                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  June 21, 2004

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 03-20612
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

TERRANCE SWEAT,

                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. H-02–CR-368-5
                      --------------------

Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

     Terrance Sweat appeals his convictions of possession with

intent to distribute five grams or more of cocaine base, aiding

and abetting possession with intent to distribute five grams or

more of cocaine base, and conspiracy to possess with intent to

distribute five grams or more of cocaine base.   We affirm the

convictions.

     Sweat and four co-defendants were indicted as a result of an

undercover investigation of drug distribution activities in

     *
        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that this opinion should not be published and is not precedent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. 03-20612
                                 -2-

Huntsville, Texas.    DEA Agent Ronald Patrick Starks was

introduced to Sweat via a Confidential Source (“CS”).    Starks

testified about three transactions in which Sweat sold him crack;

all three transactions were arranged via the CS.

       On February 12, 2002, Starks, Sweat, and the CS met at a

Quick Pic grocery store in Huntsville to complete a sale of

cocaine base.    Sweat arrived at the Quick Pic riding as a

passenger in a green Neon driven by his girlfriend.    Sweat

signaled for Starks and the CS to follow him.     Starks and the CS

followed the Neon to Sweat’s girlfriend’s trailer.    After leaving

Sweat at her trailer, his girlfriend drove away.    Inside the

trailer, Sweat went to a kitchen drawer and retrieved a pill

bottle containing several rocks of crack cocaine.     Starks picked

several rocks and gave Sweat $160.    This transaction was not

subject to the indictment in this case and the jury was given a

limiting instruction.

       On February 20, 2002, Sweat and Starks planned to meet at

the CS’s trailer on Thompson Street in Huntsville.     Starks

arrived at the trailer first and observed Sweat arrive in a car

driven by one of his co-defendants, Quentin Plattenburg.       Sweat

was riding in the front passenger seat and when Starks walked up

to the passenger window to speak to Sweat, he saw what appeared

to be a crack cocaine cookie sitting on the right side of Sweat’s

lap.    Starks purchased the cookie for $550.   A third transaction
                             No. 03-20612
                                  -3-

occurred between Sweat and Starks at the CS’s trailer; however,

Plattenburg was not involved in this transaction.

     Starks characterized Plattenburg as being “involved” in the

deal because he was in a position to see and hear the deal, and

he watched the deal.    Plattenburg did not say anything; however,

he did nod his head as a greeting to Starks.     Although the trial

evidence consisted of three transactions between Sweat and

Starks, Plattenburg was involved in only the February 20

transaction.   No evidence was presented as to Sweat’s source of

the crack.   Jose Valles, a Huntsville police officer, testified

that he had seen Sweat “hanging out” with his co-defendants but

conceded that he had not observed them engaging in drug dealing

activities together.

     Normally, this court reviews a challenge to the sufficiency

of the evidence to determine whether “a rational trier of fact

could have found that the evidence established guilt beyond a

reasonable doubt.”     United States v. Barton, 257 F.3d 433, 439

(5th Cir. 2001) (citation omitted).

     However, because Sweat did not move for a judgment of

acquittal, this court reviews only for whether there was a

manifest miscarriage of justice.     United States v. Pierre, 958

F.2d 1304, 1310 (5th Cir. 1992) (en banc).    A manifest

miscarriage of justice exists when the record is devoid of

evidence pointing to guilt or when the “evidence on a key element
                            No. 03-20612
                                 -4-

of the offense was so tenuous that a conviction would be

shocking.”    Id. (citation omitted).

       To establish a conspiracy, the Government must prove the

existence of an agreement between two or more persons to violate

the narcotics laws, knowledge of the agreement, and voluntary

participation in the conspiracy.    United States v. Booker, 334

F.3d 406, 409 (5th Cir. 2003).    The agreement may be tacit and

may be inferred from circumstantial evidence.    Id.   Proof of mere

association with persons involved in criminal activity without

more is not sufficient to establish participation in a

conspiracy.    United States v. Smith, 203 F.3d 884, 887 (5th Cir.

2000).    Similarly, mere knowing presence is not sufficient to

establish knowledge of or participation in a conspiracy.       United

States v. Espinoza-Seanez, 862 F.2d 526, 537 (5th Cir. 1988).

       Under the manifest miscarriage of justice standard of

review, the evidence was sufficient to convict Sweat of the

conspiracy count.    The jury could have inferred from the

testimony concerning the events of February 20 both the existence

of a tacit agreement between Plattenburg and Sweat and their

knowledge of and voluntary participation in the agreement.

Plattenburg assisted Sweat in the furtherance of the conspiracy

by driving Sweat to the CS’s trailer on February 20 and observing

the deal while the crack cookie sat in plain sight on Sweat’s

lap.    Sweat arguably would not have allowed Plattenburg to

accompany him on the February 20 transaction were Plattenburg not
                             No. 03-20612
                                  -5-

“in on” the conspiracy.     Indeed, Sweat could have conducted the

transaction in the CS’s trailer while Plattenburg waited in the

car.    It thus cannot be said that the record is devoid of

evidence of a conspiracy between Sweat and Plattenburg.        See

Pierre, 958 F.2d at 1310.

       To secure a conviction for aiding and abetting, the

Government must prove that the defendant: “(1) associated with

the criminal enterprise; (2) participated in the venture; and (3)

sought by action to make the venture succeed.”     United States v.

Casilla, 20 F.3d 600, 603 (5th Cir. 1994).    The evidence

supporting a conspiracy conviction typically supports an aiding

and abetting conviction.     Id.

       To support Sweat’s conviction for aiding and abetting

Plattenburg’s possession with intent to distribute, Sweat must

have aided and abetted both the possession of the crack and the

intent to distribute it.     See United States v. Delagarza-

Villarreal, 141 F.3d 133, 140 (5th Cir. 1997).     Thus, to support

Sweat’s conviction, the evidence must show that Plattenburg had

actual or constructive possession of the crack.     See id.

Constructive possession “is the knowing exercise of, or the

knowing power or right to exercise dominion and control over the

proscribed substance.”     United States v. Richardson, 848 F.2d

509, 512 (5th Cir. 1988) (quotation and emphasis omitted).

“Constructive possession may be shown by ownership, dominion or

control over the contraband itself, or dominion or control over
                             No. 03-20612
                                  -6-

the premises or the vehicle in which the contraband was

concealed.”    Id. (quotation and emphasis omitted).   Plattenburg

exercised control over the car where the February 20th sale

occurred.

     While we have found constructive possession in cases where

the contraband was more inaccessible to the driver than the crack

was to Plattenburg in this case, “we have hesitated to rely

solely on control of the vehicle, even over an extended trip, and

our affirmance of conviction[s] has been influenced by such

additional factors as the suspicious nature of the trip and

circumstances evidencing a consciousness of guilt on the part of

the defendant.”    Id.   Here the evidence shows that the crack was

in plain view throughout the sale, and there is no indication

that Plattenburg did not know that he was transporting crack

cocaine.    Therefore, under the manifest miscarriage of justice

standard of review, the evidence supports a jury finding that

Plattenburg had constructive possession of the crack cocaine sold

in the February 20 transaction.    The intent to distribute can be

inferred from the quantity of crack distributed.    Consequently,

the evidence was also sufficient to support Sweat’s conviction

for aiding and abetting Plattenburg’s possession of crack with

intent to distribute.

     Finally, we note that the February 12 transaction occurred

in Sweat’s girlfriend’s trailer and that Sweat retrieved the

crack, which was in a pill bottle, from her kitchen drawer.
                          No. 03-20612
                               -7-

However, this transaction was not subject to the indictment in

this case and the jury was given a limiting instruction.

Accordingly, Sweat’s aiding and abetting conviction must be

affirmed.

     Sweat additionally argues for the first time on appeal that

the provisions in 21 U.S.C. § 841(a) and (b) are unconstitutional

in light of Apprendi v. New Jersey, 530 U.S. 466 (2000).   Sweat

acknowledges that his argument pursuant to Apprendi is foreclosed

by United States v. Slaughter, 238 F.3d 580, 582 (5th Cir. 2000),

but seeks to preserve it for further review.

     AFFIRMED.
