United States v. Larry Carpenter

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 01-2728
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Northern
* District of Iowa
Larry Davis Carpenter, *
* [UNPUBLISHED]
Appellant. *
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Submitted: January 17, 2002
Filed: January 29, 2002
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Before McMILLIAN, FAGG, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
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PER CURIAM.
Larry Davis Carpenter appeals from the final judgment entered in the District
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Court for the Northern District of Iowa after a jury found him guilty of possessing
with intent to distribute over 50 grams of a mixture or substance containing
methamphetamine, in violation of 21 U.S.C. § 841. The district court sentenced
Carpenter to 70 months imprisonment and four years supervised release. On appeal,
Carpenter’s counsel has filed a brief and moved to withdraw pursuant to Anders v.
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The Honorable Mark W. Bennett, Chief Judge, United States District Court
for the Northern District of Iowa.
California, 386 U.S. 738 (1967), contending that the district court should not have
admitted evidence of Carpenter’s prior conviction for possessing marijuana and
cocaine. For the reasons discussed below, we affirm the judgment of the district
court.
Because Carpenter failed to object at trial when the Fed. R. Evid. 404(b)
evidence was admitted, our review is for plain error, see United States v. Blum, 65
F.3d 1436, 1439, 1443 (8th Cir. 1995), cert. denied, 516 U.S. 1097 (1996), and we
find none. Carpenter’s possession of the marijuana and cocaine was relevant to the
material issue of knowing possession of and intent to distribute the subject
methamphetamine, which was found hidden under Carpenter’s bathtub. Further, his
possession of the marijuana and cocaine occurred simultaneously with the conduct
underlying the instant offense, the possession was proved by a preponderance of the
evidence (his guilty plea in state court to possessing the marijuana and cocaine), and
the evidence was not more prejudicial than probative. See United States v. Hardy,
224 F.3d 752, 757 (8th Cir. 2000) (“evidence of prior possession of drugs, even in an
amount consistent only with personal use, is admissible to show such things as
knowledge and intent of a defendant charged with a crime in which intent to
distribute drugs is an element”) (quoted case omitted); United States v. Benitez-
Meraz, 161 F.3d 1163, 1165-66 (8th Cir. 1998) (Rule 404(b) evidence that defendant
possessed and distributed cocaine was directly relevant to issue of defendant’s
knowledge and intent to distribute methamphetamine, because cocaine transactions
took place during same time period as alleged methamphetamine transactions and two
independent witnesses testified to witnessing cocaine transactions).
After review of counsel’s Anders brief, along with our independent review of
the record in accordance with Penson v. Ohio, 488 U.S. 75, 80 (1988), we find no
nonfrivolous issues. Accordingly, we grant counsel’s motion to withdraw, and we
affirm.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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