     Case: 11-11163     Document: 00512038440         Page: 1     Date Filed: 10/31/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         October 31, 2012
                                     No. 11-11163
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

QUENTIN BIVINS,

                                                  Defendant-Appellant


                   Appeals from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:10-CR-304-1


Before STEWART, Chief Judge, and KING and CLEMENT, Circuit Judges.
PER CURIAM:*
        Quentin Bivins appeals his conviction for being a felon in possession of a
firearm in violation of 18 U.S.C. §§ 922(g) and 924(e).
        Bivins argues that the district court erred by admitting evidence of his
prior convictions for unlawful carrying of a firearm and for deadly conduct
involving the discharge of a firearm. “Evidence of prior offenses is admissible if
it is (1) relevant to an issue other than the defendant’s character, and (2) the
incremental probative value of the evidence is not substantially outweighed by

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 11-11163

the danger of unfair prejudice to the defendant.” United States v. Pompa, 434
F.3d 800, 805 (5th Cir. 2005) (internal quotation marks and citation omitted); see
United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en banc);
FED. R. EVID. 403 & 404. We review a district court’s admission of such evidence
under a heightened abuse of discretion standard. United States v. McCall, 553
F.3d 821, 827 (5th Cir. 2008).
      Because Bivins pleaded not guilty, and part of his defense was that the
gun found in his house had been left there by his father, evidence of his past gun
possession was relevant to his knowledge and intent. See United States v.
Olguin, 643 F.3d 384, 390 (5th Cir. 2011), cert. denied 132 S. Ct. 439 (2011);
United States v. Williams, 620 F.3d 483, 489-91 (5th Cir. 2010). Past convictions
for possession of a firearm are highly probative of these issues. See Williams,
620 F.3d at 491. Although the similarity of the past offenses increases the risk
of prejudice, in light of the jury instructions regarding the permissible uses of
this evidence and the limited portion of the trial occupied by the discussion of
these convictions, any prejudice did not substantially outweigh their probative
value. Therefore, the district court did not abuse its discretion. McCall, 553
F.3d at 827.
      Also, Bivins challenges two statements by the Government during closing
arguments. In analyzing a claim of misconduct during closing argument, we
consider de novo whether the challenged remark was improper; if it was, we
then consider whether the remark “affected the substantial rights of the
defendant” under an abuse of discretion standard. United States v. Turner, 674
F.3d 420, 438-39 (5th Cir.) (internal quotation marks and footnote omitted),
cert. denied, 2012 WL 2863449 (Oct. 1, 2012) (No. 12-5168). We consider three
factors: (1) the magnitude of the remark’s prejudice; (2) any cautionary
instructions given; and (3) the strength of the evidence supporting the
conviction. Id. A defendant attempting to show that a remark affected his



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                                  No. 11-11163

substantial rights must meet a “high bar.” United States v. Ebron, 683 F.3d 105,
140 (5th Cir. 2012).
      During its rebuttal argument, the Government stated that bullets were
close to the gun; however, the evidence showed that the gun was unloaded and
that police did not see any ammunition. Although the district court sustained
Bivins’ objection and instructed the jury to disregard this statement, he argues
that the should have granted a mistrial. We review the denial of a mistrial for
an abuse of discretion. Turner, 674 F.3d at 438.
      Although we agree that the remark was improper, in light of the limited
prejudice resulting from this remark, the district court’s immediate instruction
that the jury should disregard the remark and that the arguments of counsel
were not evidence, we conclude that Bivins failed to meet the “high bar” to show
that his substantial rights were affected. See Ebron, 683 F.3d at 140; Turner,
674 F.3d at 439. Thus, the district court did not abuse its discretion by denying
his motion for a mistrial. See Turner, 674 F.3d at 438.
      Bivins next argues that the district court abused its discretion by
overruling his objection to another remark by the Government that it “would not
be surprised” if Bivins’ father had not seen the gun the two years. The district
court found that the Government was arguing a permissible inference from the
evidence. We agree that this was a permissible inference. See United States v.
Mendoza, 522 F.3d 482, 491 (5th Cir. 2008).
      Finally, Bivins argues that there was no proof that he knew that the gun
had moved in interstate commerce and that § 922(g) is a violation of Congress’s
commerce power. As he concedes, these arguments are foreclosed. See United
States v. Schmidt, 487 F.3d 253, 254 (5th Cir. 2007); United States v. Dancy, 861
F.2d 77, 81-82 (5th Cir. 1988); United States v. Rawls, 85 F.3d 240, 242 (5th Cir.
1996).
      AFFIRMED.



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