                   UNITED STATES COURT OF APPEALS
                        For the Fifth Circuit



                             No. 97-40346



                      UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,


                                VERSUS


        IGNACIO LOPEZ VILLAREAL; ISRAEL ALVAREZ; EVELYN JONES;
      BILLY WAYNE SESSIONS, also known as Billy Jones; BALTAZAR
         CANTU, also known as La Corcha, also known as Bobby,

                                              Defendants-Appellants.




            Appeal from the United States District Court
                 For the Southern District of Texas
                           (M-95-CR-227-15)
                           August 28, 2001
Before GARWOOD, JOLLY, and DeMOSS, Circuit Judges.

PER CURIAM:*

       Defendants-Appellants Ignacio Lopez Villareal, Israel Alvarez,

Evelyn Jones, Billy Wayne Sessions, and Baltazar Cantu appeal their

convictions and sentences for various drug crimes.




  *
   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opinion should not be published and is not precedent except under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.
      The government alleged that Cantu and others operated a drug-

trafficking   organization      that        transported     large   amounts     of

marijuana and cocaine to places outside Texas.                  Moreover, the

government argued that Sessions and Jones ran a trucking business

that the drug-trafficking organization utilized to transport the

contraband.   According to the government, Alvarez and Villarreal

assisted the organization by loading and driving the vehicles that

transported the drugs.

      The jury convicted the defendants of numerous crimes, ranging

from conspiracy to possess with intent to distribute to money

laundering.   On appeal, each defendant raises various points of

error.   We note them below.

      Cantu makes three main arguments. First, he contends that his

conviction for violating the continuing criminal enterprise (“CCE”)

statute should be vacated because the jury only convicted him of

two, and not three, substantive acts of possession with intent to

distribute.       Second, Cantu challenges the sufficiency of the

evidence to   support     the   CCE    count,    the     substantive   count    of

possession with intent to distribute cocaine, the substantive count

of   possession    with   intent   to       distribute    marijuana,   and     the

substantive count of money laundering. Third, he believes that the

district court abused its discretion by refusing to provide the

jury with written jury instructions.



      Sessions generally argues that there was insufficient evidence

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to support his convictions.          In addition, he concurs with Cantu’s

assessment that the district court’s failure to include written

jury instructions was improper.

       Jones raises four points of error.               First, she challenges the

sufficiency of the evidence with respect to her convictions for 1)

conspiracy to possess with intent to distribute marijuana, 2)

possession with intent to distribute marijuana, 3) conspiracy to

commit    money    laundering,      and       4)   substantive       acts   of    money

laundering.       Second,    Jones   contends           that   the   district     court

violated Apprendi v. New Jersey, 120 S. Ct. 2348 (2000), in

calculating the drug amounts and laundered money attributable to

her. Third, she charges that the district court erred in admitting

certain   allegedly     404(b)   material          at   trial.       Finally,     Jones

maintains that the district court erred in upwardly adjusting her

sentence for obstruction of justice, based upon her testimony at

trial.

       Alvarez    contends   that    the      evidence     did   not    support    his

convictions for conspiracy to possess with intent to distribute

marijuana and possession with intent to distribute marijuana.

Additionally, he believes that the district court abused its

discretion in failing to provide written jury instructions.

       Like the others, Villarreal questions the sufficiency of the

evidence with respect to his conviction for conspiracy to possess

with   intent     to   distribute    marijuana.            Furthermore,      he   also



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challenges the district court’s decision not to give written jury

instructions.

     After having reviewed the briefs, the applicable law, and

pertinent portions of the record, we reject the vast majority of

the defendants’ points of error.            As a result, we affirm the

district court’s determinations in every case, but one.                 That

exception relates to the sufficiency of the evidence with respect

to Cantu’s conviction for Count 9.                Our review of the record

suggests   that   the   government       failed    to   establish   beyond   a

reasonable doubt that Cantu possessed with intent to distribute

cocaine.

     In reviewing a challenge to the sufficiency of the evidence,

we must determine whether a rational trier of fact could have found

that the evidence established guilt beyond a reasonable doubt.

United States v. Mergerson, 4 F.3d 337, 341 (5th Cir. 1993).             All

reasonable inferences drawn from the evidence and all credibility

determinations are viewed in the light most favorable to the

verdict. United States v. Westbrook, 119 F.3d 1176, 1189 (5th Cir.

1997).   But “[i]f the evidence viewed in the light most favorable

to the prosecution gives equal or nearly equal circumstantial

support to a theory of guilt and a theory of innocence of the crime

charged, this court must reverse the conviction[].”            United States



v. Sanchez, 961 F.2d 1169, 1173 (5th Cir. 1992) (internal quotation


                                     4
marks and citations omitted).

     To prove possession with intent to distribute, the government

must show that the defendant knowingly possessed a controlled

substance with intent to distribute.     United States v. Torres, 114

F.3d 520, 524 (5th Cir. 1997).        Proof may consist of direct or

circumstantial   evidence   demonstrating    actual   or    constructive

possession, which is “defined as ownership, dominion, or control

over illegal drugs or dominion over the premises where drugs are

found.” Id. Cantu’s conviction for Count 9 involved the discovery

of approximately 45 kilograms of cocaine in a Dodge Ram Charger

driven by Priscilla Valadez on September 30, 1992.         The government

presented testimony that Valadez’s boyfriend Zeferino Martinez and

Cantu transacted drugs with each other, that Valadez attended a

meeting in which Martinez and Cantu talked about transporting drugs

to Houston, and that Martinez induced Valadez to drive the Charger,

with cocaine inside, from the McAllen area to Houston.         There was

no direct testimony, however, that the cocaine was Cantu’s, nor did

the evidence reveal that Cantu owned the vehicle.          The mere fact

that Cantu and Martinez had previously done drug transactions

together does not establish Cantu’s possession of the cocaine.        If

the meeting about transporting drugs to Houston had occurred within

a short period of time from the date of Valadez’s attempted

transport, a jury could reasonably have inferred that Cantu was

somehow involved.   But Valadez further testified that the meeting


                                  5
occurred in June or July, more than two months before the date of

the attempted transport.    Without more, that time differential

amounts to a disconnect that does not allow for a reasonable

inference that Cantu possessed the cocaine, which Valadez attempted

to transport, with the intent to distribute.    Therefore, we find

the evidence insufficient to convict Cantu of Count 9.2

      Accordingly, we vacate Cantu’s conviction and sentence for

Count 9 and remand for proceedings consistent with this opinion.

As for the remaining defendants, we affirm their convictions and

sentences.




  2
   We note that there was no Pinkerton instruction as to this
count. In Pinkerton v. United States, 328 U.S. 640 (1946), “the
Supreme Court held that ‘a party to a conspiracy may be held
responsible for a substantive offense committed by a coconspirator
in furtherance of a conspiracy, even if that party does not
participate in or have any knowledge of the substantive offense.’”
United States v. Gobert, 139 F.3d 436, 439 n.22 (5th Cir. 1998)
(quoting United States v. Jensen, 41 F.3d 946, 955-56 (5th Cir.
1994)).

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