United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 7, 2005
Charles R. Fulbruge III
No. 04-51366 Clerk
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE LUIS ORONA-CASTILLO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:04-CR-170-ALL-H
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Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges
PER CURIAM:*
Jose Luis Orona-Castillo appeals his jury-trial conviction and
sentence for aiding and abetting the possession of marijuana with
intent to distribute and use of a person under the age of 18 in a
drug-trafficking offense. He first argues that the district court
erred when it admitted evidence of his 1998 conviction for
misprision of a felony. Orona-Castillo asserts that the evidence
was introduced to show his bad character and not to show identity,
intent, motive, or knowledge.
Because Orona-Castillo asserted that he was not involved in
the smuggling of marijuana, his intent was at issue and the
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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admission of evidence of extrinsic acts was therefore relevant to
intent. See United States v. Wilwright, 56 F.3d 586, 589 (5th Cir.
1995). As the prior arrest and the charged offense both involved
Orona-Castillo’s involvement with marijuana, the evidence was
relevant to an issue other than character. See United States v.
Gordon, 780 F.2d 1165, 1173 (5th Cir. 1986); United States v.
Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en banc).
The facts surrounding the prior arrest and the charged offense
were similar and involved the same intent. The district court
issued a limiting instruction regarding the evidence of the prior
arrest both at the time the evidence was presented and in the jury
charge. Additionally, the presentation of the evidence of the
prior arrest at trial did not occupy a significant portion of the
trial, the prior arrest was not a crime of greater magnitude than
the charged offense, and the jury is presumed to have followed the
district court’s instruction limiting its consideration of the
prior arrest. Accordingly, the prejudicial effect did not greatly
outweigh the probative value. See United States v. Hernandez-
Guevara, 162 F.3d 863, 872 (5th Cir. 1998); United States v. Scott,
48 F.3d 1389, 1396-97 (5th Cir. 1995); Beechum, 582 F.2d at 914.
The district court did not abuse its discretion by admitting the
evidence. See Beechum, 582 F.2d
at 911.
Orona-Castillo avers that the evidence was insufficient to
support his convictions on Counts One, Two, and Five. Viewing the
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evidence in the light most favorable to the Government, we conclude
that a rational juror could have found that Orona-Castillo aided
and abetted in the possession of the marijuana as alleged in Counts
One and Two and that he did knowingly use a person under the age of
18 to possess with intent to distribute 1000 kilograms or more of
marijuana as alleged in Count Five. See United States v. Greer,
137 F.3d 247, 249 (5th Cir. 1998); United States v. Lopez, 74 F.3d
575, 577 (5th Cir. 1996); 21 U.S.C. § 861(a)(1).
With regard to Count One, Joe Eric White testified that he
transported marijuana for Orona-Castillo. He testified that he was
asked by Orona-Castillo to purchase Suburbans which were
subsequently used to transport loads of marijuana. White testified
that on November 18, 2003, he and Orona-Castillo “scouted” the
route to be used to transport and drop off the load of marijuana.
White testified that Orona-Castillo told him what route to take in
order to circumvent the checkpoint. According to White, he and
Orona-Castillo made the plan to run the load of marijuana on
November 18, but that Orona-Castillo was “the organizer.” A total
of 615.950 pounds of marijuana was recovered from the pickup that
White was driving. Directing the procurement of load vehicles and
instructing White on how to avoid detection is conduct designed to
aid the venture or to assist the perpetrator of the crime.
With regard to Counts Two and Five, Benjamin Ornelas testified
that in the morning of December 6, 2003, he picked up a red and
gray Suburban which had been loaded with marijuana. The Suburban
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was one of the Suburbans that Orona-Castillo directed White to
purchase. Ornelas was transporting approximately 3,000 pounds of
marijuana. Juan Torres, who also transported marijuana for Orona-
Castillo, testified that Orona-Castillo had complained to him on
one occasion that he had lost a load of marijuana when a Suburban
flipped over while being driven by “a kid.” Ornelas was 17 years
old at the time.
Orona-Castillo contends that his sentence runs afoul of
United States v. Booker, 125 S. Ct. 738 (2005), because the
district court increased his offense level by four levels for his
leadership role. He avers that this fact was not found by the jury
or admitted by him. Orona-Castillo objected in the district court
on this ground and cited to the decision of Blakely v. Washington,
542 U.S. 296 (2004).
Where, as here, a defendant has preserved a Booker challenge
in the district court, “we will ordinarily vacate the sentence and
remand, unless we can say the error is harmless under Rule 52(a) of
the Federal Rules of Criminal Procedure.” See United States v.
Mares, 402 F.3d 511, 520 n.9 (5th Cir. 2005), petition for cert.
filed (Mar. 31, 2005) (No. 04-9517); United States v. Pineiro, 410
F.3d 282, 284 (5th Cir. 2005). As the Government does not argue,
much less show, that the district court would have imposed the same
sentence absent the Booker error, we vacate Orona-Castillo’s
sentence and remand for resentencing. Given the foregoing, Orona-
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Castillo’s conviction is AFFIRMED. His sentence is VACATED, and
the matter is REMANDED for resentencing.