United States v. Stokes

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 4, 2007
Charles R. Fulbruge III
Clerk
No. 06-40816
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FINESS EDWARD STOKES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:05-CR-55-ALL
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Before DeMOSS, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
Finess Edward Stokes appeals his conviction for being a
felon in possession of firearms, in violation of 18 U.S.C.
§ 922(g), and his resulting 188-month sentence. Stokes renews
his argument that the admission of evidence regarding his
extrinsic acts, specifically, his possession of firearms on
March 3, 2005, two weeks after the instant offense, was error
under FED. R. EVID. 403 and 404(b).
This court reviews rulings admitting evidence under Rule
404(b) under a heightened abuse-of-discretion standard. United
*
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this opinion should not be published and is not precedent except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.
No. 06-40816
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States v. Buchanan, 70 F.3d 818, 831 (5th Cir. 1995). Because
Stokes pleaded not guilty and, contrary to his assertion on
appeal, argued at trial that he did not knowingly possess the
firearm, Stokes’s intent to commit the instant offense was at
issue. See United States v. Broussard, 80 F.3d 1025, 1040 (5th
Cir. 1996). As the district court determined, the current
offense and the March 3, 2005, offenses were the same and
required the same intent; the evidence of Stokes’s firearms
possession on March 3 was thus relevant to show his knowledge
that the guns were in the car he drove on February 19, a disputed
issue in the case. See United States v. Fuller, 453 F.3d 274,
277 (5th Cir. 2006); United States v. Beechum, 582 F.2d 898, 913
(5th Cir. 1978) (en banc).
Stokes’s argument that the extrinsic-acts evidence was
unnecessarily cumulative given the testimony by William Archer
directly linking him to the firearms in the instant case is not
well taken. As the district court found, there were credibility
issues with Archer’s testimony. Moreover, any prejudice arising
from the admission of the evidence regarding Stokes’s March 3
firearms possession was cured by the district court’s limiting
instruction. See United States v. Broussard, 80 F.3d 1025, 1040
(5th Cir. 1996). Consequently, the district court did not abuse
its discretion in admitting the evidence.
Stokes next contends, for the first time on appeal, that
trial counsel was ineffective in failing to object to sentencing
No. 06-40816
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enhancements assessed him in paragraphs 21 and 22 of the
presentence report. Because the argument is raised exclusively
under the rubric of an ineffective-assistance claim, and because
the district court record is undeveloped regarding counsel’s
performance, this court will not consider the claim. See United
States v. Miller, 406 F.3d 323, 335-36 (5th Cir.), cert. denied,
126 S. Ct. 207 (2005); see also Massaro v. United States,
538 U.S. 500, 503-04 (2003).
AFFIRMED.