UNPUBLISHED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Affirmed by unpublished per curiam opinion.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.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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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 sufficient evidence for a jury to convict Davis. We also hold that the district 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 instruction 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 conviction[,] 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 presented in the materials before the court and argument would not aid the

decisional process.

AFFIRMED

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