United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT December 29, 2005

Charles R. Fulbruge III Clerk No. 04-50101 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROBERT TAPIA, JR.,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas, Del Rio USDC No. DR-03-CR-373-1-AML --------------------

Before REAVLEY, DAVIS and PRADO, Circuit Judges.

PER CURIAM:*

Robert Tapia, Jr., appeals his jury-trial conviction for

possession with intent to distribute marijuana and importation of

marijuana. He first argues that the district court abused its

discretion when it admitted evidence of a prior drug trafficking

conviction.

The district court’s evidentiary ruling with respect to

Tapia’s 1995 drug trafficking conviction was in accord with FED.

R. EVID. 404(b), which provides that extrinsic evidence of other

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 04-50101 -2-

crimes, wrongs, or acts is not admissible to prove the character

of a person to show action in conformity therewith, but is

admissible for other purposes, such as intent. See FED. R. EVID.

404(b); United States v. Beechum,

(5th Cir.

1978) (en banc). Also, the district court diminished the

prejudicial effect of the FED. R. EVID. 404(b) evidence by giving

a limiting instruction to the jury regarding the proper use of

the evidence. United States v. Taylor,

(5th

Cir. 2000). The district court therefore did not abuse its

discretion with reference to the challenged evidentiary ruling.

United States v. Buchanan,

(5th Cir. 1995).

Tapia avers next that the evidence was insufficient on all

counts of conviction because the Government failed to establish

that he had knowledge of the marijuana secreted in the spare tire

of the vehicle that he was driving. The argument fails.

Viewing the evidence in the light most favorable to the

prosecution, there was ample circumstantial evidence of guilty

knowledge. See United States v. Mendoza,

(5th

Cir. 2000). Tapia was the driver of a vehicle that contained a

spare tire in which 32 packages containing approximately 15

kilograms of marijuana were secreted. On the basis of Tapia’s

implausible explanation, lack of nervousness, and the large

amount of marijuana found, there was more than sufficient

evidence to support an inference by the jury that Tapia knew the

spare tire contained marijuana. See United States v. Ortega No. 04-50101 -3-

Reyna,

(5th Cir. 1998); United States v.

Villarreal,

(5th Cir. 2003); United States v.

Resio-Trejo,

(5th Cir. 1995). The judgment of

the district court is AFFIRMED.