step inquiry

to assess the constitutionality of a traffic stop and determine (1) “whether the

officer’s action was justified at its inception,” and, if so, (2) “whether the

resulting detention was reasonably related in scope to the circumstances that

justified the stop in the first place.” United States v. Valenzuela, 494 F.3d 886,

888 (10th Cir. 2007). In this case, Davis does not challenge the validity of the

initial traffic stop. Rather, he asserts the troopers lacked reasonable suspicion to

detain him beyond the scope and duration of the traffic stop.

During a traffic stop, “[a] seizure that is justified solely by the interest in

issuing a warning ticket to the driver can become unlawful if it is prolonged

beyond the time reasonably required to complete that mission.” Illinois v.

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Caballes, 543 U.S. 405, 407 (2005). At a stop an officer may “request a driver’s

license, registration, and other required papers, run requisite computer checks,

and issue citations or warnings as appropriate.” United States v. Rosborough, 366

F.3d 1145, 1148 (10th Cir. 2004). An officer may also question the driver “about

matters both related and unrelated to the purpose of the stop, as long as those

questions do not prolong the length of the detention.” United States v. Karam,

496 F.3d 1157, 1161 (10th Cir. 2007).

Once an officer has returned the driver’s documents “further questioning

amounts to an unlawful detention only if the driver has objectively reasonable

cause to believe that he is not free to leave.” United States v. Chavira, 467 F.3d

1286, 1290 (10th Cir. 2006). Factors that may support a driver’s reasonable

belief include “the presence of more than one officer, the display of a weapon, the

physical touching of the detainee, the officer’s use of a commanding tone of

voice, and the officer’s use of intimidating body language.” Id. “An officer is

not required to inform a suspect that she does not have to respond to his

questioning or that she is free to leave.” United States v. Bradford, 423 F.3d

1149, 1158 (10th Cir. 2005).

But an officer may detain a driver beyond the scope of the traffic stop if,

during the stop, “(1) the officer develops an objectively reasonable and articulable

suspicion that the driver is engaged in some illegal activity, or (2) the initial

detention becomes a consensual encounter.” Rosborough, 366 F.3d at 1148

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(quotation and alterations omitted). To determine whether an officer has a

reasonable suspicion to detain beyond the scope of the traffic stop, we “must look

at the totality of the circumstances of each case to see whether the detaining

officer has a particularized and objective basis for suspecting legal wrongdoing.”

United States v. Arvizu, 534 U.S. 266, 273 (2002) (quotations omitted). “This

process allows officers to draw on their own experience and specialized training

to make inferences from and deductions about the cumulative information

available to them that might well elude an untrained person.” Id. (quotation

omitted). While reasonable suspicion cannot be based upon a “mere hunch,” it

also “need not rise to the level required for probable cause, and it falls

considerably short of satisfying a preponderance of the evidence standard.” Id. at

274.

Our cases have identified a number of factors that may contribute to an

officer’s reasonable suspicion of illegal activity justifying detention. One factor

is an individual’s internally inconsistent statements or the inconsistencies between

a passenger and driver’s statements regarding travel plans. See United States v.

Simpson, 609 F.3d 1140, 1148 (10th Cir. 2010) (“Implausible travel plans can

contribute to reasonable suspicion.”); United States v. White, 584 F.3d 935, 951

(10th Cir. 2009) (“We have noted numerous times that implausible travel plans

can form a basis for reasonable suspicion.”); United States v. Hunnicutt, 135 F.3d

1345, 1349 (10th Cir. 1998) (“Among those factors that have justified further

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questioning are . . . inconsistent statements about destination.”); United States v.

Kopp, 45 F.3d 1450, 1454 (10th Cir. 1995) (finding reasonable suspicion justified

continued detention because driver’s explanation of travel plans were neither

plausible nor consistent with the passenger’s explanation, and the passenger’s

responses to questions were internally inconsistent).

An individual’s nervousness during a traffic stop is another fact that may

contribute marginally to a reasonable suspicion of illegal activity. Our cases

acknowledge if during a traffic stop for a routine violation an individual “shows

unusual signs of nervousness, this may be considered as part of the totality of

circumstances a reasonable law enforcement officer would analyze in

investigating possible crimes.” United States v. Santos, 403 F.3d 1120, 1127

(10th Cir. 2005). However, nervousness is a common, natural reaction during a

traffic stop, and thus “[o]nly extraordinary and prolonged nervousness can weigh

significantly in the assessment of reasonable suspicion.” Id.

A previous criminal history may also weigh in favor of an officer’s

reasonable suspicion of illegal activity. An individual’s criminal record, by itself,

is not a sufficient basis for reasonable suspicion. See id. at 1132 (“Even people

with prior convictions retain Fourth Amendment rights; they are not roving

targets for warrantless searches.”). But, again, criminal history “is one factor that

may justify further detention and that may cast a suspicious light on other

seemingly innocent behavior.” Simpson, 609 F.3d at 1147; see also Santos, 403

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F.3d at 1132 (“[I]n conjunction with other factors, criminal history contributes

powerfully to the reasonable suspicion calculus.”).

Finally, our cases note drug traffickers often use rental vehicles to transport

narcotics. See United States v. Contreras, 506 F.3d 1031, 1036 (10th Cir. 2007)

(examining the basis for reasonable suspicion and “credit[ing] the idea that drug

couriers often use third-party rental cars.”); United States v. Williams, 271 F.3d

1262, 1270 (10th Cir. 2001) (“The officer knew from his training and experience

that drug couriers often use third-party rental cars.”).

Applying these principles to the facts here, we conclude the troopers had

reasonable suspicion to detain Davis for the purpose of a canine sniff.

The troopers’ reasonable suspicion of illegal activity was based upon

Davis’s and Wynn’s inconsistent travel plans, their abnormal nervousness, and

Davis’s criminal history. First, when questioned, Davis and Wynn provided

conflicting accounts of their travel plans and the origin of the rental car. Wynn

claimed they were coming from Las Vegas, but the car rental agreement showed it

was rented in Los Angeles. Davis stated he rented the car in Harbor City, but the

rental car agreement listed the car as rented at LAX. Davis’s and Wynn’s

explanations of their travel plans were inconsistent with each other and conflicted

with the rental car paperwork.

Additionally, Davis and Wynn were abnormally nervous when questioned

during the traffic stop. After his initial conversation with Wynn, the trooper

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radioed to the second trooper and commented that Wynn “was about to jump out

of his pants, he was so nervous.” R., Vol. 3, Doc. 191 at 84. The trooper

testified at the suppression hearing that “Mr. Wynn was so nervous that he was

just shaking so bad, he was really, really nervous.” Id. at 13.

Davis appeared agitated and nervous when questioned about the location of

the car rental. We agree with the district court’s assessment that during his

conversation with the trooper, Davis was “overreacting . . . about where they had

been” and “seemed to want to jump into the conversation and respond to

questions even before the question had been asked.” Id. at 85. Both Davis and

Wynn exhibited prolonged and extraordinary nervousness during the traffic stop.

Next, during the criminal history check, the trooper learned Davis had a

prior history of drug-trafficking. In addition to the inconsistent travel plans and

abnormal nervousness, Davis’s criminal history contributed to the reasonable

suspicion of illegal activity, especially for the limited purpose of a canine sniff of

the vehicle, or at worst, a brief additional detention to ask for consent. 2

We find these factors, collectively, supported the troopers’ reasonable

suspicion Davis was involved in illegal activity and permitted the detention of

Davis beyond the scope and duration of the traffic stop.

2
Although not mentioned by the district court, the fact the car was rented
could contribute to the totality of circumstances that it may be involved in drug-
trafficking.

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 3. Consent to Search the Car

Davis also contends the district court clearly erred by finding he voluntarily

consented to the search of the car.

“[T]he Fourth Amendment unquestionably prohibits the search of a

vehicle’s interior unless law enforcement officials receive consent, have a

warrant, or otherwise establish probable cause to support the search.” United

States v. Forbes, 528 F.3d 1273, 1277–78 (10th Cir. 2008). We have held “a

vehicle may be searched if a person in control of the vehicle has given his

voluntary consent to the search.” United States v. Zubia-Melendez, 263 F.3d

1155, 1162 (10th Cir. 2001).

Whether consent is voluntary is “determined by the totality of the

circumstances and reviewed for clear error.” Id. We apply a two-part test: (1)

“the government must proffer clear and positive testimony that consent was

unequivocal and specific and freely given,” and (2) “the government must prove

that this consent was given without implied or express duress or coercion.” Id.

(quotation omitted). Additionally, an individual may voluntarily consent to a

search even though he is detained. See United States v. Dozal, 173 F.3d 787, 796

(10th Cir. 1999) (“Supreme Court and Tenth Circuit precedent establishes that

consent to search may be voluntary even though the consenting party is being

detained at the time consent is given.”) (brackets and quotations omitted).

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 Based on the record here, we conclude the district court did not clearly err

in finding Davis provided voluntary consent to search the vehicle. Initially, Davis

refused consent to search the vehicle. The trooper requested a canine unit and

Davis had the option of waiting for the canine unit to arrive or consenting to a

search of the vehicle. After Davis asked how long it would take for the canine

unit to arrive compared with consenting to a search, he consented to a search of

the vehicle. Even after receiving consent, the trooper inquired to confirm Davis

was in fact consenting to a search of the vehicle, and Davis confirmed his

consent.

In these circumstances, the district court did not clearly err in finding

Davis’s consent was voluntary and not obtained through coercion or force.

B. 21 U.S.C. § 851 Information of Prior Convictions

Next, Davis argues the district court erred by imposing a twenty-year

mandatory minimum sentence pursuant to 21 U.S.C. § 851 because the

government failed to give him adequate notice of the prior conviction it intended

to use for an enhanced sentence. He contends he was given the wrong case

number for the qualifying conviction in its Information of Prior Convictions and

therefore lacked proper notice of the prior conviction. We reject this argument.

“We review de novo the legality of a sentence, including the adequacy of

an information filed under 21 U.S.C. § 851.” United States v. Hood, 615 F.3d

1293, 1302 (10th Cir. 2010). Ordinarily, we conduct a harmless error analysis of

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non-clerical errors in an information. Id. (“Even if we were to conclude that the

error in the Enhancement Information was more than a correctable clerical error

(i.e., non-clerical), we still would be free to conclude that such an error was

harmless.”). But in district court, Davis failed to object to the information based

upon the incorrect case number, and thus we review his sentence for plain error.

See F ED . R. C RIM . P. 52(b) (“A plain error that affects substantial rights may be

considered even though it was not brought to the court’s attention.”).

Under plain error review,

[B]efore an appellate court can correct an error not raised at trial,
there must be (1) error, (2) that is plain, and (3) that affects
substantial rights. If all three conditions are met, an appellate court
may then exercise its discretion to notice a forfeited error, but only if
(4) the error seriously affects the fairness, integrity, or public
reputation of judicial proceedings.

United States v. Balderama-Iribe, 490 F.3d 1199, 1203–04 (10th Cir. 2007).

Davis bears the burden of demonstrating plain error. Id.

1. The Government’s Information of Prior Convictions

The day before Davis’s jury trial began, the government filed an

Information of Prior Convictions pursuant to 21 U.S.C. § 851 to notify Davis that,

in the event he was convicted, it would seek a sentence of up to life

imprisonment. The information listed two prior qualifying convictions for

“Andre Davis”:

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 a. In the State of Indiana, Superior Criminal Court, Cause No.
49G049012CF14678, the defendant was convicted of dealing in
cocaine or narcotics and possession of cocaine; and
b. In the State of Indiana, Superior Criminal Court, Cause No.
49G200402FA018946 the defendant was convicted of dealing in
cocaine and possession of cocaine.

R., Vol. 1, Doc. 119 at 2. The second noticed conviction, 49G200402FA018946,

did not qualify as a prior conviction because it occurred in 2004, after Davis’s

criminal conduct in this case. Thus, the only qualifying conviction listed in the

information was the first noticed conviction, 49G049012CF14678. The problem

with this notice is that the case number referenced a crime committed by “Andre

Davis,” but not the Andre Davis on trial in this case.

The case went to trial and Davis was convicted. But as the government

now concedes, the case number in the information for this prior conviction was

incorrect and identified a crime committed by a different Andre Davis.

After trial and before sentencing, the government prepared a Presentence

Investigation Report (PSR). The PSR contained the correct case number,

49G059101CF005385, for Davis’s prior conviction for dealing cocaine in

Indiana. 3 In his objections to the PSR, Davis “d[id] not contest that he was

convicted of Dealing in Cocaine in 1993 for a 1991 offense,” but he challenged

its use for enhancement of his sentence because he asserted the matter was still

under post-conviction review in Indiana. R., Vol. 1, Doc. 161 at 1. At his

3
The PSR also listed the 2004 conviction for dealing cocaine and
possession of cocaine with the proper case number.

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sentencing hearing, Davis’s counsel again did not contest Davis was convicted in

1993 for a 1991 offense. His counsel also acknowledged his argument regarding

post-conviction relief was related to a 2004 case, which the government did not

rely upon for enhancement.

At the sentencing hearing, Davis’s counsel objected to the adequacy of the

§ 851 information on the basis it specified two prior convictions that would be

used to enhance Davis’s minimum possible sentence to life imprisonment.

Counsel noted only one of the convictions was a qualifying prior conviction,

which would enhance his minimum possible sentence to only twenty years. He

argued Davis never received proper notice under § 851 that he was facing only

the lesser twenty-year minimum sentence, based upon one prior conviction, rather

than life imprisonment, based upon two prior convictions.

2. 21 U.S.C. § 851 Information

Davis contends the incorrect information cannot be used to enhance his

sentence. Under § 851:

No person who stands convicted of an offense under this part shall be
sentenced to increased punishment by reason of one or more prior
convictions, unless before trial, or before entry of a plea of guilty,
the United States attorney files an information with the court (and
serves a copy of such information on the person or counsel for the
person) stating in writing the previous convictions to be relied upon.
. . . Clerical mistakes in the information may be amended at any time
prior to the pronouncement of sentence.

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21 U.S.C. § 851(a)(1). A district court may not impose an enhanced sentence

based on a defendant’s prior conviction unless the government files an

information in compliance with § 851(a). 4 United States v. LaBonte, 520 U.S.

751, 754 n.1, 759–60 (1997).

Due process requires a defendant “receive reasonable notice and

opportunity to be heard relative to the recidivist charge even if due process does

not require that notice be given prior to trial on the substantive offense.” United

States v. Gonzales-Lerma, 14 F.3d 1479, 1485 (10th Cir. 1994) (quoting Oyler v.

Boyles, 368 U.S. 448, 452 (1962)), overruled on other grounds by United States v.

Botero-Ospina, 71 F.3d 783, 787 (10th Cir. 1995). Congress enacted § 851 in

order to fulfill this due process requirement, but did not “specify the particular

form which notice of enhancement must take.” Id. The information of prior

convictions is intended to provide a defendant “an opportunity to establish either

that he had not been convicted of the crimes the government relies upon for the

sentence enhancement or that the convictions do not qualify as the type satisfying

the enhancement requirements.” United States v. Willis, 102 F.3d 1078, 1085

(10th Cir. 1996).

4
Failure to file an information under § 851 does not deprive the district
court of jurisdiction to impose a sentence. See Aplt.’s Br. at 23. In United States
v. Flowers, we clarified that “[s]ection 851(a)(1) directs the district court in
imposing a sentence, but it does not limit the district court’s jurisdiction over
sentencing.” 464 F.3d 1127, 1130 (10th Cir. 2006). Thus, in Flowers, we
“expressly overrule[d] our previous decisions that have improperly designated
§ 851(a)’s requirements as jurisdictional.” Id.

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 The notice supplied to Davis contained incorrect information. But errors in

an information regarding a prior conviction do not necessarily render the

information defective under § 851. Clerical errors simply may be corrected

pursuant to § 851(a)(1). 21 U.S.C. § 851(a)(1) (“Clerical mistakes in the

information may be amended at any time prior to the pronouncement of

sentence.”). Even a non-clerical error is not automatically fatal to an information,

but “we nonetheless may conduct an inquiry into whether any such error was

prejudicial.” Hood, 615 F.3d at 1303. An information is defective under § 851

when a defendant suffers prejudice that deprives him of the notice and

opportunity to challenge a prior conviction that is subsequently used to enhance

his sentence.

We have previously considered errors in a § 851 information. In one

instructive example, we reviewed an information containing the correct offense

and location, but the incorrect date of conviction. Gonzales-Lerma, 14 F.3d at

1485. In that case, the defendant objected to the information because it contained

the incorrect date, failed to include a case number, and did not specify the place

of conviction other than the state. We held the incorrect date of conviction was a

“clerical mistake” that could be corrected pursuant to § 851(a)(1). Id. at 1486.

But we also concluded the information provided sufficient notice to the defendant

regarding his prior conviction even without the case number and specific place of

conviction. Id. That was true especially where defense counsel had been “invited

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. . . to explore the contents of the judgment” and the defendant had not challenged

the conviction but rather the timing and specificity of the information. Id.

Recently, in United States v. Hood, we considered an information listing

the incorrect court and location of conviction. 615 F.3d at 1297. Despite these

errors, and even if non-clerical, the information contained other, correct

identifying information such as the proper case number. The defendant had

received a copy of both the relevant police report for the conviction and the PSR

recounting defendant’s criminal history. In his objections to the PSR, the

defendant admitted actual knowledge of a conviction associated with his name

that had the correct court and location as well as the same details as those found

in the information. At the sentencing hearing, defense counsel expressly declined

to object on the grounds the defendant was not the person subject to the

conviction listed in the information. We concluded the defendant “had sufficient

notice of the prior conviction upon which the government sought enhancement as

well as an opportunity to be heard” and the errors in the information “would be at

most harmless error.” Id. at 1304.

Based on these cases, the government’s information supplied in this case

provided adequate notice, if barely. The incorrect case number might have been

misleading because it directed Davis to a conviction of a different Andre Davis

rather than merely omitting identifying information. But Davis never contested

the information on this ground. While we do not condone the information here,

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Davis still must demonstrate he suffered prejudice as a result of the error. This

he cannot do, for several reasons.

First, Davis received notice he faced a sentencing enhancement based upon

his prior 1993 drug conviction and had the opportunity to challenge this prior

conviction in the district court before sentencing. Davis concedes, of course, that

he committed a drug offense in Indiana in 1991. In fact, in Davis’s second

objections to the PSR he stated he would not contest that he was convicted in

Indiana in 1993 for a 1991 drug offense. At the sentencing hearing, moreover,

Davis’s counsel admitted his objection to the convictions was on the grounds one

of them was on post-conviction review in Indiana, which related to Davis’s 2004

conviction and not the 1993 conviction. These statements demonstrate that, at the

time Davis filed his sentencing objections, he “was aware of facts that would have

allowed him to reasonably infer that the conviction of which he had knowledge

was the same conviction listed in the [information], notwithstanding its flawed

description there.” Hood, 615 F.3d at 1303.

Additionally, Davis had four separate opportunities to object to the

sufficiency of the notice of the conviction: (1) when the information was filed, (2)

in Davis’s first objections to the PSR, (3) in Davis’s second objections to the

PSR, and (4) at the sentencing hearing. Yet, at each point he failed to object

because of the incorrect case number.

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 During the sentencing hearing Davis did object to the government’s

information on the grounds notice in the information was deficient, but not based

upon the incorrect case number. Davis objected on the grounds the information

stated he was subject to a mandatory life sentence when, in fact, he was only

subject to a mandatory twenty-year sentence. The district court overruled this

objection finding the information placed Davis on notice that he faced an

enhanced sentence.

For these reasons, we find Davis has not overcome the hurdles of plain

error review. Even if we assumed error which was plain, he cannot show

prejudice because of the error in the government’s information or that it is likely

he would have received a different sentence if the error had been pointed out to

the district court.

C. Rule 404(b) Evidence

Davis’s final argument is the district court erred when it admitted evidence

of Davis’s drug arrest in Indiana pursuant to Federal Rule of Evidence 404(b)

because it was not given for a proper purpose and the evidence’s prejudice

outweighed its probative value.

We review a district court’s admission of evidence under Rule 404(b) for

an abuse of discretion. United States v. Mares, 441 F.3d 1152, 1156 (10th Cir.

2006). We will not reverse the district court if its decision “falls within the

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bounds of permissible choice in the circumstances and is not arbitrary, capricious

or whimsical.” Id. (quotations and alteration omitted).

1. Davis’s Indiana Arrest

In February 2004, Davis was arrested in Indiana for cocaine possession. At

the time of the arrest, Davis was found in a house during the execution of a search

warrant, and in his pocket were keys to a Budget Rental car and $5,811 cash. The

rental car contained a canvas bag containing just under 500 grams of cocaine. In

Davis’s wallet, the police found two Budget Rental car receipts. One was for a

car rented in the name of Eddy L. Scott. The other was for a car rented in the

name of Robert Day and listed Davis’s co-defendant in this case, Kericka

Kirkland, as an additional driver. This second receipt was for the rental

car—referenced during the traffic stop in this case—which Davis had claimed was

driven out to California and stolen in Harbor City.

2. Rule 404(b)

Federal Rule of Evidence 404(b) provides:

Evidence of other crimes, wrongs or acts is not admissible 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 . . . intent, . . . plan, knowledge, . . . or absence of
mistake.

F ED . R. E VID . 404(b). We consider a four-factor test when determining the

admissibility of evidence under Rule 404(b). The test requires that:

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 (1) the evidence must be offered for a proper purpose; (2) the
evidence must be relevant; (3) the trial court must make a Rule 403
determination of whether the probative value of the similar acts is
substantially outweighed by its potential for unfair prejudice; and (4)
pursuant to F ED . R. E VID . 105, the trial court shall, upon request,
instruct the jury that evidence of similar acts is to be considered only
for the proper purpose for which it was admitted.

United States v. Zamora, 222 F.3d 756, 762 (10th Cir. 2000) (quotation omitted);

see Huddleston v. United States, 485 U.S. 681, 691–92 (1988) (discussing four

sources that serve as “the protection against . . . unfair prejudice” when admitting

evidence under Rule 404(b)); United States v. Zamora, 222 F.3d 756, 762 (10th

Cir. 2000) (“To determine whether Rule 404(b) evidence was properly admitted

we look to the four-part test set out by the Supreme Court in Huddleston v. United

States.”).

Rule 404(b) admissibility is a permissive standard and “if the other act

evidence is relevant and tends to prove a material fact other than the defendant’s

criminal disposition, it is offered for a proper purpose under Rule 404(b) and may

be excluded only under Rule 403.” United States v. Parker, 553 F.3d 1309, 1314

(10th Cir. 2009) (quotation omitted). Evidence is offered for a proper purpose if

it is utilized for any of the “other purposes” enumerated in Rule 404(b). Relevant

evidence tends to make a necessary element of an offense more or less probable.

See F ED . R. E VID . 401. The balancing test in Rule 403 determines whether the

probative value of the evidence is substantially outweighed by the danger of

unfair prejudice. See United States v. Burgess, 576 F.3d 1078, 1099 (10th Cir.

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2009) (“To be inadmissible under rule 403, evidence must do more than damage

the Defendant’s position at trial, it must make a conviction more likely because it

provokes an emotional response in the jury or otherwise tends to affect adversely

the jury’s attitude toward the defendant wholly apart from its judgment as to his

guilt or innocense [sic] of the crime charged.”) (quotations omitted). A limiting

instruction cautions the jury that the Rule 404(b) evidence should be considered

only for the purposes for which it was admitted and not as evidence of the

defendant’s character or propensity to commit an offense.

Evidence admitted under Rule 404(b) may relate to conduct occurring

either before or after the charged offense. We have consistently “recognized the

probative value of uncharged acts to show motive, intent, and knowledge, whether

the acts involved previous conduct or conduct subsequent to the charged offense,

as long as the uncharged acts are similar to the charged crime and sufficiently

close in time.” Zamora, 222 F.3d at 762; see Mares, 441 F.3d at 1157 (“It is

settled in the Tenth Circuit that evidence of ‘other crimes, wrongs, or acts’ may

arise from conduct that occurs after the charged offense.”) (emphasis in original).

Similarity between subsequent conduct and the charged offense is

demonstrated through “physical similarity of the acts or through the defendant’s

indulging himself in the same state of mind in the perpetration of both the

extrinsic offense and charged offenses.” Zamora, 222 F.3d at 762 (quotation

omitted). We have identified several non-exclusive factors to consider when

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assessing similarity: “(1) whether the acts occurred closely in time; (2)

geographical proximity; (3) whether the charged offense and the other acts share

similar physical elements; and (4) whether the charged offense and the other acts

are part of a common scheme.” Mares, 441 F.3d at 1158 (citations omitted).

Applying these principles here, we find the district court properly admitted

the evidence under Rule 404(b).

Davis argues the evidence should not have been admitted for three reasons:

the government did not articulate the specific purpose for admission, the evidence

was prejudicial, and there was no contemporaneous limiting instruction. 5 In turn,

the government contends the evidence was offered for three of the purposes

enumerated in Rule 404(b): (1) Davis’s intent to distribute cocaine found in a car

rented by someone else with two additional passengers, (2) his knowledge of

5
Davis also argues the government failed to give proper notice of its intent
to use Rule 404(b) evidence at trial. The district court’s general scheduling order
specified the government shall disclose this information 30 days prior to trial.
Davis asserts no disclosure was made until the day of trial during a hearing on
Davis’s motion in limine to exclude Rule 404(b) evidence. The government did
not address this issue in its briefing to this court. However, as Davis
acknowledges, no objection was made before the district court regarding notice,
and the district court held a hearing to determine whether the Rule 404(b)
evidence should be allowed at trial. Also, it appears the information regarding
the Rule 404(b) evidence was available at the U.S. Attorney’s office for Davis’s
counsel to review, but he did not avail himself of this opportunity. Because this
issue was not raised before the district court and Davis had an opportunity to be
heard on the issue during the hearing on his motion in limine, we find the district
court did not err in admitting the Rule 404(b) evidence even if the government
failed to comply with the notice requirements of the district court’s general
scheduling order.

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cocaine found in a bag in a rental car, and (3) the cocaine’s presence was not due

to an accident or mistake. The government also argues the evidence’s probative

value was not substantially outweighed by any prejudice and Davis never

requested a contemporaneous limiting instruction.

The first factor when considering the admissibility of Rule 404(b) evidence

—proper purpose—is met here. At trial, Davis argued the bag containing cocaine

found in the vehicle should not be connected to him because there was nothing to

indicate the bag belonged to him. He also argued he had no knowledge of the

bag’s contents and had no knowledge of a drug conspiracy. The Rule 404(b)

evidence tends to show Davis knowingly participated in a drug conspiracy and the

cocaine’s presence in the vehicle was not a result of a mistake or accident.

The second factor—relevance—is also met because the subsequent act is

similar to the crime charged in this case. Davis was arrested in Indiana with keys

to a rental car, which was rented in another person’s name and contained a bag of

cocaine. The Rule 404(b) evidence tends to show it was more likely than not, in

this case, (1) Davis knew cocaine was in the bag, (2) the bag’s presence was no

mistake or accident, and (3) Davis was a member of the drug conspiracy that

transported cocaine in rental cars. Also, the subsequent act occurred only 14

months after the arrest in this case.

The third factor requires us to determine whether the danger of unfair

prejudice from the evidence substantially outweighed its probative value. By

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definition, any evidence that would undermine Davis’s defense is prejudicial. But

we find no reason that any danger of unfair prejudice created by the evidence

substantially outweighed its probative value, nor has Davis provided one.

The final factor provides a limiting instruction should be given to the jury

regarding the 404(b) evidence upon defendant’s request. Davis did not request a

contemporaneous limiting instruction, but did propose a limiting instruction that

the district court included in its instructions to the jury before closing arguments.

The limiting instruction explained to the jury the Rule 404(b) evidence should be

considered only as it relates to Davis’s intent, knowledge, and absence of mistake

or accident. The court instructed that, though Davis may have committed a

subsequent act similar to that charged, it did not mean he necessarily committed

the act charged in the case.

In sum, the district court did not abuse its discretion and properly admitted

the evidence under Rule 404(b).

III. Conclusion

For the foregoing reasons, we AFFIRM Davis’s conviction and sentence.

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