United States v. Davis

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4706
JOHN WILLIE DAVIS,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Greenville.
G. Ross Anderson, Jr., District Judge.
(CR-96-105)
Submitted: April 17, 1997
Decided: May 1, 1997
Before NIEMEYER and WILLIAMS, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Benjamin T. Stepp, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. J. Rene Josey, United States Attorney,
E. Jean Howard, Assistant United States Attorney, Christopher W.
Seybolt, Greenville, South Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
John Willie Davis appeals from his jury conviction for possession
with intent to distribute crack cocaine, in violation of 21 U.S.C.
§ 841(a) (1994). Davis first contends that the district court erred in
denying his motion for acquittal. Second, he asserts that the district
court committed plain error by failing to instruct the jury on the lesser
included offense of simple possession. We hold that there was suffi-
cient evidence for a jury to convict Davis. We also hold that the dis-
trict court was not required to give the disputed instruction sua sponte.
Accordingly, we affirm Davis's convictions.
On November 30, 1995, Greenville Police Detectives Kelly Riggs
and Kenneth Bowser conducted a traffic stop of Davis's vehicle,
because it ran a red light and several stop signs. Davis was operating
the vehicle and accompanied by a passenger, Samuel Cobb. Once the
car stopped, Cobb exited the vehicle and attempted to flee. Bowser
apprehended Cobb and retrieved a plastic bag of crack cocaine from
where Cobb had thrown it. Riggs arrested Davis and found $551 in
cash on his person.
At trial, Cobb testified that the crack cocaine he threw belonged to
Davis. He also testified that he had known Davis for fifteen years and
had never known him to have a job. A chemist testified that the bag
contained 5.36 grams of crack cocaine, and Bowser stated that this
amount of crack cocaine would have an estimated street value of
$1,000.
The defense presented testimony that Davis's common law wife
had given him most of the cash to pay for a lay-away. Two former
prison mates of Cobb's testified that Cobb told them the drugs
belonged to him and not to Davis. Finally, Davis's cousin testified
that Cobb had tried to sell him crack cocaine just prior to Davis's and
Cobb's arrests.
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The jury charge did not include a lesser included offense instruc-
tion regarding simple possession. The defense neither requested such
an instruction nor objected to the omission of such an instruction. The
jury found Davis guilty of possession with intent to distribute crack
cocaine. This appeal followed.
We review the denial of a motion for acquittal under a sufficiency
of evidence standard. See Fed. R. Crim. P. 29; United States v.
Brooks, 957 F.2d 1138, 1147 (4th Cir. 1992)."To sustain a convic-
tion[,] the evidence, when viewed in the light most favorable to the
government, must be sufficient for a rational trier of fact to have
found the essential elements of the crime beyond a reasonable doubt."
United States v. Brewer, 1 F.3d 1430, 1437 (4th Cir. 1993); see also
Glasser v. United States, 315 U.S. 60, 80 (1942). Circumstantial as
well as direct evidence is considered, and the Government is given the
benefit of all reasonable inferences from the facts proven to those
sought to be established. United States v. Tresvant, 677 F.2d 1018,
1021 (4th Cir. 1982).
Davis asserts that there was insufficient evidence to support his
conviction. He contends that the amount of crack cocaine that he
possessed--5.36 grams--was insufficient, by itself, to prove intent to
distribute. However, Davis possessed roughly the amount of crack
cocaine that a "strong" user would ingest in a little under two months.
See United States v. Lamarr, 75 F.3d 964, 973 (4th Cir. 1996) (a
"strong" user's daily dose is approximately 1/10 of a gram), cert.
denied, ___ U.S. ___, 65 U.S.L.W. 3309 (U.S. Oct. 21, 1996) (No.
95-9398). Combined with Cobb's testimony that Davis had not had
a job in fifteen years and the recovery of over $500 in cash from
Davis, the amount in question was sufficient evidence to support the
jury's inference of intent to distribute beyond a reasonable doubt.
Davis next challenges the absence of an instruction to the jury that
it could find him guilty of the lesser included offense of possession
of crack cocaine. Davis did not request the lesser included offense
instruction and did not object to the district court's omission of the
instruction. A defendant is entitled to a lesser included offense
instruction if the evidence warrants the instruction and the defendant
requests it. See United States v. Baker, 985 F.2d 1248, 1259 (4th Cir.
1993). However, when a defendant fails to request an instruction,
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such an instruction may well be at odds with the trial strategy of
defense counsel. See United States v. Chandler , 996 F.2d 1073, 1099
(11th Cir. 1993). Such was the case here: Davis's defense was purely
exculpatory--he claimed that the drugs belonged to Cobb. Because a
lesser included offense instruction would have been inconsistent with
Davis's defense, the district court did not err by failing to give such
an instruction sua sponte. See id.Accordingly, we affirm Davis's conviction. We dispense with oral
argument because the facts and legal contentions are adequately pres-
ented in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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