UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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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