IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-50542 Summary Calendar

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

JOSÉ GABRIEL SALAZAR

Defendant - Appellant

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. P-00-CR-71-1 -------------------- March 9, 2001

Before KING, Chief Judge, and WIENER and DENNIS, Circuit Judges.

PER CURIAM:*

José Gabriel Salazar appeals his conviction for possession

with intent to distribute marijuana. Appellant contends that the

evidence was insufficient to convict him because the Government

did not prove beyond a reasonable doubt that he actually or

constructively possessed the marijuana found in a truck

registered to his parents and occupied by his friend and a

brother-in-law. He contends that the district court abused its

discretion in instructing the jury that he could be found guilty

as an aider and abettor because he was unfairly surprised by the

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-50542 -2-

instruction and the instruction constructively amended the

indictment and diluted the Government's burden of proof.

The district court did not abuse its discretion in giving

the aiding-and-abetting instruction. See United States v.

Botello,

(5th Cir. 1993); United States v.

Neal,

(5th Cir. 1992). The evidence was

sufficient for the jury to conclude that appellant aided and

abetted the possession of marijuana with the intent to distribute

it. See United States v. Williams,

(5th

Cir. 1993).

AFFIRMED.