UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4493
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTWAIN WATKINS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:08-cr-00487-HEH-1)
Submitted: April 13, 2010 Decided: April 22, 2010
Before MOTZ, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Frances H.
Pratt, Robert J. Wagner, Assistant Federal Public Defenders,
Richmond, Virginia, for Appellant. Neil H. MacBride, United
States Attorney, Michael A. Jagels, Special Assistant United
States Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Antwain Watkins appeals his conviction by a jury of
distribution of five or more grams of crack cocaine, in
violation of 21 U.S.C. § 841(a)(1), (b)(1)(B) (2006). On
appeal, Watkins argues that the district court erred in failing
to instruct the jury on the lesser included offense of
distribution of less than five grams of crack cocaine, and that
the court should have ensured that the verdict form allowed the
jury the option of finding him guilty of the lesser offense. We
affirm.
We review the district court’s decision to give a jury
instruction and to use a special verdict form for abuse of
discretion. United States v. Passaro, 577 F.3d 207, 221 (4th
Cir. 2009); United States v. Udeozor, 515 F.3d 260, 271 (4th
Cir. 2008). In this case, however, because Watkins did not
request a lesser included offense instruction or request a
special verdict form, we review for plain error. United
States v. Olano, 507 U.S. 725, 732-35 (1993). “To establish
plain error, [Watkins] must show that an error occurred, that
the error was plain, and that the error affected his substantial
rights.” United States v. Muhammad, 478 F.3d 247, 249 (4th Cir.
2007). Even if Watkins satisfies these requirements,
“correction of the error remains within [the court’s]
discretion, which [the court] should not exercise . . . unless
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the error seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.” Id. (internal quotation
marks omitted).
“[I]t is now beyond dispute that the defendant is
entitled to an instruction on a lesser included offense if the
evidence would permit a jury rationally to find him guilty of
the lesser offense and acquit him of the greater.” Keeble v.
United States, 412 U.S. 205, 208 (1973). To justify a lesser
included offense instruction, “the proof on the element that
differentiates the two offenses must be sufficiently in dispute
to allow a jury consistently to find the defendant innocent of
the greater and guilty of the lesser offense.” United States v.
Baker, 985 F.2d 1248, 1259 (4th Cir. 1993). To be sufficiently
in dispute, the testimony on the distinguishing element must be
sharply conflicting, or the conclusion as to the lesser offense
must be fairly inferable from the evidence presented. Id. Our
review of the record leads us to conclude that the district
court did not err in failing to sua sponte instruct the jury on
the lesser included offense of distribution of less than five
grams of crack cocaine, or in failing to include that option on
the verdict form.
Accordingly, we affirm Watkins’ conviction. We
dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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