IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-20153
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SERGIO ALANIS, also known as
Sergio Alaniz, also known as La Paca,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-97-CR-153-9
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September 25, 2000
Before REAVLEY, DeMOSS and BENAVIDES, Circuit Judges.
PER CURIAM:*
Sergio Alanis appeals his jury-trial conviction for
conspiracy to distribute and possession with the intent to
distribute marihuana, 21 U.S.C. §§ 841(a)(1) & (b)(1)(A) (Count
1); continuing criminal enterprise (CCE)(Count 2), 21 U.S.C.
§ 848; aiding and abetting the possession with the intent to
distribute marihuana, 21 U.S.C. §§ 841(a)(1) & (b)(1)(B) and 2
U.S.C. § 2 (Counts 7 and 8); money laundering, 18 U.S.C. §§ 18
1956(a)(1)(A)(i) & (a)(1)(B)(i) (Count 9); and conspiracy to
*
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that this opinion should not be published and is not precedent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. 99-20153
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launder money, 18 U.S.C. § 1956(h) (Count 10).
Alanis avers that the CCE jury instructions were flawed and
that the district court erroneously told the jury that it could
consider Count 1, the lesser-included conspiracy count, as a
predicate offense. We have reviewed the CCE jury instructions
and find no plain error. Richardson v. United States, 526 U.S.
813, 824 (1999); United States v. Rios-Quintero, 204 F.3d 214,
216 (5th Cir. 2000), United States v. Taylor, 210 F.3d 317, 319
(5th Cir. 2000). Because the jury convicted Alanis on Counts 1,
7, and 8, the jury unanimously agreed on which three violations
constituted the series for CCE violation. Moreover, the jury
indicated that their verdicts were unanimous. The district court
also did not err in instructing the jury that it could consider
Count 1, the lesser-included conspiracy count, as a predicate
offense. United States v. Hicks, 945 F.2d 107, 108 (5th Cir.
1991).
Alanis challenges the sufficiency of the evidence supporting
his conviction on Count 8 for aiding and abetting the possession
of marihuana with the intent to distribute. He also argues that
because the evidence is insufficient to support his conviction on
Count 8, one of the predicate drug offenses underpinning his CCE
conviction, that conviction must also be reversed. To convict a
defendant of engaging in a CCE, the Government must prove beyond
a reasonable doubt that the defendant organized, supervised or
managed five or more persons in a continuing series of at least
three drug violations from which he obtained substantial income.
Garrett v. United States, 471 U.S. 773, 786 (1985).
No. 99-20153
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To prove possession with intent to distribute marihuana, the
Government must establish (1) knowing (2) possession of a
controlled substance (3) with intent to distribute it. United
States v. Gonzales, 121 F.3d 928, 936 (5th Cir. 1997).
To prove that an individual aided and abetted in the
possession with intent to distribute marihuana, the Government
must prove that the elements of the substantive offense occurred
and that the individual associated with the criminal venture,
purposefully participated in the criminal activity, and sought by
his actions to make the venture succeed. See id. at 936; 18
U.S.C. § 2. Association means that the defendant shared in the
principal’s criminal intent. United States v. Jaramillo, 42 F.3d
920, 923 (5th Cir. 1995). Participation means that the defendant
performed some action designed to achieve the goal of the crime.
Id. A defendant may be convicted of aiding and abetting the
offense of possession with intent to distribute a controlled
substance even if he did not have actual or constructive
possession of the controlled substance. Gonzales, 121 F.3d at
936.
We have reviewed the record and find that the evidence was
sufficient to sustain Alanis’ conviction on Count 8. Jackson v.
Virginia, 443 U.S. 307, 319 (1979). Accordingly, Alanis’ CCE
conviction is also affirmed inasmuch as the jury found him guilty
of the three predicate offenses.
Alanis argues, and the Government concedes, that his
conviction on Count 1 of the indictment must be vacated. Count 1
charged Alanis with conspiracy to possess marihuana with the
No. 99-20153
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intent to distribute. Because conspiracy is a lesser-included
offense of the CCE charged in Count 2, his conviction on Count 1
violates double jeopardy. See Rutledge v. United States, 517
U.S. 292, 307 (1996); United States v. Dixon, 132 F.3d 192, 196
(5th Cir. 1997). Though we vacate Alanis’ conviction on Count 1,
we do not remand for resentencing. If it is clear that the drug-
conspiracy conviction did not lead the district court to impose a
harsher sentence for engaging in a CCE, there is no need to
remand. Dixon, 132 F.3d at 196.
Here, the district court merged the drug-conspiracy count
into the CCE count and did not consider the evidence relating to
the conspiracy count for purposes of sentencing. Alanis was
sentenced to 240 months for Count 2 (the statutory minimum) with
the term to run concurrently with Counts 7, 8, 9, and 10. Thus,
the sentence for the CCE count was no harsher than it would have
been without the drug-conspiracy conviction.
Lastly, Alanis suggests that counsel was ineffective. The
general rule in this circuit is that a claim of ineffective
assistance of counsel cannot be resolved on direct appeal when
the claim has not been raised before the district court since no
opportunity existed to develop the record on the merits of the
allegations. United States v. Navejar, 963 F.2d 732, 735 (5th
Cir. 1992). The record is not sufficiently developed for this
court to consider any claim of ineffective assistance of counsel.
For the foregoing reasons, we VACATE Alanis’ CONVICTION on
Count 1. Otherwise, we AFFIRM Alanis’ CONVICTIONS and SENTENCE
on the remaining counts.