IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 97-40001

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

NATHAN MORRELL ROGERS,

Defendant - Appellant

_________________________________________________________________

Appeal from the United States District Court for the Eastern District of Texas (1:96-CR-43) _________________________________________________________________ March 5, 1998 Before KING, BARKSDALE, and PARKER, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Nathan Morrell Rogers appeals his

conviction of five counts of possession of cocaine base with

intent to distribute. We affirm the district court’s judgment of

conviction and sentence.

Rogers first argues that the evidence presented at trial was

insufficient to support his conviction. When reviewing a jury

verdict to determine whether the evidence was sufficient to

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. support the conviction, we view the evidence and the inferences

to be drawn therefrom in the light most favorable to the verdict,

and we determine whether a rational trier of fact could have

found all the elements beyond a reasonable doubt. United States

v. Gonzales,

(5th Cir.), cert. denied,

(1996). Having reviewed the record, we conclude that the

evidence presented at trial was sufficient to support Rogers’s

conviction.

Rogers next contends that the district court abused its

discretion in admitting the testimony of Ronald Fuselier, who

testified that Rogers sent him to Houston to buy drugs on seven

or eight occasions. Rogers contends that Fuselier’s testimony

should not have been admitted because it was not relevant to any

issue other than his character; he therefore argues that the

testimony was inadmissible under Federal Rule of Evidence 404.

The government responds that the testimony was relevant to prove

that Rogers was involved in the distribution of cocaine base and

that he had the required knowledge and intent to distribute

drugs.

We review a district court’s decision to admit extrinsic

evidence for abuse of discretion. United States v. Coleman,

(5th Cir.), cert. denied,

(1996).

Under this standard, we accord substantial deference to a

district court’s informed judgment regarding the balancing

determination required by Rule 404(b), and “[w]e will reverse

2 only after a clear showing of prejudicial abuse of discretion.”

United States v. Moye,

(5th Cir. 1992). In order

to be admissible under Rule 404(b), extrinsic evidence must

satisfy the following two-part test: (1) the evidence must be

“relevant to an issue other than the defendant’s character” and

(2) the evidence “must possess probative value that is not

substantially outweighed by its undue prejudice and must meet the

other requirements of rule 403.” United States v. Beechum,

(5th Cir. 1978). This court has approved of the

admission of extrinsic evidence when offered to prove knowledge

and intent. See, e.g., United States v. Williams,

(5th Cir. 1990) (holding that evidence that a defendant

who was charged with transporting cocaine through the mail had

made nineteen other similar mailings was admissible under Rule

404(b) to show knowledge and intent). In this case, the district

court admitted Fuselier’s testimony for the limited purpose of

proving (1) Rogers’s intent to possess and distribute cocaine

base and (2) his knowledge of any common scheme or plan, and the

court gave the jury an instruction that clearly delineated the

limited purposes for which the testimony was admitted. Having

considered the testimony in the record and the arguments

presented in the briefs on appeal, we do not think that the

district court abused its discretion in admitting Fuselier’s

testimony for the limited purpose of establishing knowledge and

intent.

3 Finally, Rogers argues that the district court erred in

holding him responsible for 82.26 grams of cocaine base

discovered in Fuselier’s car during a traffic stop. This court

reviews a district court’s factual findings made for sentencing

purposes for clear error. United States v. Madison,

(5th Cir. 1993). We review the district court’s legal

interpretation of the Sentencing Guidelines de novo.

Section 1B1.3(a)(2) of the Sentencing Guidelines provides

that “all acts and omissions . . . that were part of the same

course of conduct or common scheme or plan as the offense of

conviction” may be used in the determination of the applicable

sentencing range. U.S. SENTENCING GUIDELINES MANUAL § 1B1.3(a)(2)

(1995). Relying on the Presentence Investigation Report’s (PSR)

determination that it belonged to Rogers, the district court

determined that the cocaine base found in Fuselier’s car

constituted such “relevant conduct.” “Particularly in drug

cases, this circuit has broadly defined what constitutes ‘the

same course of conduct’ or ‘common scheme or plan.’” United

States v. Bryant,

(5th Cir. 1993).

Rogers contends that Fuselier’s trial testimony, on which

the PSR relied, did not have the “sufficient indicia of

reliability to support its probable accuracy” that § 6A1.3 of the

Sentencing Guidelines requires of any information considered in

sentencing determinations. See U.S. SENTENCING GUIDELINES MANUAL

§ 6A1.3 (1995). “A [PSR] generally bears sufficient indicia of

4 reliability to be considered as evidence by the district court in

resolving disputed facts.” United States v. Valencia,

(5th Cir. 1995). When a defendant objects to the

consideration of conduct contained in the PSR, he bears the

burden of proving that the information is “materially untrue,

inaccurate or unreliable.” United States v. Angulo,

(5th Cir. 1991). Other than cross-examining him, Rogers

presented no evidence to refute Fuselier’s testimony that the

cocaine base belonged to Rogers. Thus, we cannot say that the

district court clearly erred in finding Fuselier’s testimony

regarding the 82.26 grams of cocaine base to be credible.

For the foregoing reasons, we AFFIRM the judgment of the

district court.

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