United States Court of Appeals

for the Fifth Circuit

____________

No. 23-50007

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United States of America, 

Plaintiff—Appellee,

versus

Samuel Tanel Crittenden, 

Defendant—Appellant.

______________________________

Appeal from the United States District Court 

for the Western District of Texas

USDC No. 3:17-CR-2039-2

______________________________

Before Dennis, Willett, and Duncan, Circuit Judges.

Don R. Willett, Circuit Judge:

Samuel Crittenden appeals his conviction for possession with intent 

to distribute 500 grams or more of methamphetamine, claiming that the 

district court erred by accepting his waiver of conflict-free counsel and by 

declining to give a lesser-included-offense jury instruction for simple 

possession. For the reasons that follow, we AFFIRM.

I

Federal agents received a tip that methamphetamine was being stored 

at a house on Byway Drive in El Paso, Texas, and arranged for an informant 

United States Court of Appeals

Fifth Circuit

FILED

September 24, 2024

Lyle W. Cayce

Clerk
No. 23-50007

2

to attempt a controlled buy. The informant called the number associated with 

the tip and spoke with Crittenden’s wife, Carla Dominguez, who confirmed 

that she had methamphetamine for sale. Dominguez and the informant 

agreed to meet in a parking lot to exchange ten pounds of crystal 

methamphetamine for $35,000.

Shortly before the scheduled exchange, agents watched Dominguez 

and Crittenden leave their family home in separate vehicles. Crittenden 

drove to the house on Byway Drive and went inside. Dominguez arrived at 

the same home around forty-five minutes later. Crittenden exited the 

residence and handed Dominguez a bag through her passenger-side window. 

Dominguez then left the Byway Drive house and drove in the direction of the 

parking lot where she had agreed to meet the informant. Police intercepted 

Dominguez and found a bag with ten bundles of methamphetamine on the 

passenger floorboard, which weighed roughly ten pounds and was worth 

approximately $35,000. 

Agents spoke with Crittenden that evening outside his residence. He

admitted that he had stored items in the attic of the Byway Drive house and 

had given a bag to Dominguez that day. He asserted they were his “wife’s 

bags” and that he “thought” or “believed” they contained marijuana. 

Following their interview with Crittenden, agents searched the attic of the 

residence on Byway Drive. They recovered suitcases filled with three 

additional bundles of methamphetamine and ninety bundles of marijuana. 

Crittenden’s friend, who lived at the Byway Drive house, recounted that 

Crittenden asked to store personal items at the house. He agreed, and 

Crittenden brought suitcases over and placed them in the attic. 

Dominguez claimed that an old acquaintance sent the drugs to the 

home she shared with Crittenden without warning or permission. The 

delivery arrived as unmarked bundles in a plastic tub. When she informed 
No. 23-50007

3

Crittenden about the delivery, he expressed concern that drugs were in the 

family home with their children. Dominguez testified at trial that Crittenden 

“probably” repackaged the drugs from the original tub into suitcases. From 

there, Crittenden moved the suitcases to the Byway Drive house because he 

did not want drugs around his family. 

II

Dominguez and Crittenden were charged with three counts: 

(1) conspiracy to possess with intent to distribute 500 grams or more 

methamphetamine; (2) possession with intent to distribute 500 grams or 

more of methamphetamine; and (3) conspiracy to possess with intent to 

distribute marijuana. Before trial, the Government filed a motion notifying 

the district court that Crittenden’s retained counsel, Leonard Morales, could 

have a possible conflict of interest. The potential conflict concerned

Morales’s concurrent representation of Francisco Javier Amaro-Arratia, an 

individual who by that time pleaded guilty to drug charges in a separate 

proceeding. Amaro-Arratia apparently was in contact with Dominguez in the 

days leading up to her arrest, and there was evidence that the two likely had 

the same source of supply. The Government speculated that “Crittenden’s 

defense could evolve into a situation where there is a potential conflict of 

interest.” Although the Government contended that the conflict was 

waivable and that, based on its conversation with Morales, “Crittenden’s 

anticipated defense would not evolve into a conflict,” the Government still 

asked the district court to inquire into the potential conflict.

The district court held a Garcia1 hearing on the Government’s 

motion. The court informed Crittenden that he was entitled to a conflict-free 

_____________________

1 United States v. Garcia, 517 F.2d 272 (5th Cir. 1975), abrogated on other grounds by 

Flanagan v. United States, 465 U.S. 259, 263 & 263 n.2 (1984).
No. 23-50007

4

lawyer and told him that conflicts can come in two types: waivable and 

nonwaivable. The court explained that if the conflict was waivable,

Crittenden could “waive it and proceed to trial with . . . Morales.” But if the 

conflict was not waivable, the court explained that Crittenden would need to 

have an attorney appointed or “retain another attorney to represent [him].” 

Morales confirmed that he had previously “explained all this” to Crittenden, 

reviewed with Crittenden “his rights . . . and so forth,” and discussed the 

Government’s motion with Crittenden “in detail.” According to Morales, 

Crittenden had no issues with the possible conflict given that Morales’s 

client in the unrelated case had only a “tangential link” to his case. Morales 

asserted that he understood that the Government did not intend to call 

Amaro-Arratia as a witness and that Amaro-Arratia did not have information 

related to Crittenden; any “tenuous” link was between Amaro-Arratia and 

Dominguez. The district court asked whether Crittenden “underst[ood] all 

that.” Crittenden answered that he did.

The district court concluded that any conflict was potential “at least.”

The court once again confirmed that Crittenden understood “all that” and 

asked him whether he desired to proceed with Morales as his counsel.

Crittenden responded in the affirmative. The court again reminded 

Crittenden that he was entitled to conflict-free counsel and told him that the 

trial would be postponed if he wanted another attorney. Crittenden expressed 

his understanding and repeated his desire to proceed with Morales as 

counsel. 

After this transpired, the district court asked the Government for its 

position on the purported conflict. The Government commented that there 

were “ways that [the] potential conflict could arise.” Specifically, there 

appeared to be a previous transaction between Dominguez and AmaroArratia, related phone records, and a recording on which Dominguez talked 

about “delivering to this other person.” The prosecutor spelled out that a 
No. 23-50007

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conflict would likely arise if Morales went “down a road saying . . . Crittenden 

had nothing to do with this, it was all . . . Dominguez, and she got it from 

[Amaro-Arratia].” At the end of the hearing, the district court asked Morales 

to file a written waiver of the right to conflict-free counsel signed by 

Crittenden. Morales did so.

The district court accepted the waiver and the case proceeded to trial.

At the close of evidence at trial, Crittenden filed two motions. First, 

he moved for judgment of acquittal. Although the district court expressed 

some concern with the “intent to distribute” element of the charges, it 

denied the motion. Second, Crittenden filed a proposed jury instruction 

asking that the jury be instructed on the lesser included offense of simple 

possession under 21 U.S.C. § 844(a) in connection with any instruction about 

Count 2 (possession with intent to distribute methamphetamine under 21 

U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(viii)). The district court denied this 

motion too. The jury convicted Crittenden on all counts. 

Crittenden moved post-verdict for an acquittal or, in the alternative, a 

new trial. The district court granted a new trial on all counts, concluding that

the evidence was insufficient for a finding of knowledge for Count 2. The 

Government appealed the district court’s grant of a new trial. A split panel 

of this court affirmed the district court’s grant of a new trial.2 Our court 

granted en banc rehearing, concluded that the district court erred in granting 

a new trial on the count of possession with intent to distribute 

methamphetamine, reinstated the verdict as to that count, and remanded for 

sentencing as to that conviction.3 On remand, the district court granted the 

_____________________

2 United States v. Crittenden, 25 F.4th 347, 350 (5th Cir. 2022), vacated and reh’g en 

banc granted, 26 F.4th 1015 (5th Cir. 2022).

3 United States v. Crittenden, 46 F.4th 292, 300 (5th Cir. 2022) (en banc).
No. 23-50007

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Government’s motion to dismiss Counts 1 and 3 and, as to Count 2, 

sentenced Crittenden to seventy months of imprisonment. This appeal 

followed.

III

Crittenden makes two arguments on appeal. First, he argues that the 

district court erred by failing to protect Crittenden’s right to effective 

assistance of counsel by accepting a conflict-free waiver when there was a 

significant actual conflict of interest. Second, he assertsthat the district court 

abused its discretion in not giving Crittenden’s requested lesser-includedoffense instruction. We review each in turn.

A

We review for “simple error” a district court’s acceptance of waiver 

of the right to conflict-free counsel.4

“Under the Sixth Amendment, where there exists a constitutional 

right to counsel, there exists a correlative right to representation that is free 

from any conflict of interest.”5 Nevertheless, the right to conflict-free 

counsel is not absolute and “can be waived if (1) the waiver is made 

voluntarily, knowingly, and intelligently, and (2) the conflict is not so severe

as to undermine the integrity of the judicial system.”6In a “Garcia hearing”

on a conflict of interest and the waiver of this right, district courts must 

_____________________

4 United States v. Vaquero, 997 F.2d 78, 89 (5th Cir. 1993), cert. denied, 510 U.S. 

1016 (1993).

5 United States v. Rico, 51 F.3d 495, 508 (5th Cir. 1995) (quoting United States v. 

Carpenter, 769 F.2d 258, 262 (5th Cir. 1985)).

6

Id. (first citing United States v. Garcia, 517 F.2d at 276–77; then citing Vaquero, 

997 F.2d at 90–91).
No. 23-50007

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address each defendant personally and forthrightly advise him 

of the potential dangers of representation by counsel with a 

conflict of interest. The defendant must be at liberty to 

question the district court as to the nature and consequences of 

his legal representation. Most significantly, the court should 

seek to elicit a narrative response from each defendant that he 

has been advised of his right to effective representation, that he 

understands the details of his attorney’s possible conflict of 

interest and the potential perils of such a conflict, that he has 

discussed the matter with his attorney or if he wishes with 

outside counsel, and that he voluntarily waives his Sixth 

Amendment protections . . . . Mere assent in response to a 

series of questions from the bench may in some circumstances 

constitute an adequate waiver, but the court should 

nonetheless endeavor to have each defendant personally 

articulate in detail his intent to forego this significant 

constitutional protection.7

We have summarized Garcia as requiring the district court “to ensure that 

the defendant (1) is aware that a conflict of interest exists; (2) realizes the 

potential hazards to his defense by continuing with such counsel under the 

onus of a conflict; and (3) is aware of his right to obtain other counsel.”8

On appeal, Crittenden argues that he did not knowingly and 

voluntarily waive Morales’s conflict of interest while concurrently

representing Crittenden and Amaro-Arratia because (1) Morales failed to 

_____________________

7 Garcia, 517 F.2d at 278 (citations omitted).

8 United States v. Greig, 967 F.2d 1018, 1022 (5th Cir. 1992) (citing United States v. 

Casiano, 929 F.2d 1046, 1052 (5th Cir. 1991)). 
No. 23-50007

8

sufficiently explain the conflict to him; and (2) the colloquy at the Garcia 

hearing was inadequate.

As to the first point, Crittenden questions Morales’s understanding of 

the conflict, as well as the representations Morales made about the conflict’s

effect on Crittenden’s defense, because Morales allegedly asserted that 

Amaro-Arratia and Dominguez did not “have any relationship 

whatsoever.”9 Crittenden maintains that Morales could not have thoroughly 

discussed the potential conflict with him such that Crittenden understood 

the potential hazards. 

In support of his latter point, Crittenden alleges that the hearing failed 

to meet Garcia’s standards because it included only a brief and vague 

discussion of the issue and the court did not elicit a “narrative response” 

from him, but only “mere assent,” which Garcia discourages.10 Crittenden 

argues that it was not until the end of the Garcia hearing that the Government 

explained the possible perils of the conflict. And at that point, Crittenden 

argues, he was not asked again if he understood. Accordingly, Crittenden 

argues that the district court erred by accepting his waiver. 

We disagree. Even if the potential conflict of interest stemming from 

Morales’s concurrent representation of Amaro-Arratia and Crittenden 

ripened into an actual conflict during trial, the record reflects that Crittenden 

voluntarily, knowingly, and intelligently waived his right to conflict-free 

counsel before trial. Crittenden was present at the Garcia hearing when the 

court and the parties explained the nature of the potential conflict and 

referred to the possible risks that the conflict could pose to his defense. And 

_____________________

9 Upon review of the hearing transcript, it is more likely Morales was referring to 

the lack of relationship between Amaro-Arratia and Crittenden, not Dominguez. 

10 Garcia, 517 F.2d at 278.
No. 23-50007

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even though the court did not address Crittenden again after the Government 

provided a “real description of the conflict,” he voluntarily signed the waiver 

at the conclusion of the Government’s explanation. Crittenden was aware 

that Morales represented Amaro-Arratia in a tangentially related criminal 

matter, that there was evidence indicating that Dominguez and AmaroArratia engaged in prior drug trafficking activities with each other and shared 

a common source of supply, and that there was a potential for Morales to be 

torn between divergent obligations should Crittenden’s defense develop in a 

certain manner. Especially because the conflict was “potential,” the court 

could not anticipate and “detail each and every one of the snares posed by” 

the conflict, nor was it required to do so.

11

Further, Crittenden executed a written waiver—the sufficiency of 

which he does not meaningfully challenge on appeal. That waiver contains an 

express acknowledgment by Crittenden that he: was advised of his right to 

effective representation; was notified and understood the details and likely 

hazards of Morales’s potential conflict; discussed the matter with Morales 

and understood that he could consult and obtain new counsel; and knowingly 

and voluntarily waived his right to conflict-free counsel. The signed waiver 

establishes that he waived the right to conflict-free counsel with ample

awareness of the relevant circumstances and of the likely risks of proceeding 

with Morales as his lawyer.

12 So, even if the colloquy at the Garcia hearing 

_____________________

11 See Casiano, 929 F.2d at 1053; see also United States v. White, 706 F.2d 506, 509 

(5th Cir. 1983) (“[T]his Court does not expect a trial judge to anticipate every possible 

detriment that might befall a defendant as the result of a conflict in a particular case . . .”).

12 See Rico, 51 F.3d at 510–11.
No. 23-50007

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was inadequate, we conclude that the written waiver remediated any 

deficiency given the record before us.

13

Crittenden has not meaningfully argued that the conflict was “so 

severe as to render a trial inherently unfair” or that “the integrity of the 

judicial system has been undermined”14 beyond a cursory statement that 

“the conflict was so significant, his waiver should not have been accepted.”

Crittenden has not offered facts or record evidence to demonstrate that 

Morales and the prosecutor were unreasonable in believing that any conflict 

was waivable, and that Morales’s representation of Crittenden would not be 

negatively affected by the potential conflict.

15

Accordingly, we find that the district court did not err when it 

accepted Crittenden’s waiver of conflict-free counsel.

B

We turn now to Crittenden’s challenge to the district court’s denial 

of a lesser-included-offense instruction for simple possession. 

_____________________

13 Id. (holding that defendant’s written waiver satisfied Garcia in the absence of a 

colloquy); cf. United States v. Moore, 37 F.3d 169, 174 (5th Cir. 1994) (finding that “[t]he 

Garcia hearing . . . f[ell] short of” Garcia’s ideal narrative response, but nevertheless 

finding no error because “the record [otherwise] clearly establish[ed] that [the defendants 

knowingly] waived their right to a conflict-free attorney”). Crittenden also challenges the 

voluntariness of his waiver by questioning the court’s explanation of his right to appointed 

counsel and his opportunity to consult with outside counsel. Deficiencies such as these, if 

they exist, are remedied by the written waiver that expressly addressed each of these points.

14 See Vaquero, 997 F.2d at 90.

15 See id. at 90–91 (evaluating if the conflict undermines the integrity of the judicial 

system by referencing the ABA Model Rules of Professional Conduct, which asks whether 

“the attorney reasonably believes the new client’s representation will not be affected”).
No. 23-50007

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“We review de novo the district court’s determination of whether a 

particular offense is a lesser included offense of a charged offense.”16 And

“[w]e review for abuse of discretion the lower court’s determinations as to 

‘whether a jury could rationally acquit on the greater offense yet convict on 

the lesser.’”17

“Rule 31(c) of the Federal Rules of Criminal Procedure provides in 

relevant part that a ‘defendant may be found guilty of an offense necessarily 

included in the offense charged.’”18 “This rule entitles a defendant to a jury 

instruction on any lesser included offense whenever two independent 

prerequisites have been met”: Crittenden must have shown that (1) the 

elements of simple possession were a subset of the elements of possession 

with intent to distribute, and (2) based on the evidence presented at trial, a

rational jury could have found him guilty of simple possession yet acquitted

him of possession with intent to distribute.

19 We limit our analysis to the 

second prong because our circuit precedent holds, and the parties agree, that 

simple possession is a lesser-included offense of possession with intent to 

distribute—thus, the district court’s contrary conclusion was legal error.20

_____________________

16 United States v. Snarr, 704 F.3d 368, 389 (5th Cir. 2013) (citing United States v. 

Finley, 477 F.3d 250, 256 (5th Cir. 2007)).

17 Id. (quoting Finley, 477 F.3d at 256).

18 United States v. Browner, 889 F.2d 549, 550 (5th Cir. 1989) (quoting Fed. R. 

Crim. P. 31(c)).

19 See id. at 550–51 (citations omitted).

20 See United States v. Mays, 466 F.3d 335, 342 (5th Cir. 2006) (“Possession of a 

controlled substance is undeniably a lesser-included offense of possession with intent to 

distribute.”) (citing United States v. Garcia-Duarte, 718 F.2d 42, 47 (2d Cir. 1983)). Indeed, 

the case that the district court is presumed to have relied on for its erroneous conclusion

includes a footnote stating the same. See United States v. Ambriz, 727 F.3d 378, 381 n.4 (5th 

Cir. 2013). 
No. 23-50007

12

As to the second prong, “[w]e normally review for abuse of discretion 

a district court’s determination of this issue.”21 But “[b]ecause the district 

court in this case erroneously concluded that it could not give [Crittenden’s] 

requested lesser-included-offense instruction” on account of its legal error at 

the first prong, “it did not make a specific finding as to the second prong of 

the test.”22 In this circumstance, United States v. Lucien directs our inquiry.23

In Lucien, we looked to the record as a whole to determine whether a rational 

jury could convict a defendant of the lesser offense yet acquit him of the 

greater. There, the court first looked at the amount of cocaine base involved. 

Having determined that 16.48 grams was not inconsistent with personal use, 

the court then turned to other evidence of intent to distribute. The court 

reasoned that each piece of evidence found in the apartment, including 

aluminum foil wrappers, around $1200 in cash, and two guns, was not 

dispositive of intent to distribute or inconsistent with the defendant’s 

personal use. Even with this evidence, a reasonable juror could have found 

the defendant guilty of simple possession but acquit him of intent to 

distribute. Thus, the court found that the defendant was entitled to a lesserincluded-offense instruction.24

Here, while following the Lucien court’s reasoning, we find the facts 

distinguishable from those in Lucien and the evidence of Crittenden’s intent 

overwhelming. Following Lucien’s lead, we first look to the amount of 

_____________________

21 United States v. Lucien, 61 F.3d 366, 374 (5th Cir. 1995) (citation omitted). 

22 Id.

23 See also United States v. Jackson, 27 F.4th 1088, 1091 (5th Cir. 2022) (“Even 

when the district court has erred, we may affirm if another ground in the record supports 

its judgement. The district court need not have reached that ground . . . but it must have 

been advanced below.”) (citations and quotations omitted).

24 Id. at 374–77.
No. 23-50007

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methamphetamine Crittenden possessed and whether it is indicative of 

personal use or distribution.25 Here, the evidence established that Crittenden 

retrieved approximately ten pounds (4.2 kilograms) of methamphetamine 

from the total stock at the Byway Drive house. This is over 250 times the 

amount in Lucien and is worth approximately $35,000. The quantity of 

methamphetamine Crittenden possessed exceeds the realm of conceivable 

personal use and, along with its value, is indicative of distribution.26

Unlike in Lucien, the amount here is, by itself, enough to indicate 

intent; yet there is “other evidence that . . . indicates possession with intent 

to distribute.”27 Specifically, when it came time for Dominguez to deliver ten 

bundles of methamphetamine to the buyer, Crittenden drove to the house 

where he stored the drugs and retrieved the exact type and amount of drugs 

from the large stash, all packed in distributable quantities. Though just a 

small number of the unmarked bundles in the attic contained 

methamphetamine, Crittenden picked the correct drug. And after Crittenden 

retrieved the particular drug that Dominguez had agreed to sell, Dominguez 

_____________________

25 Id. at 374–75 (gathering cases that looked primarily at quantity in its analysis of 

intent to distribute).

26 See United States v. Munoz, 957 F.2d 171, 174 (5th Cir. 1992) (noting that proof 

of intent to distribute may be inferred from drug value and quantity); United States v. 

Henley, 502 F.2d 585, 586 (5th Cir. 1974) (holding that evidence that defendant possessed 

large quantity of drugs justified refusal to instruct jury on lesser-included offense of simple 

possession); United States v. Brooks, 550 F. App’x 197, 198 (5th Cir. 2013) (unpublished) 

(holding that 3.9 grams of methamphetamine found in proximity to other drugs, drug 

paraphernalia, and currency supported inference of intent to distribute); cf. United States 

v. Skipper, 74 F.3d 608, 611 (5th Cir. 1996) (holding that 2.89 grams of crack cocaine is “not 

clearly inconsistent with personal use”); United States v. Hunt, 129 F.3d 739, 742 (5th Cir. 

1997)(holding that 7.998 grams of crack cocaine was “insufficient as a matter of law to infer 

intent”).

27 Lucien, 61 F.3d at 375; see also United States v. Harrison, 55 F.3d 163, 165, 168 (5th 

Cir. 1995) (considering evidence such as the presence of a loaded weapon and cash in the 

same drawer as 49 grams of crack cocaine “cookies”).
No. 23-50007

14

arrived at the house, Crittenden handed the drugs to Dominguez, and 

Dominguez drove to the location of the sale. We said in Lucien, “[i]f the 

amount of the cocaine base seized at the Manor Road apartment was 

significantly greater or if there was additional evidence showing distribution, 

such as (by way of example only) testimony tending to indicate that sales or 

distributions of some kind were being made . . . the evidence might support 

the district court’s refusal to give the lesser-included instruction of simple 

possession.”28 That is precisely what we have here. The overwhelming 

evidence—including the substantial quantity of drugs, the distributable 

quantities of the drugs, and Crittenden’s correct choice of the exact drug and 

quantity Dominguez agreed to sell—suggests a reasonable jury could not find 

the evidence insufficient to find an intent to distribute.29

Crittenden also argues without citation to authority that the evidence 

of his intent to distribute may be negated by testimony that Crittenden “just 

wanted to get the drugs out of his house.” This argument does not follow. 

The drugs were already out of Crittenden’s family home when he went to the 

Byway Drive house on January 17, 2017, and distributed roughly ten pounds 

of methamphetamine to Dominguez for her further distribution to the buyerinformant. It is the January 17 conduct that forms the basis of Count 2’s 

charge of possession with intent to distribute. That Crittenden “just wanted 

to get the drugs out of his house” does nothing to explain away the 

_____________________

28 Lucien, 61 F.3d at 376.

29 The dissent rightly notes that “[a] recognition that a jury could convict on the 

greater offense does not negate that a jury could have failed to find Crittenden’s intent to 

distribute.” Post, at 19. True enough. But in this case, the evidence—and it is 

overwhelming—compels the conclusion that no reasonable jury could have rationally 

found Crittenden guilty of simple possession. The evidence showing his intent to distribute 

does not merely “support the jury’s conviction.” Simply put, there are no sound concerns 

about what happened, and no rational jury looking at this overpowering record could have 

found Crittenden guilty only of the lesser offense. Id.
No. 23-50007

15

compelling evidence of his intent to distribute on January 17 from the Byway 

Drive house. 

The amount of methamphetamine involved and the circumstances 

surrounding the transfer precludes a reasonable jury from convicting 

Crittenden for simple possession while acquitting him for possession with 

intent to distribute. And accordingly, the district court did not err in denying 

a lesser-included-offense instruction for simple possession.

IV

For the foregoing reasons, we AFFIRM the district court’s

acceptance of Crittenden’s conflict-free-counsel waiver and its refusal to give 

the lesser-included offense instruction on simple possession, and

REMAND for further proceedings not inconsistent with this opinion.
No. 23-50007

16

James L. Dennis, Circuit Judge, concurring in part and dissenting in part:

I concur in the panel majority’s holding that Samuel Crittenden validly waived his right to conflict-free counsel before his criminal trial. Ante, at 

7–10 (majority opinion). But I depart from its conclusion that “the district 

court did not err in denying” Crittenden “a lesser-included-offense instruction for simple possession.” Id. at 15. Because, from the evidence ignored by 

the panel majority, a jury could rationally find Crittenden guilty of simple 

possession of methamphetamine yet acquit him of intending to distribute, 

Crittenden was entitled to a jury instruction on the lesser offense of simple 

possession. The district court’s failure to give that instruction was reversible 

error—Crittenden’s conviction must be overturned. I respectfully dissent.

* * *

Relevant to this appeal, a jury convicted Crittenden of possession with 

intent to distribute 500 grams or more of methamphetamine (“Count 2”). 

Crittenden challenges the district court’s denial of a lesser included offense 

jury instruction for simple possession of methamphetamine. “Rule 31(c) of 

the Federal Rules of Criminal Procedure provides in relevant part that a 

‘defendant may be found guilty of an offense necessarily included in the 

offense charged.’” United States v. Browner, 889 F.2d 549, 550 (5th Cir. 1989) 

(quoting Fed. R. Crim. P. 31(c)). “This rule entitles a defendant to a jury 

instruction on any lesser included offense” when: “(1) the elements of the 

lesser offense [are] a subset of the elements of the charged offense; and (2) 

the evidence at trial [is] such that a jury could rationally find the defendant 

guilty of the lesser offense, yet acquit him of the greater.” Id. at 550–51 

(citations omitted).

In this case, Browner’s precepts obligated Crittenden to first show that 

the elements of simple possession of methamphetamine under 21 U.S.C. § 

844(a) were a subset of the elements of possession with intent to distribute 
No. 23-50007

17

methamphetamine under 21 U.S.C. § 841(a)(1). See United States v. Lucien, 

61 F.3d 366, 372–74 (5th Cir. 1995) (applying Browner in the context of a §

844(a) simple possession lesser included offense jury instruction); United 

States v. Deisch, 20 F.3d 139, 143 (5th Cir. 1994) (same). Second, he was 

required to show that, based on the evidence presented at trial, a rational jury 

could have acquitted him of intending to distribute and convicted him of 

simple possession. Lucien, 61 F.3d at 372, 374; Deisch, 20 F.3d at 142. “While 

a defendant’s request for a lesser-included offense charge should be freely 

granted, there must be a rational basis for the lesser charge and it cannot serve 

merely as a device for defendant to invoke the mercy-dispensing prerogative 

of the jury.” United States v. Collins, 690 F.2d 431, 438 (5th Cir. 1982), cert. 

denied, 460 U.S. 1046 (1983) (internal quotation marks and citation omitted).

Only the second prong is at issue because our circuit precedent holds, 

and all agree, that simple possession is a lesser included offense of possession 

with intent to distribute. See United States v. Mays, 466 F.3d 335, 342 (5th 

Cir. 2006) (“Possession of a controlled substance is undeniably a lesserincluded offense of possession with intent to distribute.” (citing United States 

v. Garcia-Duarte, 718 F.2d 42, 47 (2d Cir. 1983)). Accordingly, the district 

court committed legal error by ruling that that simple possession was not a 

lesser included offense of possession with intent to distribute.

Turning to the second prong, “[w]e normally review for abuse of 

discretion a district court’s determination of this issue.” Lucien, 61 F.3d at 

374 (citation omitted). This is not a normal case, however, “[b]ecause the 

district court in this case erroneously concluded that it could not give 

[Crittenden’s] requested lesser-included offense instruction” on account of 

its legal error at the first prong, so “it did not make a specific finding as to the 

second prong of the test.” Id. “The record, however, reflects that the district 

court” voiced serious concerns about the intent to distribute element of 

Count 2 at the close of trial; record evidence that the panel majority blinks. 
No. 23-50007

18

Id.; ROA.808–09. That the capable district judge—who presided over the 

trial, heard the testimony, and saw the evidence—harbored doubts about the 

intent to distribute element compellingly “implies that the district court 

thought . . . the evidence at trial raised the possibility that a rational jury 

could” have acquitted Crittenden of Count 2. Lucien, 61 F.3d at 374.

What’s more, the record bears out that the issue of intent to distribute 

was “clearly in dispute.” Id. at 377 n.16; Collins, 690 F.2d at 437; Browner, 

889 F.2d at 554. At trial, Crittenden put on evidence that his involvement 

with the methamphetamine was limited and that he “did not want anything 

to do with the drugs [that] his wife[,] [Carla Dominguez,] brought into their 

home.” Crittenden’s evidence further supported that he only sought to be 

rid of the drugs and that he had no interest in, or intent to distribute, them. 

See, e.g., ROA.665 (testimony from informant that he did not know 

Crittenden); ROA.756–57; ROA.763–64; ROA.776–77; ROA.795–803 

(testimony by Dominguez as to Crittenden’s non-involvement); cf.

Government Br. at 28 (admission by Government that there was evidence 

that Crittenden moved the drugs to get them away from his family). Indeed, 

contrary to the majority’s assertion, Crittenden has never posited that the 

methamphetamine he possessed was intended for his personal use; instead, 

his theory has been all along that he only sought to get the drugs away from 

his family. See, e.g., ROA.492–94 (opening statement); ROA.841–50 (closing 

argument); Ante, at 13 (inquiring whether the quantity of drugs possessed is 

“indicative of personal use or distribution”). Crittenden presented evidence

that he had no knowledge of his wife’s activities and handled the drugs to 

remove them from his home and, ultimately, to dispose of them by retrieving 

them for Dominguez. See, e.g., ROA.756–57; ROA.763–64; ROA.776–77;

ROA.795–803 (testimony by Dominguez as to Crittenden’s role). As our en 

banc court observed in a prior iteration of this case, Crittenden’s wife in fact 

testified consistent with this theory that he “‘had nothing to do with’ the 
No. 23-50007

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drugs.” United States v. Crittenden, 46 F.4th 292, 294 (5th Cir. 2022) (en 

banc). The panel majority’s analysis wholesale disregards this evidence. 

Ante, at 12–15.

Instead, the Government and majority emphasize that, post-verdict,

the district court found an intent to distribute could be inferred from the 

quantity and value of methamphetamine possessed on January 17 and the 

circumstances leading up to Crittenden’s arrest. But that does not fully 

address the jury instruction issue here. Lucien, 61 F.3d at 376. Although the 

evidence is undoubtedly sufficient to convict Crittenden of possession with 

intent to distribute, the issue is whether a rational jury nonetheless could 

acquit him of the greater offense and find him guilty of simple possession. Id.; 

Browner, 889 F.2d at 551. The majority flips the standard on its head by only 

searching for evidence to support the jury’s conviction. Ante, at 14 n.29. A 

recognition that a jury could convict on the greater offense does not negate 

that a jury could have failed to find Crittenden’s intent to distribute. I agree 

with Crittenden’s defense that, from the evidence outlined above, a jury 

could rationally find the defendant guilty of the lesser offense yet acquit him 

of the greater. Browner, 889 F.2d at 551; Garcia-Duarte, 718 F.2d at 47. In a 

case like this one, “it is the jury’s province to determine whether the 

evidence demonstrates simple possession or possession with intent to 

distribute.” Lucien, 61 F.3d at 376 (citations omitted); cf. Spiller v. Harris 

Cnty., 113 F.4th 573, 582 (5th Cir. 2024) (Willett, J., concurring) (noting 

that “three appellate judges” should decline to “play[] junior-varsity jury”). 

Crittenden was therefore entitled to a jury instruction on the lesser included 

offense of simple possession, and the district court’s failure to give that 

instruction was reversible error. Crittenden’s conviction must be overturned.

I respectfully dissent.