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.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-97-CR-153-9 -------------------- 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,

(a)(1) & (b)(1)(A) (Count

1); continuing criminal enterprise (CCE)(Count 2),

; aiding and abetting the possession with the intent to

distribute marihuana,

(a)(1) & (b)(1)(B) and

(Counts 7 and 8); money laundering,

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

launder money,

(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,

(1999); United States v. Rios-Quintero,

(5th Cir. 2000), United States v. Taylor,

(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,

(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,

(1985). No. 99-20153 -3-

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,

(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

;

. Association means that the defendant shared in the

principal’s criminal intent. United States v. Jaramillo,

(5th Cir. 1995). Participation means that the defendant

performed some action designed to achieve the goal of the crime.

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,

.

We have reviewed the record and find that the evidence was

sufficient to sustain Alanis’ conviction on Count 8. Jackson v.

Virginia,

(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 -4-

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,

(1996); United States v. Dixon,

(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,

.

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,

(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.