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United States v. Carter ( 2006 )


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  •                                                                United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT                          October 30, 2006
Charles R. Fulbruge III
Clerk
No. 05-51266
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HORACE ABRAHAM CARTER,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
No. 6:05-CR-90-ALL
--------------------
Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Horace Carter appeals his jury conviction of, and sentence
for, distribution      of   cocaine    base   in   violation   of
    21 U.S.C. § 841
    (a)(1) and (b)(1)(C).            He argues that the district court
abused its discretion in admitting evidence of his two uncharged
sales of cocaine base and failed to conduct an on-the-record bal-
ancing test under FED. R. EVID. 403 as he had requested.                The evi-
*
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opinion should not be published and is not precedent except under the limited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.
dence of Carter’s two uncharged drug sales was admissible under
FED. R. EVID. 404(b) for the purpose of establishing his intent to
commit the charged offense. See United States v. Beechum,
    582 F.2d 898
    , 911 (5th Cir. 1978) (en banc).   A review of the circumstances
surrounding the uncharged offenses indicates that the probative
value of the evidence substantially outweighed the prejudicial ef-
fect.    See United States v. Chavez,
    119 F.3d 342
    , 346-47 (5th Cir.
1997); see also United States v. Peters,
    283 F.3d 300
    , 312-13 (5th
Cir. 2002).    Any prejudice was minimized by the limiting jury in-
struction.    See United States v. Taylor,
    210 F.3d 311
    , 318 (5th
Cir. 2000).    Carter has not shown that the district court abused
its discretion in admitting the evidence of two uncharged drug
sales.    See United States v. Hicks,
    389 F.3d 514
    , 522 (5th Cir.
2004), cert. denied,
    126 S. Ct. 1022
     (2006).
Although the court did not conduct an on-the-record balancing
test under rule 403 as Carter had requested, remand is not neces-
sary if the factors on which the probative value/prejudice evalua-
tion were made are readily apparent from the record, and there is
no substantial uncertainty about the correctness of the ruling.
See United States v. Fox,
    69 F.3d 15
    , 20 (5th Cir. 1995).   The fac-
tors on which the probative value/prejudice evaluation was made are
apparent from the arguments at the hearing on Carter’s motion in
limine.    See
    id.
    Carter contends that the district court erred in determining
that there was sufficient evidence to find that 31.18 grams of
2
cocaine base was relevant conduct for purposes of U.S.S.G. § 1B1.3.
The evidence presented at the sentencing hearing established by a
preponderance of the evidence that Carter dropped the bag contain-
ing 31.18 grams of cocaine base in the open field about two feet
from the driver’s side of his vehicle when the police officer ap-
proached.   Carter has not shown that the court clearly erred.   See
United States v. Bryant,
    991 F.2d 171
    , 177 (5th Cir. 1993).
AFFIRMED.
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