United States v. Jabrell Smith

21 F.4th 122

• Court: Court of Appeals for the Fourth Circuit
• Decided: December 17, 2021
• Docket: 20-4290
• Status: Published

Opinion

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-4290

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

JABRELL CRAIG SMITH,

Defendant - Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Jr., District Judge. (1:19-cr-00312-WO-1)

Argued: September 24, 2021 Decided: December 17, 2021

Before WILKINSON, WYNN, and HARRIS, Circuit Judges.

Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge Harris joined. Judge Wynn wrote an opinion dissenting in part and dissenting from the judgment.

ARGUED: John Scott Coalter, COALTER LAW P.L.L.C, Greensboro, North Carolina, for Appellant. John McRae Alsup, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee. ON BRIEF: Matthew G.T. Martin, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee. WILKINSON, Circuit Judge:

A jury convicted Jabrell Craig Smith of possessing heroin with intent to distribute

and three offenses related to possessing a firearm. On appeal, Smith claims that the

evidence against him should have been suppressed, that the district court abused its

discretion in failing to give a lesser-included offense instruction, and that there was

insufficient evidence supporting the jury’s guilty verdict. For the following reasons, we

affirm Smith’s convictions.

I.

A.

On May 29, 2017, the Greensboro Police Department Street Crimes Unit (SCU) was

conducting surveillance at a nightclub called Lucky 7’s. Vincent Legrande, whom SCU

knew to be a convicted felon, was inside. At approximately 2:00 a.m., SCU officers saw

Legrande and two others, later determined to be Smith and Ja’kirus Staton, leave Lucky

7’s in a black Chevrolet Malibu. Staton was driving, Smith was in the front right seat, and

Legrande was in the back right seat.

Corporal James Buchanan and Detective Robert Mayo began following the Malibu

in an unmarked police car. Buchanan radioed another SCU officer to run the license plate,

which he identified as “Eagle, Eagle, Lincoln 7755,” or “EEL 7755.” The search for that

plate showed that it was registered to a different car, leading the SCU team to believe that

the Malibu was being driven with a fictitious registration. There is no dispute that

Buchanan inadvertently transposed one letter while reading the license plate and that the

Malibu had a valid license plate reading “ELL 7755.”

2 Mayo and Buchanan followed the Malibu to a gas station, where they were

eventually joined by several other SCU units. As they pulled into the parking lot, they saw

Legrande get out of the back right passenger seat and walk over to a nearby car. Staton and

Smith were already inside the convenience store.

The SCU units pulled around the Malibu and activated their blue lights, began

exiting their cars, drew their guns, and yelled at Legrande to keep his hands up. Buchanan

approached the Malibu and shined a flashlight inside. He saw a handgun protruding out

from underneath the back of the front passenger seat to the footwell of the right-rear seat

where the officers had observed Legrande. Detective Jason Lowe later observed another

firearm, an Intratec 9mm handgun, on the floorboard of the Malibu’s front-right passenger

seat, where Smith had been sitting.

Meanwhile, Mayo and Sergeant Kory Flowers went inside the convenience store.

Smith was standing in front of the cashier as if to pay for merchandise; Staton was standing

behind Smith in line. Flowers approached Smith, advised him that he was being detained

because of a fictitious tag, and placed him in handcuffs. Smith responded that the car was

not his. At this time, neither officer knew about the handguns or the identities of Staton or

Smith.

Officers detained Smith outside for about thirty minutes while they searched the

Malibu. The officers seized both handguns, two cell phones, and a bag of heroin. Upon

finding the heroin in the front-right door pocket, they arrested Smith and told him that he

was being charged with trafficking. Smith asked how much the heroin weighed, and

officers responded that it weighed 4.5 grams. Smith protested several times that the bag

3 weighed a gram and that officers should have weighed the heroin without the packaging,

rendering a weight of 3.5 grams. A later laboratory test showed that the heroin weighed

3.32 grams.

B.

A grand jury indicted Smith of possessing with intent to distribute heroin, in

violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(C); possessing a firearm in furtherance of

a drug trafficking crime, in violation of 18 U.S.C § 924(c); being a felon in possession of

a firearm, in violation of 18 U.S.C. § 922(g)(1) and 924(a)(2); and possessing a firearm

subject to regulation under the National Firearms Act, in violation of 26 U.S.C. §§ 5845(a)

and (e), 5861(d), and 5871.

Before trial, Smith filed a motion to suppress the evidence found in the car. He

argued that officers lacked reasonable suspicion or probable cause to justify the seizure and

that the subsequent search of the car violated his reasonable expectation of privacy. The

district court denied the motion, finding that both the search and seizure of the car were

lawful and that Smith lacked standing to raise a Fourth Amendment challenge.

Smith was then tried before a jury. The government presented, among other things,

testimony of the SCU officers, DNA evidence linking Smith to the Intratec handgun, and

videos depicting Legrande and Smith holding handguns. It also presented text messages

found in a search of Smith’s cell phone and expert testimony concluding that the heroin

was unlikely to be for personal use.

At the close of the government’s evidence, Smith moved for a judgment of acquittal

due to insufficient evidence, which the district court denied. The defense then rested. Smith

4 requested a jury instruction on simple possession of heroin, a lesser-included offense of the

possession with intent to distribute charge. The district court also denied that motion. The

jury returned a guilty verdict on all counts, and Smith was sentenced to 138 months

imprisonment.

II.

Smith first argues that the evidence against him—the heroin, the two firearms, and

the cell phone—should have been suppressed because the search and seizure of the Malibu

were based on an unreasonable mistake about its license plate. Yet we must initially

consider whether Smith even has standing to raise this Fourth Amendment challenge.

Smith puts forth two grounds for standing: first, that he can challenge the search because

he had a legitimate expectation of privacy in the Malibu and, alternatively, that he can

challenge the seizure because he was also seized along with the car. We reject both theories.

Because we hold that Smith lacks standing, we have no need to pass on the merits of his

Fourth Amendment claim.

In assessing a district court’s decision on a motion to suppress, we review factual

findings for clear error and legal determinations de novo. United States v. Lewis, 606 F.3d

193, 197 (4th Cir. 2010). When, as here, a district court has denied a suppression motion,

we view the evidence in the light most favorable to the government. United States v.

Palmer, 820 F.3d 640, 648 (4th Cir. 2016). This entails giving “due weight to inferences

drawn from those facts by resident judges and law enforcement officers.” Lewis, 606 F.3d.

at 197 (internal citation omitted).

5 A.

Fourth Amendment standing doctrine is carefully tailored to the privacy rights the

Amendment was designed to protect. Smith claims he had a legitimate expectation of

privacy in the Malibu that allows him to challenge its search. The Fourth Amendment

protects the “right of the people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures.” U.S. Const. amend. IV. The text signals that

“the Fourth Amendment is a personal right that must be invoked by an individual.”

Minnesota v. Carter, 525 U.S. 83, 88 (1998). So we must ask whether a person “has had

his own Fourth Amendment rights infringed by the search and seizure which he seeks to

challenge.” Rakas v. Illinois, 439 U.S. 128, 133 (1978). To successfully bring that

challenge, a defendant must show both “that he personally has an expectation of privacy in

the place searched, and that his expectation is reasonable.” Carter, 525 U.S. at 88; see also

United States v. Castellanos, 716 F.3d 828, 832 n.3 (4th Cir. 2013). The defendant bears

the burden of demonstrating his legitimate expectation of privacy in the area searched.

Rawlings v. Kentucky, 448 U.S. 98, 104 (1980).

A legitimate expectation of privacy is not established solely through legitimate

presence in a particular place. Rakas, 439 U.S. at 148. Nor does ownership of the item

seized, by itself, confer a privacy interest in the area searched. United States v. Manbeck,

744 F.2d 360, 374 (4th Cir. 1984). Both legitimate presence and ownership of the items

found should of course be considered in analyzing a legitimate expectation of privacy. See

Rakas, 439 U.S. at 148; Manbeck, 744 F.2d at 374. But if a passenger asserts neither a

property nor a possessory interest in the car and simultaneously disavows any interest in

6 the seized objects, that passenger normally has no legitimate expectation of privacy. United

States v. Rusher, 966 F.2d 868, 874 (4th Cir. 1992).

We hold that Smith lacked a legitimate expectation of privacy in the Malibu. To

start, Smith claimed no ownership interest in the Malibu. In fact, Smith explicitly

disclaimed ownership when he told Flowers that it was Staton’s car. Merely being in a car

with the permission of its owner does not confer a legitimate expectation of privacy. Rakas,

439 U.S. at 148. To see why, imagine that Staton excluded Smith on his next night out. Or

suppose that Staton picked up other friends at the gas station, leaving Smith without a ride.

In neither situation could Smith complain that he was entitled to be a passenger. Therefore,

there was no legitimate expectation that the car was his private space. Smith was merely

an invited guest, and an invited guest can become uninvited at the owner’s pleasure.

Nor does Smith claim ownership or possession of the weapons seized. At least

concerning these items, Smith is in no better position than the passengers in Rakas, who

conceded they were simply passengers and did not assert that they owned the objects seized

(there, a rifle and shells). See Rakas, 439 U.S. at 130. Because “[t]hey asserted neither a

property nor a possessory interest in the automobile, nor an interest in the property seized,”

the Supreme Court held that “petitioners’ claims must fail.” Id. at 148.

Nevertheless, Smith does claim ownership of the cell phone in the Malibu’s center

console and argues that leaving his phone in the car demonstrates his legitimate expectation

of privacy. We agree this is “one fact to be considered,” Rawlings, 448 U.S. at 105, but it

does not by itself grant Smith standing. This is especially so given that Smith was no longer

in the car when it was stopped. After leaving the Malibu, Smith lost control over his phone:

7 others could move or look through what had been left behind. When someone leaves

personal belongings behind in another’s car, he assumes the risk that the car’s owner will

consent to a search of the car or that the car’s contents will come into plain view of the

police. See, e.g., United States v. Santillan, 902 F.3d 49, 62–63 (2d Cir. 2018). And since

Smith claims that he knew police were following the Malibu, he was at least aware of the

possibility that police would search the car. Fundamentally, “[a] person who cannot assert

a legitimate claim to a vehicle cannot reasonably expect that the vehicle is a private

repository for his personal effects.” United States v. Hargrove, 647 F.2d 411, 412 (4th Cir.

1981).

It bears repeating: Smith was not a passenger of the Malibu at the relevant time. He

was in the convenience store, not the car. This court has recognized that both bystanders

and recent passengers have lesser privacy interests than passengers. See United States v.

Rose, 3 F.4th 722, 730 (4th Cir. 2021) (no standing for one with “no greater privacy

interest . . . than an airport bystander”); United States v. Howard, 413 F. App’x 559, 562

(4th Cir. 2005) (no standing for recent passenger). And with good reason. After all, “Fourth

Amendment rights are personal rights which . . . may not be vicariously asserted.” Rakas,

429 U.S. at 133–34 (quoting Alderman v. United States, 394 U.S. 165, 175 (1969)). So “[a]

person who is aggrieved by an illegal search and seizure only through the introduction of

damaging evidence secured by a search of a third person’s premises or property has not

had any of his Fourth Amendment rights infringed.” Id. at 134.

Smith claims he had only briefly stepped into the convenience store to get the driver

and the Malibu was still running, so he should be treated like a passenger. Yet this glosses

8 over the key point: Smith left the Malibu. The police did not stop the Malibu while Smith

was in the car; nor was he just getting out as the police arrived. Instead, Smith was in the

convenience store, well away from the Malibu. Though Smith claims that when he left the

Malibu he intended to return, subjective intentions are not sufficient to establish a

legitimate expectation of privacy. Otherwise, defendants could create impenetrable zones

of privacy based solely on their say-so.

At any rate, Smith’s intentions changed once he saw the police activity in the

parking lot. The district court found that inside the convenience store, Smith “was

attempting to deceptively ignore the activity in the parking lot as if he had nothing to do

with [the Malibu] and was simply a patron unaware of and unconcerned by the activity

outside the store.” J.A. 291. We see no clear error in this finding, as Smith admitted that

he had no money on him yet picked up a bag of chips and some candy because he just

wanted to “throw [the police] off, like I was basically in there to buy something.” J.A. 191–

92. Smith cannot initially pretend to be unassociated with the Malibu and then later declare

a privacy interest in it. Such conduct suggests that his assertion of privacy is contrived

rather than legitimate.

An Amendment whose touchstone is one of reasonableness, see U.S. Const. amend.

IV, will often be amenable to a totality of the circumstances test. Though it was Smith’s

burden to prove that he had a legitimate expectation of privacy, see Rusher, 966 F.2d at

874, he presented no evidence about whether he had previously used the Malibu, whether

he had a key, or whether he regularly stored personal belongings in the vehicle. So there is

no “special circumstance” that would give Smith a greater expectation of privacy than

9 passengers normally have. Id. Add Smith’s non-ownership of the car, activity some

distance away from the car, deceptive conduct with respect to the car, and the totality of

the circumstances indicates that Smith did not have a legitimate expectation of privacy in

the Malibu.

Smith next argues that even if he lacks a legitimate expectation of privacy to

challenge the search of the Malibu, he can still challenge the Malibu’s seizure because, he

says, stopping it based on a mistake about the license plate was unreasonable. But once

again, Smith lacks standing. Smith was not in the Malibu when it was seized, and so he is

not in a position to challenge its seizure.

A seizure occurs where, “in view of all the circumstances surrounding the incident,

a reasonable person would have believed that he was not free to leave.” United States v.

Foster, 824 F.3d 84, 88 (4th Cir. 2016) (quoting United States v. Slocumb, 804 F.3d 677,

681 (4th Cir. 2015)). “A person is seized within the meaning of the Fourth Amendment

‘when the officer, by means of physical force or show of authority, has in some way

restrained the liberty of a citizen.’” Varner v. Roane, 981 F.3d 288, 292 (4th Cir. 2020)

(quoting Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968)). Under this definition, the Malibu was

seized when the two police cars pulled in behind it. But Smith was well away from the car

at that time; he was not a part of the seizure he wishes to challenge.

Smith contends that he was part of the seizure of the car despite his distance away

from it because a reasonable person in his position would not have believed that he was

free to leave the gas station once police pulled in behind the Malibu. He notes that at least

10 seven to eight officers were present in the parking lot and that those officers made an

overwhelming show of force with ballistic vests, drawn guns, and flashing blue lights. And

he claims that he submitted to this show of authority outside by staying inside the

convenience store instead of attempting to flee.

At the outset, Smith’s argument conflates two very different things: the seizure of a

car in a parking lot and the seizure of a pedestrian in a store. Just because a car has been

seized does not mean that any nearby pedestrian has also been seized. See United States v.

Mendenhall, 446 U.S. 544, 556–57 (1980) (differentiating between seizure of automobile

and seizure of pedestrian). When police pulled in behind the Malibu, Smith was in the

convenience store. As the district court noted, and Smith acknowledged, he had walked

inside before seeing any emergency lights or police officers in the parking lot. See J.A.

189–90, 287. So we must focus on Smith’s rights as a pedestrian. See United States v.

Allison, 398 F. App’x 862, 864 (4th Cir. 2010).

Once we do that, it becomes irrelevant that Smith was recently a passenger in the

Malibu. While the Supreme Court has held that passengers in cars are seized during traffic

stops, see Brendlin v. California, 551 U.S. 249, 251 (2007), it has not extended that holding

to former passengers who have since exited the vehicle. Brendlin’s holding rests in part on

the recognition that once a police officer stops a car, “a sensible person would not expect

a police officer to allow people to come and go freely from the physical focal point of an

investigation into faulty behavior or wrongdoing.” Brendlin, 551 U.S. at 257. The physical

focal point of the investigation here was the Malibu, not the entire gas station or the

associated convenience store. While it may well be that a person standing next to the

11 Malibu would not have felt free to leave, the same cannot be said for every individual at

the gas station. So a person at the next gas pump would not have had her freedom

restrained; nor would a customer who was inside buying a Snickers candy bar. The district

court found Smith fell into this latter category: Smith was “free to move about” the store,

“free to pretend to purchase merchandise,” and “free to interact with the cashier.” J.A. 295.

Smith did not have his liberty restrained in the convenience store, and no more has standing

to challenge the Malibu’s seizure than any other customer there.

Citing United States v. Jones, 678 F.3d 293 (4th Cir. 2012), Smith makes much of

the fact that he was aware that police were following the Malibu when it pulled into the

gas station. But Jones did not give determinative weight to a defendant’s awareness of

police presence; it simply found a seizure given the “totality of the facts.” Id. at 305. More

importantly, Jones dealt with a driver “who had just emerged from and was still standing

by the driver’s door” when police approached. Id. at 297. Nothing in Jones suggests that

the two passengers there—like Smith here—were seized when they walked away from the

car before the police approached. See id. at 297, 302–03. In fact, Jones recognized that

those passengers were “free to walk away,” thus implying the passengers were not seized

even though the driver was. Id. at 302.

Smith similarly claims his awareness of the police meant that he “was anything but

an ordinary pedestrian buying an item at the gas station.” Appellant’s Br. at 26. As

mentioned above, after reviewing body camera footage and observing Smith’s testimony,

the district court found that Smith attempted to convince police that he was indeed an

ordinary pedestrian buying an item at the gas station. See J.A. 291. The district court’s

12 finding indicates that Smith did not actually submit to the police’s show of authority by

staying inside. Staying inside was instead a deceptive attempt to avoid police scrutiny, as

attempting to flee certainly would have drawn SCU attention. It also reinforces the fact that

Smith was still at liberty to move through the store after the Malibu was seized. Smith

could pretend to be a regular patron precisely because his freedom had not yet been

restrained. As such, Smith cannot challenge the seizure of the Malibu.

Our holding here makes sense in terms of those basic interests the Fourth

Amendment was meant to protect. Smith had neither a privacy interest in the car nor a

personal interest in being free from detention since he was nowhere in or near the car at

the time of its seizure. Thus, Smith lacks standing and his motion to suppress was properly

denied.

III.

Smith also challenges the district court’s refusal to instruct the jury on the lesser-

included offense of simple possession under 21 U.S.C. § 844. We review a district court’s

decision not to give a jury instruction for abuse of discretion. United States v. Russell, 971

F.2d 1098, 1107 (4th Cir. 1992).

A “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). But he “is not entitled to a

lesser-included offense instruction as a matter of course.” United States v. Wright, 131 F.3d

1111, 1112 (4th Cir. 1997). Rather, district courts should ask whether “proof on the element

13 that differentiates the two offenses” is “sufficiently in dispute” to necessitate instructing

the jury on the lesser offense. United States v. Baker, 985 F.2d 1248, 1258–59 (4th Cir.

1993). Such proof may be “sufficiently in dispute” when there is evidence of “sharply

conflicting testimony” on that element or, in the absence of express conflict, when “the

conclusion as to the lesser offense fairly may be inferred from the evidence presented.” Id.

at 1259 (quoting United States v. Medina, 755 F.2d 1269, 1273 (7th Cir. 1985)). In either

case, the district court must consider the totality of the evidence presented.

The element that differentiates simple possession from drug trafficking is an intent

to distribute. Compare 21 U.S.C. § 841(a)(1) with id. § 844. The question before the district

court was therefore whether Smith’s intent was sufficiently in dispute that a jury could

reasonably find that he possessed the heroin but had no intent to distribute it. See United

States v. Seni, 662 F.2d 277, 285 (4th Cir. 1981). There is no perfect demarcation between

drug users and distributors—many are both—and district courts must enjoy discretion in

policing this line. The district court here, “looking at all the evidence” presented throughout

the trial, J.A. 835, concluded that Smith’s intent to distribute was not sufficiently in dispute

to demand submitting the simple possession offense to the jury. That conclusion was not

an abuse of its discretion. While no one factor alone rules out the possibility of simple

possession, the trial court concluded that, taken in toto, the evidence of mere possession

here was weak, and that of intent to distribute was powerful.

The first factor the district court considered was the quantity of heroin. Smith was

found with 3.32 grams of heroin—between eleven and thirty-two doses. Viewed in

isolation, the amount of heroin is not dispositive; this is not a case where it is “so large as

14 to rule out the possibility of a finding of simple possession” as a matter of law. United

States v. Levy, 703 F.2d 791, 793 & n.7 (4th Cir. 1983); see also Seni, 662 F.2d at 285.

Indeed, the district court correctly recognized that this was not “such a large quantity of

heroin that the quantity alone in and of itself” precluded simple possession. J.A. 834.

Even so, it found that the relatively large quantity in these circumstances was still

probative of Smith’s intent. While it might be theoretically possible that someone would

possess this quantity for personal use, the government’s expert testified it was highly

unlikely. This is especially true given that Smith was arrested immediately after departing

Lucky 7’s, and as the district court observed, it is “close to inconceivable that a heroin

addict . . . would take that entire quantity with him to go out to a nightclub.” J.A. 835. Even

if an addict did nothing but continuously inject heroin, it would still take two and a half

days to use the quantity in Smith’s possession. The government’s expert also testified that

the heroin cost more than a typical addict could afford and that a user would need an

immense amount of self-control to possess such a quantity without overdosing. The district

court did not abuse its discretion by considering these facts among the totality of the

evidence.

Additionally, the defendant’s specialized knowledge both of the heroin found here

and of state drug law is revealing. Upon his arrest, Smith was told that the heroin weighed

4.5 grams and that he would be charged with trafficking. In response Smith repeatedly

protested that the bag weighed one gram and the heroin only 3.5 grams—which, notably,

is less than North Carolina’s four-gram statutory threshold for trafficking. See N.C. Gen.

Stat. § 90-95(h)(4)(a). Smith’s acute awareness of the exact quantity of heroin in the car,

15 detailed knowledge about how much the packaging weighed, and apparent familiarity with

North Carolina drug trafficking laws all support the inference that he intended to distribute.

The district court next noted the presence of a firearm. This circuit has often

recognized that a firearm is much more likely to be present in a distributional scheme than

in an instance of mere possession. See, e.g., United States v. Fisher, 912 F.2d 728, 730–31

(4th Cir. 1990) (“[Defendant’s] ownership of handguns is additional circumstantial

evidence of his involvement in narcotics distribution” from which “the jury could infer

[his] intent to distribute.”); United States v. Ward, 171 F.3d 188, 195 (4th Cir. 1999) (“Guns

are tools of the drug trade.”). The firearm here was found in close proximity to the heroin,

and Smith’s DNA linked him directly to it. Due to “the unfortunate reality that drugs and

guns all too often go hand in hand,” the presence of both together is certainly probative of

intent to distribute. United States v. Lomax, 293 F.3d 701, 706 (4th Cir. 2002).

And that is not all. Perhaps the most significant evidence the district court

considered were Smith’s text messages on the day of his arrest. These conversations

strongly suggest that Smith intended to distribute the heroin in his possession that night.

One correspondent, for example, asked Smith that day, “You working bud?”, to which he

replied “Yeah.” Another asked, “How much for a half?” and he replied, “50”—the

approximate price of a half-gram of heroin. There were at least two other similar inquiries

that day—“Hey bud could you front a 40 for 100 Thursday?” and “Can I get 15?”—both

of which the government’s expert testified were references to purchasing narcotics.

Another two messages were sent to arrange meeting places: one saying, “I’m coming from

Thomasville. Where do you want to meet?” and the other coordinating to meet Smith at a

16 gas pump. One conversation, which took place only a few hours before Smith’s arrest,

arranged to put him in touch with three potential new customers. The government’s expert

testified that each of these messages was typical of an exchange between a drug dealer and

customer and concluded that Smith’s phone was likely being used to distribute drugs.

Finally, as the district court noted, there was “simply no evidence” of personal use

or simple possession to cut against the overwhelming evidence of intent to distribute. J.A.

835. Unlike other cases where we have required the jury instruction on simple possession,

Smith did not have any needles, bands, spoons, pipes, or other means of ingesting the

heroin. See Levy, 703 F.2d at 792 (requiring an instruction on simple possession where four

crack pipes were found at the defendant’s home). Nor did Smith claim to have an addiction

that would explain the large quantity of narcotics in his possession. See Baker, 985 F.2d at

1259 (requiring an instruction on simple possession where evidence made clear the

defendant was an addict and “an abuser, not a distributor, of cocaine”).

A defendant is not required to present, for example, evidence of the implements of

personal use to be entitled to a jury instruction on simple possession. As noted, even in the

absence of direct conflict in testimony, the instruction may still be appropriate if simple

possession “fairly may be inferred from the evidence presented.” Id. Evidence of personal

use or the lack thereof nonetheless remains relevant, alongside all other evidence of intent,

to this holistic inquiry. In Wright, for instance, we found that where there was significant

evidence of intent to distribute—presence in an area where drug dealing was common,

possession of tools to facilitate drug transactions, and large amounts of cash—combined

with the complete absence of any evidence of personal use, the district court did not abuse

17 its discretion in finding that simple possession could not be fairly inferred. 131 F.3d at

1113.

Other courts of appeals have agreed that the lack of affirmative evidence of personal

use “is not controlling,” since “[w]hat matters is what a jury could have concluded from

the evidence presented.” United States v. Hernandez, 476 F.3d 791, 800 (9th Cir. 2007).

And in making that determination, courts similarly look to “the evidence as a whole.”

United States v. Gibbs, 904 F.2d 52, 59 (D.C. Cir. 1990); see also United States v. Milk,

281 F.3d 762, 771 (8th Cir. 2002) (looking to all “the evidence presented at trial” to

conclude that intent to distribute was not “seriously call[ed] into question”). Other circuits

have thus required the lesser-included offense instruction—even when there was no

affirmative evidence of the implements of personal use—if the government did not present

any evidence of trafficking beyond a moderately large quantity of narcotics, such as

distribution tools, cash, firearms, or testimony that the defendant could not have personally

consumed that quantity. See, e.g., Hernandez, 476 F.3d at 800–01; Gibbs, 904 F.2d at 59;

United States v. Lucien, 61 F.3d 366, 376 (5th Cir. 1995). But those cases have also noted

that the district court might properly refuse the lesser-included offense instruction if there

was “additional evidence showing distribution.” Lucien, 61 F.3d at 376 & n.16; see also

Hernandez, 476 F.3d at 801. Accordingly, our sister circuits have not required the

instruction in cases with both substantial evidence of distribution and a paucity of evidence

suggesting mere personal use. See, e.g., Hernandez, 476 F.3d at 800 (citing United States

v. Vaandering, 50 F.3d 696, 703 (9th Cir. 1995)); Lucien, 61 F.3d at 374, 376 n.15 (citing

United States v. Harrison, 55 F.3d 163, 167–68 (5th Cir. 1995)); United States v. Smith,

18 990 F.3d 607, 613–14 (8th Cir. 2021); United States v. Lee, 68 F.3d 1267, 1273 & n.6 (11th

Cir. 1995).

Like those cases and Wright, here there was significant evidence of intent to

distribute—the moderately large quantity of heroin, Smith’s specialized knowledge of drug

trafficking weights, presence of the firearm, and the text messages—and no countervailing

evidence supporting an inference of personal use. It is all this evidence taken together, not

any one factor alone, that supports the district court’s conclusion that Smith’s intent was

not sufficiently in dispute to warrant a jury instruction on simple possession.

District courts must assess the strength of evidence when deciding whether to give

any jury instruction. In making such decisions, they are “entitled to substantial deference,

because a district court is much closer than a court of appeals to the pulse of the trial.”

Russell, 971 F.2d at 1104 (internal citation omitted). The word “discretion” underscores

this truth. While we can provide trial courts with boundary lines to cabin their discretion,

we cannot anticipate every circumstance they will encounter or attempt to perfectly script

their decisions. And given the district courts’ superior vantage point with respect to the

evidence presented, we must show them enough deference that we not reverse merely

because we might have come to a different result. See Koon v. United States, 518 U.S. 81,

99 (1996) (“[D]eference [is] owed to the judicial actor better positioned than another to

decide the issue in question.” (alterations adopted and citation omitted)); Henry J. Friendly,

Indiscretion About Discretion, 31 Emory L.J. 747, 754 (1982) (“[T]he trial judge has

discretion in those cases where his ruling will not be reversed simply because an appellate

19 court disagrees.”). We thus give space to the trial court’s discretion, asking only whether

the judge ran out of bounds.

The district court here was squarely in bounds. It stated and applied the correct legal

standard under Baker and Wright. See J.A. 834 (articulating the “sufficiently in dispute”

standard); J.A. 837 (considering the totality of the evidence). ∗ And it came to a reasonable

conclusion given all the evidence before it. We must defer to its assessment.

A word as to the dissent. Our friend is intent on foreclosing the slightest possibility

that there could be even a smidgeon of agreement between its position and our own. Not

only is there no planetary difference in our views; there is no disagreement between the

general propositions advanced by the dissent and the propositions upon which we have

relied. Of course a defendant is “entitled” to a lesser-included-offense instruction “if the

evidence would permit a jury rationally to find him guilty of the lesser offense and acquit

him of the greater.” Keeble, 412 U.S. at 208. Of course that standard is met if “proof on

the element that differentiates the two offenses [is] sufficiently in dispute to allow a jury

consistently to find the defendant innocent of the greater and guilty of the lesser offense.”

∗ Contrary to the dissent’s assertion, the district court did not “legally err[]” by resting on an incorrect reading of Wright. See Dissenting Op. at 31. As to any requirement of “affirmative evidence” of personal use to get a lesser-included instruction, the district court recognized that the issue was “not resolve[d].” J.A. 836 (quoting United States v. Hall, 397 F. App’x 860, 863 (4th Cir. 2010)). Accordingly, the district court “look[ed] at all the evidence,” J.A, 835, “the totality of the facts,” and “all th[e] circumstances,” J.A. 837, rather than simply asking whether the defendant had produced affirmative evidence of personal use. As our opinion today makes clear, the production of such evidence is not a prerequisite to getting a lesser-included possessory instruction.

20 Dissenting Op. at 33 (quoting Baker, 985 F.2d at 1258–59). Of course “a sufficient dispute

exists when the question of whether the element is met is ‘capable of two answers.’”

Dissenting Op. at 34 (quoting Baker, 985 F.2d at 1259; Levy, 703 F.2d at 793). And of

course there is universal agreement on the centrality of a jury’s role in resolving a “factual

‘dispute in the evidence.’” Dissenting Op. at 35 (quoting Levy, 703 F.2d at 793). With all

respect to our good colleague’s seeming relish for some apocalyptic clash (errors here,

there, and everywhere), our difference is grounded in the facts and evidence of this

particular case, and the simple question of whether the district court abused its discretion

in concluding that those facts did not justify the lesser-included instruction under this legal

standard.

We have said that “[t]he district court has no discretion to refuse to give a lesser-

included instruction” not just if “the defendant requests it,” but “if the evidence warrants

the instruction.” Baker, 985 F.2d at 1259 (emphasis added). What the dissent fails to

appreciate is that a criminal trial necessarily involves the interplay between judge and jury.

Some instruction has to be given to the jury. The jury cannot instruct itself; the only one

who can instruct it is the trial judge. And those instructions must be grounded to some

extent in the evidence before the jury, lest it have nothing to weigh. See Hopper v. Evans,

456 U.S. 605, 611 (1982) (“The jury’s discretion is thus channelled so that it may convict

a defendant of any crime fairly supported by the evidence.”). The trial judge must look at

the totality of the evidence to determine “if the evidence warrants the [lesser-included]

instruction.” Baker, 985 F.2d at 1259. There is no way around it.

21 In turn, the only party which can review that decision is the court of appeals. And

we are not to reconsider the decision de novo. It is inconceivable that the one who is

charged with “choreograph[ing] a trial” would not be entitled to the “broad discretion” that

is essential to its management. United States v. Tindle, 808 F.2d 319, 327 (4th Cir. 1986).

The dissent chides us for using the words “deference” or “discretion,” Dissenting Op. at

36, but the idea that the trial court lacks any meaningful discretion in these matters is simply

not followed by this or any other circuit. District judges enjoy “wide discretion” in dealing

with evidentiary matters generally. See, e.g., United States v. Abel, 469 U.S. 45 (1984);

United States v. Heyward, 729 F.2d 297, 301 n.2 (4th Cir. 1984). More specifically, the

great majority of circuits agree that we review a district court’s failure to give a lesser-

included instruction—based on its evaluation of the evidence—for abuse of discretion. See,

e.g., United States v. Busic, 592 F.2d 13, 25 (2d Cir. 1978); United States v. Vaquiz, 810

F. App’x 151, 155 (3d Cir. 2020); Russell, 971 F.2d at 1107; Lucien, 61 F.3d at 372; United

States v. Colon, 268 F.3d 367, 373 (6th Cir. 2001); United States v. McCullough, 348 F.3d

620, 624 (7th Cir. 2003); Milk, 281 F.3d at 768; Hernandez, 476 F.3d at 798; United States

v. Toledo, 739 F.3d 562, 568 (10th Cir. 2014); Lee, 68 F.3d at 1273. And “deference . . . is

the hallmark of abuse-of-discretion review.” Gen. Elec. Co. v. Joiner, 522 U.S. 136, 143

(1997). None of this is to imply that the district courts’ evidentiary rulings are sacrosanct,

only that appellate judges should show a certain degree of appreciation for the individual

who actually saw and heard the evidence in the course of conducting the trial.

The dissent instead conducts what walks and talks like de novo review,

impermissibly “substitut[ing] its judgment for that of the district court.” United States v.

22 Mason, 52 F.3d 1286, 1289 (4th Cir. 1995). Unlike rulings focused on a particular piece of

evidence, see, e.g., Fed. R. Evid. 403, 404, a ruling on instructions generally comes near

the conclusion of a trial, thus giving the trial court a comprehensive view of the proceeding.

In contrast to the holistic inquiry that the district court must and did undertake, the dissent

adopts a very singular focus, scrubbing each piece of evidence individually: for example,

noting that Smith’s knowledge of the drug weights might have come not from experience

but from simply overhearing the police, Dissenting Op. at 44–45; that the nearby gun does

not compel a finding of intent to distribute, id. at 45; that it is possible Smith did not send

the numerous text messages, id. at 46; and that the absence of spoons or needles does not

mean he could not ingest the heroin, id. at 46–47. Maybe so. But each of these things

certainly makes distribution more likely. And the district judge was entitled to consider all

of them in deciding whether the evidence warranted the lesser-included instruction.

Considering each piece of evidence in isolation neglects the force of evidence in

combination. And appellate review may not then pick the flower and ignore the garden.

The dissent succumbs to the dangers of selectivity in yet another way. It quite fails

to adopt a holistic view of precedent. It is apparent that the dissent favors Levy, on which

it places almost singular controlling weight. It is equally obvious that the dissent disfavors

Wright, another of our relevant precedents. But we are not at liberty to credit and discredit

precedent in such arbitrary fashion. To justify doing that, the dissent states that Levy

controls because it is the earlier precedent. Dissenting Op. at 38 (citing United States v.

Spinks, 770 F.3d 285, 290 (4th Cir. 2014)). But that rule only applies if there is “direct”

and “irreconcilable conflict” between the two precedents. McMellon v. United States, 387

23 F.3d 329, 333, 334 (4th Cir. 2004). Rather than readily finding direct conflict, the proper

approach is to harmonize circuit precedent. Bryan A. Garner et al., The Law of Judicial

Precedent § 36, at 300 (2016); see also Citizens for Resp. & Ethics in Washington v. Fed.

Election Comm’n, 993 F.3d 880, 893 (D.C. Cir. 2021) (“When faced with a claim of

conflicting precedents, we must whenever possible harmonize later decisions with existing

authorities to avoid creating unnecessary conflicts.”).

Wright is reconcilable with Baker and Levy, and we must thus take our guidance

from all the relevant precedents. In all three cases, the district judge was tasked with

determining whether “a jury [could] fairly infer from the evidence presented that [the

defendant] intended to possess the [narcotics] for his personal use,” and each canvassed

the totality of the evidence to make this determination. Wright, 131 F.3d at 1113; see also

Baker, 985 F.2d at 1259; Levy, 703 F.2d at 792. The courts came to opposite conclusions—

the lesser-included instruction was required in Baker and Levy, but not in Wright—due

only to the facts of each particular case. See Wright, 131 F.3d at 1113 (concluding that the

middling quantity of cocaine could not alone support an inference of personal use given

“the powerful evidence of distribution”); Baker, 985 F.2d at 1259–60 (concluding that the

evidence of addiction and financial means to buy in bulk could support an inference of

personal use, given the disputed credibility of prosecution witnesses); Levy, 703 F.2d at

792 (concluding that evidence of crack pipes at Levy’s home could support, and the

quantity was not so large as to rule out, an inference of personal use).

We have further harmonized these cases by rejecting squarely the more aggressive

reading of Wright, one that would require affirmative evidence of personal use to merit the

24 lesser-included jury instruction. Supra at 17–18. All three cases employ a standard, not a

bright-line rule. All three require looking at all the evidence in toto to determine if there is

“a substantial basis for an inference” of personal use before requiring a lesser-included

instruction. Levy, 703 F.3d at 793; see also Baker, 985 F.2d at 1259; Wright, 131 F.3d at

1113. As Professor Sullivan explained, standards “giv[e] the decisionmaker more

discretion than do rules” and “allow the decisionmaker to take into account all relevant

factors or the totality of the circumstances.” Kathleen M. Sullivan, The Justices of Rules

and Standards, 106 Harv. L. Rev. 22, 58–59 (1992). Indeed, that discretion can work to a

defendant’s advantage, because it is not displaced by any rule that the absence of the

implements of personal use precludes a lesser-included possessory instruction. See supra

at 17–18.

There is an old axiom in the executive branch of government: stay in your lane. The

axiom is meant among other things to allocate tasks to the agency best able to perform

them. The trial court performed its duty very well here for all the reasons we have noted.

To reverse it, we would have to leave the appellate lane, which would collide the trial and

appellate roles to the long-term detriment of both.

IV.

Lastly, Smith argues that there was insufficient evidence supporting the jury’s guilty

verdict. We review de novo a district court’s decision to deny a motion for a judgment of

acquittal based on sufficiency of the evidence. United States v. Reed, 780 F.3d 260, 269

(4th Cir. 2015). We examine that evidence “in cumulative context,” not “piecemeal

fashion.” United States v. Burgos, 94 F.3d 849, 863 (4th Cir. 1996) (en banc). And “if,

25 viewing the evidence in the light most favorable to the government, substantial evidence

supports” the jury’s verdict, then we must uphold it. United States v. Kiza, 855 F.3d 596,

601 (4th Cir. 2017). Substantial evidence is that which “a reasonable finder of fact could

accept as adequate and sufficient to support a conclusion of a defendant’s guilt beyond a

reasonable doubt.” United States v. Hickman, 626 F.3d 756, 763 (4th Cir. 2010) (quoting

United States v. Young, 609 F.3d 348, 355 (4th Cir. 2010)). Any defendant bringing a

sufficiency challenge bears “a heavy burden,” and reversal for insufficient evidence “is

reserved for the rare case where the prosecution’s failure is clear.” United States v. Ashley,

606 F.3d 135, 138 (4th Cir. 2010) (citations omitted).

Smith chiefly disputes the sufficiency of the evidence that he was in constructive

possession of the drugs and weapon. To sustain Smith’s drug and firearm convictions, the

government must prove inter alia that Smith constructively possessed the heroin and the

Intratec firearm found in the Malibu. See United States v. Herder, 594 F.3d 352, 358 (4th

Cir. 2010). It can do so through direct or circumstantial evidence. United States v. Al

Sabahi, 719 F.3d 305, 311 (4th Cir. 2013). “A person may have constructive possession of

contraband if he has ownership, dominion, or control over the contraband or the premises

or vehicle in which the contraband was concealed,” and the government must provide proof

that “defendant had knowledge of the presence of the contraband.” Herder, 594 F.3d at

358.

There is ample evidence here that Smith constructively possessed both the heroin

and the Intratec firearm. Smith was sitting near both the drugs and the firearm: the former

was visible in his seat’s door pocket, and the latter was in plain view at his feet. Though

26 proximity standing alone is not sufficient evidence, juries have every right to consider

proximity as part of their analysis. See United States v. Shrader, 675 F.3d 300, 308 (4th

Cir. 2012). And proximity does not stand alone here. As to the heroin, Smith repeatedly

engaged officers in discussions about its weight, indicating awareness of the heroin’s

existence, knowledge of drug packaging, and familiarity with state-law drug trafficking

thresholds. His text messages also strongly suggested that he was involved in selling

controlled substances. As to the Intratec firearm, Smith had appeared in a video with a

codefendant who was holding the gun, which suggests that he had prior knowledge of and

ready access to the weapon. The mechanical system under the front seat would have made

it difficult for the Intratec to have shifted under Smith’s feet accidentally or to have been

put there from behind. DNA analysis also demonstrated that it was 2,600 times more likely

that Smith, as opposed to a random individual, was a contributor to the DNA on the

weapon. Finally, because “drugs and guns all too often go hand in hand,” Lomax, 293 F.3d

at 706, knowledge of one often permits an inference of knowledge of the other. Taken

together, this evidence was more than sufficient for the jury to convict Smith.

For the foregoing reasons, we affirm the district court’s judgment.

AFFIRMED

27 WYNN, Circuit Judge, dissenting in part and dissenting from the judgment:

The only issue I disagree with the majority on is whether the trial court should have

instructed the jury on the lesser-included offense of simple possession. That’s because if

we maintain our limited roles as appellate judges and likewise require the district court to

“stay in [its] lane,” Majority Op. at 25, and not the jury’s lane, our precedent requires that

a jury decide whether Smith was guilty of the lesser or greater offense.

If the majority took its own advice to “stay in [its] lane,” then it would have come

to the same conclusion. But instead, the majority follows a different axiom: “Do as I say,

not as I do.” Four relevant examples stand out.

First, the majority says we should defer to the trial court, but then it proceeds to do

the district court’s work for it. Second, the majority states that “we must . . . take our

guidance from all the relevant precedents,” id. at 24, but then it simply ignores the

controlling precedent of this Court. Third, the majority requires courts to “look at the

totality of the evidence,” id. at 21, but then it ignores critical evidence and inferences in

the record. And fourth, the majority says that the jury must resolve “factual dispute[s] in

the evidence,” id. (internal quotation marks omitted), but then it then turns around and

weighs the evidence itself.

As appellate judges, we should remind ourselves that there are important reasons

for requiring lesser-included-offense instructions in criminal trials. If the jury is “presented

with only two options: convicting the defendant of [a crime] . . . or acquitting him

outright,” but “one of the elements of the offense charged remains in doubt,” the “jury is

28 likely to resolve its doubts in favor of conviction” if the “defendant is plainly guilty of

some offense.” Keeble v. United States, 412 U.S. 205, 212–13 (1973) (emphasis in

original). In situations like these, we “cannot say that the availability of a third option—

convicting the defendant of [a lesser-included offense]—could not have resulted in a

different verdict.” Id. at 213.

With this basic principle in mind, I now address the four ways in which the majority

opinion tells us to “Do as I say, not as I do.”

First, the majority says we must defer to the trial court, but then it proceeds to do its

job for it. Before today, there was a great deal of confusion within this Circuit over whether

defendants charged with intent to distribute drugs were required to produce or point to

affirmative evidence of drug use to be entitled to a possession instruction. The source of

this confusion is our much-derided opinion in United States v. Wright, 131 F.3d 1111 (4th

Cir. 1997).

Numerous courts—including this one—have recognized that Wright can be read as

holding that “a jury can never rationally convict for mere possession in the absence of

substantial affirmative evidence of non-distribution.” United States v. Hall, 397 F. App’x

860, 863 (4th Cir. 2010) (per curiam) (emphases added). To its credit, the majority properly

recognizes that “the lack of affirmative evidence of personal use ‘is not controlling.’”

Majority Op. at 18 (emphasis added) (quoting United States v. Hernandez, 476 F.3d 791,

800 (9th Cir. 2007)). After all, possession “may be [fairly] inferred from the evidence

presented” by the Government. United States v. Baker, 985 F.2d 1248, 1259 (4th Cir. 1993)

29 (quoting United States v. Medina, 755 F.2d 1269, 1273 (7th Cir. 1985)). And requiring a

defendant to produce affirmative evidence of drug use or addiction would prejudice their

ability to argue against both simple possession and distribution at trial. See United States

v. Nur, 799 F.3d 155, 159 (1st Cir. 2015) (“Clearly, though, the law cannot be that a

defendant must admit to the lesser crime in order to obtain the lesser-included-offense

instruction.”). Thus, we all agree that courts cannot require defendants to dig their own

graves.

But while the majority acknowledges this flaw in Wright by recognizing the correct

legal standard on affirmative evidence, the district court did not. Instead, the district court

expressed confusion about what standard it should apply, noting an apparent conflict

between United States v. Baker and Wright. The district court thought that under “Baker

standing alone . . . there’s an argument that the instruction is required” here. J.A. 833–34.

However, the district court concluded that this case was controlled by Wright, which

seemed to require a defendant to offer “considerable affirmative evidence unrelated to drug

quantity from which the jury could have reasonably inferred [that] the defendant possessed

the drugs solely for personal use” to be “entitled to an instruction on simple possession.”

J.A. 836 (emphasis added) (quoting Hall, 397 F. App’x at 863). And “after looking at the

factors in Wright, in this particular case the absence of any [affirmative] evidence that this

was just a simple possession”—other than expert testimony regarding drug quantity—

meant Smith’s instruction request was barred. J.A. 834–37.

Despite the clear evidence to the contrary, the majority exits the “appellate lane”

and attempts to prop up the district court’s work by claiming that the district court’s

30 decision did not “rest[] on an incorrect reading of Wright.” Majority Op. at 20 n.1. As

support, it primarily points to the district court’s statements that it considered “the totality

of the facts” and “all the evidence,” J.A. 835, 837, “rather than simply asking whether the

defendant had produced affirmative evidence of personal use,” Majority Op. at 20 n.1.

But that is simply wrong. It is clear from the transcript that the district judge was

“looking at all the evidence” to determine if there was, in fact, affirmative evidence of drug

use. See J.A. 835. It ultimately concluded there was “no [drug] paraphernalia in the

[Malibu],” and “no evidence anybody was using [drugs].” J.A. 835. And in case there was

any doubt about what the court was doing, it then contrasted this case with Baker and

United States v. Levy, 703 F.2d 791 (4th Cir. 1983). It noted that, “as described in Wright,”

both of these cases required a lesser-included instruction after finding “clear[] [affirmative]

evidence of simple possession in terms of use of the controlled substance.” J.A. 835; see

also Wright, 131 F.3d at 1115–16 (distinguishing Baker and Levy as cases involving

“considerable affirmative evidence unrelated to drug quantity”). Because “none of [that] is

present” here, no instruction was required. J.A. 835.

Thus, the district court rested its analysis on the very reading of Wright that we now

unanimously reject. See Majority Op. at 17–18. When a district court legally errs in this

way, we must vacate its decision and remand for further proceedings unless the error was

harmless. See United States v. Hurwitz, 459 F.3d 463, 474–82 (4th Cir. 2006) (vacating a

conviction and remanding for further proceedings when the district court’s legal error

eliminated a key jury instruction from consideration). But the majority—swerving outside

the appellate lane once more—ignores the district court’s legal error, Majority Op. at 20

31 (finding the district court “applied the correct legal standard”), blazes past this step, and

holds that we “must defer” to the district court’s “reasonable conclusion given all the

evidence before it,” id.

The majority’s failure to recognize the fundamental mismatch between its own

holding and the district court’s conclusions thus leads it to yet another error. We recently

noted that “factual findings made in the application of an incorrect legal standard are not

accorded any deference.” Arita-Deras v. Wilkinson, 990 F.3d 350, 356 (4th Cir. 2021)

(emphasis added); see also United States v. Brown, 934 F.3d 1278, 1307 (11th Cir. 2019)

(“If a district court applies an incorrect legal standard in reaching a factual conclusion, the

resulting finding is not insulated by the clear-error standard.”). Thus, because the district

court applied the wrong legal standard, we must either vacate and remand in light of that

error, 1 or refuse to defer to its factual findings. The majority—now driving on the

shoulder—errs by choosing neither.

Second, the majority says we must “adopt a holistic view of precedent” then

disregards our binding precedent. Majority Op. at 23. To wit, though the majority correctly

finds our decision in United States v. Baker controlling, it ignores critical language in that

opinion and United States v. Levy.

1 That error was not harmless. As explained below, though the Government’s evidence “was powerful and strongly indicative” of distribution, “we cannot say that no reasonable juror could have concluded” that Smith was guilty of possession but innocent of distribution. Cf. Hurwitz, 459 F.3d at 481.

32 I agree with the majority that, under Baker, “[f]or the defendant to be entitled to a

lesser-included offense, 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.” Baker, 985 F.2d at 1258–59. I also agree this could

be shown by presenting “sharply conflicting testimony” on the disputed element or by

showing that “the conclusion as to the lesser offense fairly may be inferred from the

evidence presented.” Id. at 1259 (quoting Medina, 755 F.2d at 1273).

But our agreement ends there, because the majority believes that satisfying either of

these conditions means that the element is “sufficiently in dispute.” Majority Op. at 14. But

these conditions are evidentiary avenues to show a dispute, not evidentiary conditions that

automatically establish a sufficient dispute.

To make this plain, consider the not uncommon example of where the Government

presents multiple witnesses with detailed eyewitness accounts to show that a defendant

intended to distribute drugs. If the defendant then got on the stand and categorically denied

those accounts but otherwise offered no proof, there would be sharply conflicting

testimony, but perhaps not a “sufficient” dispute. It’s even harder to make any sense of the

majority’s second condition: that an element is sufficiently in dispute when “the conclusion

as to the lesser offense fairly may be inferred from the evidence presented.” Id. (quoting

Baker, 985 F.2d at 1259). The majority essentially says that a sufficient dispute exists when

the jury could rationally conclude that a defendant is guilty of the lesser offense. But this

is just a rephrasing of Baker’s overall test. In effect, the majority is claiming that an element

is sufficiently in dispute when one can fairly infer that it is sufficiently in dispute. This is

33 entirely circular. Because these evidentiary avenues don’t explain what “sufficiently in

dispute” means, we must look elsewhere in Baker for an explanation.

According to Baker, a sufficient dispute exists when the question of whether the

element is met is “capable of two answers.” Baker, 985 F.2d at 1259 (quoting Levy, 703

F.2d at 793). And that question is capable of two answers “if there is any evidence fairly

tending to bear upon the lesser included offense, however weak that evidence may be.” 2 Id.

(emphases added) (quoting United States v. Gibbs, 904 F.2d 52, 58 (D.C. Cir. 1990))

(cleaned up); see also United States v. Humphrey, 208 F.3d 1190, 1207–08 (10th Cir. 2000)

(holding the same), abrogated on other grounds by Arizona v. Gant, 556 U.S. 332 (2009).

Framed in the converse, unless “the evidence, as a matter of law, . . . ‘rule[s] out a possible

inference of’” simple possession, an instruction must be given. Baker, 985 F.2d at 1259

(quoting Levy, 703 F.2d at 793 n.7); Nur, 799 F.3d at 160 (requiring a simple drug

possession instruction where the evidence did not “necessarily” “compel a jury to

conclude” that the defendant intended to distribute those drugs).

The reason for this abundance of caution, of course, is to “preserve the jury’s fact-

finding role.” Nur, 799 F.3d at 158; United States v. Arnt, 474 F.3d 1159, 1165 (9th Cir.

2 Though the majority proclaims itself the champion of “holistic” review of our precedent, Majority Op. at 23, it never bothers to address this language, or Baker’s converse framing described below. Neither statement is inconsistent with Baker’s overarching test, which requires a lesser-included instruction if the jury could “consistently . . . find the defendant innocent of the greater and guilty of the lesser offense.” Baker, 985 F.2d at 1258–59 (emphasis added). The point is that if there is any evidence that could consistently support a finding that the defendant is “guilty only of simple possession,” the question must be submitted to the jury, no matter how “weak” we think that evidence may be. Id. at 1259 (quoting Gibbs, 904 F.2d at 58, 59).

34 2007) (“The integrity of the jury’s fact-finding role undergirds our requirement that a

lesser-included offense instruction be given when supported by law and the evidence.”). A

factual “dispute in the evidence . . . requires resolution by the jury.” Levy, 703 F.2d at 793

n.4 (quoting United States v. Brischetto, 538 F.2d 208, 210 (8th Cir. 1976)); see also id. at

792 (noting this Court cannot “indulg[e] in the jury’s function of weighing probabilities”

(footnote omitted)). So, as long as “there is some evidence to support the jury instruction,

it is the jury’s province to determine which evidence it believe[s] most accurately reflect[s]

the events” at issue. Arnt, 474 F.3d at 1164–65. Courts “may not intrude on th[is] province”

because the jury “may find credibility in testimony that the judge may consider completely

overborne by the ‘simply overwhelming’ evidence of the prosecutor.” United States v.

Thornton, 746 F.2d 39, 47 (D.C. Cir. 1984) (citation omitted).

The majority elides this point, disregarding our prior precedent in Levy in the

process. Instead, it claims that the “district court[] must enjoy discretion in policing” the

line “between drug users and distributors,” Majority Op. at 14; and “the district court must

consider the totality of the evidence presented” while weighing the “evidence of mere

possession” against “that of intent to distribute,” id. But that’s simply wrong. Weighing the

evidence is a jury function. See Levy, 703 F.2d at 793 n.4 (“We hold that a dispute in the

evidence . . . requires resolution by the jury.” (citation omitted)).

But the majority avoids this issue by following another axiom: “If you don’t like the

issue, make it one that you do like.” So, it changes the issue that is before us from, “Is it

the jury’s role to weigh the evidence?” to “Can we disturb the district court’s discretionary

35 evidence weighing?” See Majority Op. at 13–20 (referring to this “discretion” or

“deference” at least thirteen times).

For example, the majority contends that because “a district court is much closer than

a court of appeals to the pulse of the trial,” we must “give space to the trial court’s

discretion, asking only whether the judge ran out of bounds.” Id. at 19–20. True, but what

does that have to do “with the price of tea in China?” Even if these vague propositions were

instructive, the very cases the majority cites as support—United States v. Russell, 971 F.2d

1098 (4th Cir. 1992), and Koon v. United States, 518 U.S. 81 (1996)—reveal how far afield

the majority’s position is. Russell concerned a challenge to the district court’s Fed. R. Evid.

402–04 rulings. Russell, 971 F.2d at 1104. Koon involved a challenge to the district court’s

sentencing decisions. Koon, 518 U.S. at 99. Both issues in those cases were clearly within

the province of the trial court. However, weighing the evidence is not. Levy, 703 F.2d at

793 n.7. That’s why the “district court has no discretion to refuse to give a lesser-included

instruction if the evidence warrants the instruction and the defendant requests it.” Baker,

985 F.2d at 1259 (emphasis added).

Nonetheless, the majority contends that other circuits “have not required the

instruction” after weighing “substantial evidence of distribution” against a “paucity of

evidence suggesting mere personal use.” Majority Op. at 18. But the very first case it cites

for this proposition, United States v. Hernandez, held exactly the opposite. In that case, the

Ninth Circuit instead stated “that a district court may not weigh the evidence in determining

whether to give a lesser included offense instruction.” 476 F.3d at 800 (emphasis added).

It then held that based on the quantity of drugs and a lack of other evidence of distribution,

36 the district court abused its discretion by not providing a jury instruction for simple

possession. Id. at 800–01 (“That decision was properly a decision for the jury, not for the

district court, to make.”).

Similarly, in United States v. Lucien, 61 F.3d 366 (5th Cir. 1995)—another case the

majority relies on—the Fifth Circuit held “it is the jury’s role to decide whether the

evidence supports simple possession or possession with intent to distribute” unless the fact

pattern is “extreme.” Id. at 376 (emphasis in original). It then found that the defendant was

entitled to a lesser-included instruction even though the “amount seized was a distributable

quantity,” “$1200 in cash and . . . two guns [were] found in the [defendant’s] apartment,”

“foil wrappings [were] found with the cocaine base,” and the defendant “was flushing the

drugs down the toilet when the police arrived.” Id. at 375. These cases simply do not

support the majority’s contention that a district court may weigh “substantial evidence” of

distribution against minor evidence of possession without usurping the jury’s role. 3

Perhaps sensing this disconnect, the majority suggests that evidence weighing is

permitted by our precedent in United States v. Wright. See Majority Op. at 17–19, 24. In

Wright, the defendant was arrested in a “‘hot spot’ for illegal drug activity” after fleeing

from police. Wright, 131 F.3d at 1112. During his flight, Wright abandoned a plastic bag

containing 3.25 grams of crack cocaine worth between $300 and $600 and comprising

3 The remaining two cases from other circuits cited by the majority are not to the contrary. These were cases where no evidence or reasonable inference of possession was presented or possible. See United States v. Smith, 990 F.3d 607, 613–14 (8th Cir. 2021); United States v. Lee, 68 F.3d 1267, 1273 (11th Cir. 1995).

37 about thirty dosage units. Id. When police searched Wright, they found a razor blade with

cocaine residue and $135 in twenty- and five-dollar bills; however, police recovered no

crack pipe or scales. Id. Though the dissent pointed out that there were plenty of inferences

that could be drawn in favor of simple possession on these facts—including the low drug

weight, lack of a scale, and the fact that the crack was not packaged in units for sale, id. at

1117 (Murnaghan, J., dissenting)—the Wright majority held that the evidence of

possession was “simply insufficient” when placed “against the backdrop of the powerful

evidence of distribution,” id. at 1113 (majority opinion) (emphasis added).

But to the extent that the majority relies upon Wright for the proposition that district

courts can properly weigh evidence when deciding whether to require a lesser-included-

offense instruction, see Majority Op. at 17–19, it was barred by our prior precedent in Levy

and Baker, see United States v. Spinks, 770 F.3d 285, 290 (4th Cir. 2014) (explaining that

“if two circuit precedents conflict, the earlier one . . . controls over the later”). In Levy, we

expressly held that “weighing the probabilities” is “the jury’s function.” Levy, 703 F.2d at

792. Therefore, the “question, mere possession or possession with intent to distribute,”

“requires resolution by the jury”—not “resolution by the trial judge.” Id. at 793 nn.4 & 7.

We then affirmed this principle in Baker, reiterating that a lesser-included instruction must

be submitted to the jury “if there is any evidence fairly tending to bear upon the lesser

included offense.” Baker, 985 F.2d at 1259 (emphasis added) (citation omitted). Because

these two decisions barred district courts from weighing evidence when deciding whether

to issue such instructions, Wright, which was later decided, could not authorize this

practice.

38 The majority criticizes this conclusion because it believes “Wright is reconcilable

with Baker and Levy.” Majority Op. at 24. However, it does not explain how Wright—

which weighed evidence of distribution and possession—is reconcilable with Baker and

Levy—which expressly forbade such weighing. Instead, following the “if you don’t like

the issue, make it one that you do like” principle, the majority focuses on the fact that all

three cases applied the same overarching legal rule—making them automatically

reconcilable. See id. But the overarching rule is not in dispute. What is in dispute is how

district courts apply that rule; specifically, whether they may weigh the evidence

themselves when deciding whether Baker’s test is met. Levy and Baker say they cannot.

The majority counters that some weighing must be allowed because “[t]he jury

cannot instruct itself; the only one who can instruct it is the trial judge. And those

instructions must be grounded to some extent in the evidence before the jury, lest it have

nothing to weigh.” Id. at 21. In effect, the majority is conflating two distinct tasks: (1)

determining “if there is any evidence fairly tending to bear upon the lesser included offense,

however weak that evidence may be,” Baker, 985 F.2d at 1259 (emphases added) (citation

and internal quotation marks omitted); and (2) “weighing the probabilities,” Levy, 703 F.2d

at 792. As the majority recognizes, the former requires looking at the totality of the

evidence. See Nur, 799 F.3d at 159 (holding district courts deciding whether to issue a

lesser-included possession instruction must assess all “the possible constructions of the

evidence that are rationally possible”). But examining the totality of the evidence is not the

same thing as weighing it. Only the former is properly a task for the district court; the latter

is “the jury’s function.” Levy, 703 F.2d at 792.

39 In the end, the majority’s standard permits district courts to stray from their lanes

by inappropriately weighing the evidence of distribution against that for possession. In

doing so, it disregards binding precedent and creates a circuit split. 4 In case there was any

doubt that this is what the majority intended, it too strays from its lane by proceeding to

weigh the evidence on the facts here.

C.

That brings us to the present case. Because the majority’s opinion skims over many

of the relevant facts, I supply additional necessary facts here. What a fair consideration of

all of the relevant facts reveals is that even the majority’s improper dose of deference is

not enough to support affirmance.

1.

Smith was charged with possession with intent to distribute heroin after police

recovered a single plastic baggie containing heroin from the Malibu’s front passenger door

pocket. Though Smith did not own the vehicle, he had been sitting in the front passenger

seat before it was seized. Police also recovered an Intratec 9mm firearm from underneath

the same seat. The heroin itself was not packaged in “bindles” for sale, and no “cut” or

scales were seized that would be needed to divide the heroin for distribution. J.A. 448, 610,

632. Smith had no cash on him. Nor did Smith have any typical drug paraphernalia

associated with heroin use, such as needles, spoons, tourniquets, or belts. However, heroin

Research has not revealed an out-of-circuit case supplanting the jury’s role in the 4

manner the majority does here.

40 can be smoked, snorted, or orally ingested, which would not require any of those

implements. Some users choose to get high without the use of implements such as needles

because “they don’t want to be stigmatized with a needle” or risk catching blood-borne

diseases that can be transferred “with the sharing of needles.” J.A. 612.

There was extensive expert testimony on the amount of heroin seized. Special Agent

Razik testified that the 3.32 grams of heroin recovered from the baggie would be between

eleven and thirty-three dosage units. 5 On the street, this approximate amount of heroin is

commonly referred to as an “8 ball.” J.A. 616. Although it was “highly unlikely” to be an

end-user amount, “it [wa]s possible.” J.A. 615. Razik himself had purchased this much

heroin multiple times as an undercover buyer. According to Razik, purchasing this much

is “kind of like shopping at Costco”—“[i]f you go to Costco, you get more product, but

you get a better deal on it.” J.A. 616. Though most heroin users “normally” do not have

the money to purchase their heroin in bulk, “some of them do.” J.A. 635.

After Smith was arrested, he was transferred to jail. He was placed in the main

holding area, which was next to the officer booking room. The booking room houses a

scale used to weigh drugs. After the officers used the scale to find the heroin weighed 4.5

grams in its baggie, they spoke to the magistrate. The area where the police spoke to the

magistrate was “open to the holding area,” J.A. 95, such that Smith was able to hear the

conversation. Afterward, Officer Jason Lowe informed Smith of the trafficking charge.

5 Razik actually said thirty-two doses, but that appears to be based on his mistaken belief that only 3.2 grams of heroin were seized.

41 Smith asked him how much the heroin weighed, and Lowe said 4.5 grams. Smith then

asked Lowe if they weighed it in the baggie. According to several officers, Smith also

stated that the bag weighed a gram and the heroin weighed 3.5 grams without the bag.

At trial, the Government presented Snapchat videos that showed Legrande and

Smith holding handguns—though none showed Smith holding the Intratec weapon found

under his seat—and expert testimony that drug dealers often possess firearms. The

Government also introduced DNA evidence that provided “moderate support for inclusion

of Mr. Smith as a potential contributor” to the Intratec firearm. J.A. 747. An expert testified

that the DNA retrieved from the firearm was a “low-level DNA sample” that was about

1/15 of the lab’s usual target amount for amplification. J.A. 761–62. The lab test did not

identify a “major contributor” of DNA to the firearm, defined as “when a contributor to a

mixture is greater than either 50 percent or two times the next contributor.” J.A. 762–63.

Finally, the Government introduced fifteen incoming and outgoing text messages

into evidence. These messages were obtained from a white LG cell phone seized from the

Malibu’s center console which contained a link to a Google Photo account listing Smith as

the account holder. Special Agent Razik read and interpreted these messages for the jury,

but noted at the outset that drug dealers “may use telephones that are not subscribed in their

name” to disguise their identity. J.A. 618. Razik was also careful to specify that it was the

“user of the phone” that sent these messages because he did not know who sent them. J.A.

621, 636.

With this context in mind, I turn to the majority’s application of its erroneous legal

standard to these facts.

42 2.

It should come as no surprise that the majority’s “Do as I say, not as I do” mantra

also infects its application of its flawed legal standard to Smith’s case. To start—in what

amounts to the majority’s third “Do as I say, not as I do” exercise—the majority repeatedly

stresses the need to conduct a “holistic inquiry” and consider “the totality of the evidence,”

Majority Op. at 21, 23, yet it ignores any inferences or facts that contradict its distribution

narrative. For example, while the majority is very willing to draw inferences in favor of

distribution, it forgets to do the same for possession, as it must to evaluate this issue. See

Levy, 703 F.2d at 792–93 (recognizing both inferences of an intent to distribute and

inferences supporting simple possession); Nur, 799 F.3d at 159 (holding courts deciding

whether to issue a lesser-included-offense instruction must assess “the possible

constructions of the evidence that are rationally possible”). To wit, the majority finds

Smith’s intent to distribute supported by inferences from: the “relatively large quantity” of

heroin, Smith’s awareness of the “exact quantity of heroin in the car” and apparent

familiarity with the state trafficking thresholds, the presence of the Intratec firearm linked

to Smith by proximity and DNA, and “Smith’s text messages.” Majority Op. at 14–18. It

also finds “no countervailing evidence supporting an inference of personal use,” such as

43 drug paraphernalia or testimony regarding Smith’s addiction. 6 Id. at 17, 19 (emphasis

added).

However, there are abundant inferences that could be drawn supporting simple

possession. To start, Smith had no cash, cut, or scales on him—all classic indicia of

distribution. Nor was the heroin packaged in “bindles,” which suggests that it might not

have been for sale. Though the amount of heroin seized made it “unlikely” it was for

personal use, a Government expert testified that it was “possible” and that some users have

the money to purchase in bulk. J.A. 615. Though Smith showed some awareness of the

drug weight and the state trafficking threshold, a user would almost certainly know what

quantity of drugs they had just purchased and would also have a vested interest in avoiding

the trafficking cut-off. Even if the jury rejected these inferences, it could also have found

that Smith simply overheard the police discussing the drug weight and thresholds with the

6 To the extent the majority is faulting Smith for failing to present affirmative evidence of drug use, that flies in the face of its own opinion, which recognizes that simple possession “fairly may be inferred from the evidence presented” and disclaims any requirement to present affirmative evidence. See Majority Op. at 17–19.

44 magistrate. Though these inferences alone create enough of a dispute to require a lesser-

included instruction for simple possession, the majority ignores them. 7

The majority then doubles down on its head-in-the-sand approach by

mischaracterizing or overstating the value of evidence supporting an inference of intent to

distribute. For example, the majority notes that the Intratec firearm “was found in close

proximity to the heroin, and Smith’s DNA linked him directly to it.” Majority Op. at 16.

The majority neglects to mention that there was only “moderate support” for a DNA link

to Smith, that this link was established using a “low-level DNA sample,” and that no “major

[DNA] contributor” was identified. J.A. 761, 763. And even if Smith had been caught

holding the gun, “the presence of a gun in the proximity of drugs may support a finding of

intent to distribute, [but] it does not compel such a finding.” United States v. Gentry, 555

F.3d 659, 669 (8th Cir. 2009) (citation omitted). The district court recognized as much

itself. See J.A. 837 (acknowledging that the jury can “certainly” disregard the presence of

a firearm).

7 The majority repeatedly rebukes me for “conduct[ing] what walks and talks like de novo review.” Majority Op. at 22. But identifying “possible constructions of the evidence that are rationally possible,” Nur, 799 F.3d at 159—even if the district court failed to draw them—is not de novo review. Rather, it is critical to determining if the district court abused its discretion. See James v. Jacobson, 6 F.3d 233, 239 (4th Cir. 1993) (holding an abuse of discretion is “an exercise that is flawed by erroneous factual or legal premises”). What’s more, the majority also fails to explain why we must accord the district court’s findings any deference when it applied the wrong legal standard. That, in and of itself, is an abuse of discretion. Id.

45 The majority also overstates the value of the text messages. Though the majority

refers to the messages sent from the white LG cell phone 8 as “Smith’s text messages,”

Majority Op. at 16–17, that is a disputed inference the jury was not required to make.

Special Agent Razik himself acknowledged that drug dealers “may use telephones that are

not subscribed in their name” and that he could not be sure who sent the messages. J.A.

618, 636. Thus, the majority’s certainty that these were Smith’s messages is unsupported

by the record. And even if any juror would rationally conclude these were Smith’s

messages, they would not be compelled to infer that these messages evidenced Smith’s

intent to sell the particular heroin seized in the Malibu. Just because someone is a drug

dealer does not mean they cannot also be a user. E.g., Levy, 703 F.2d at 792 (noting police

found drug manufacturing equipment and user paraphernalia at the defendant’s home).

And the majority erroneously contends that the lack of spoons and needles

recovered in the Malibu means “Smith did not have any . . . means of ingesting the heroin.”

Majority Op. at 17 (emphasis added). That claim is unsupported by the record. In fact, it’s

just an appellate court straying from its lane and weighing the evidence. Razik

acknowledged that heroin can be snorted or orally ingested, and that some users actually

8 Smith acknowledged this was his phone at the suppression hearing. However, he did not admit this at trial, so the jury was not privy to that confession. The Government argued at trial that the phone must have been Smith’s because his name was listed on the phone’s Google Photo account and it was found in the Malibu’s center console, close to where Smith had been sitting. At times, Smith’s counsel appeared to concede that this was Smith’s phone; at other times, he suggested this issue was still up in the air. Because the issue was disputed, the jury was not required to infer that it was Smith’s phone. But as explained above, even if it was Smith’s phone, that does not mean that he sent the text messages the majority unequivocally ascribes to him.

46 prefer this route due to stigma associated with needles or concerns about blood-borne

diseases. It is also unclear why the majority assumes that even those heroin users who use

spoons or needles must have those items on them at all times, especially while traveling in

someone else’s car.

Ironically, though it is the majority that neglects to draw all rational inferences in

favor of simple possession and the majority that ignores numerous factual nuances in the

record, it is the majority that chides me for failing to engage in a “holistic inquiry.” Id. at

23. In effect, the majority is “pick[ing] the flower[s]” it likes and “ignor[ing the rest of] the

garden” while accusing me of doing the same. Id. But the majority has no response to my

observations regarding the many flowers it missed, or the fact that some of the flowers it

picked were not actually flowers. The majority’s true gripe seems to be that I do not weigh

the beauty of some flowers against the rest of the garden, which of course is not the role of

an appellate judge.

That brings us to its fourth “Do as I say, not as I do” endeavor: as alluded to above,

the majority says the jury must resolve “factual dispute[s] in the evidence,” id. at 21

(internal quotation marks omitted), yet it turns around and weighs the evidence in Smith’s

case itself. For example, it acknowledges it is “possible” someone would possess 3.32

grams of heroin for personal use, but finds this inference outweighed by the rest of Special

47 Agent Razik’s testimony. 9 Id. at 15. Similarly, the majority claims—without any basis in

the record—that a “firearm is much more likely to be present in a distributional scheme

than in an instance of mere possession.” Id. at 16 (emphases added) (citing United States

v. Fisher, 912 F.2d 728, 730–31 (4th Cir. 1990) (merely noting that a “large amount of

cash . . . [and] ownership of handguns is additional circumstantial evidence

of . . . involvement in narcotics distribution” but conducting no comparison with the

incidence of firearm ownership for cases involving simple possession)). Likewise, though

the majority grudgingly admits that a jury could draw some inferences that cut against

distribution, it still finds “distribution more likely.” Id. at 23. Ultimately, it holds the district

court did not abuse its discretion by finding that “the evidence of mere possession here was

weak, and that of intent to distribute was powerful.” Id. at 14 (emphases added). But

weighing the evidence like this usurps the jury’s role as fact finder. See supra, Part I.B.

Finally, in a riff on the majority’s second “Do as I say, not as I do” error, the majority

never adequately acknowledges factually analogous—and controlling—case law.

Specifically, the majority cites United States v. Levy for a few miscellaneous propositions,

yet it fails to note that this case is on all fours with Levy. If anything, it involves a much

less extreme fact pattern. In Levy, police observed the defendant hold a meeting with a

9 The majority also agrees with the district court that “it is ‘close to inconceivable that a heroin addict . . . would take that entire quantity with him to go out to a nightclub.’” Majority Op. at 15 (quoting J.A. 835). It’s not clear why the district court or the majority assume that Smith brought heroin to the nightclub. He might have bought it there. Or he might have left it in the Malibu while he visited the nightclub, as he did when he entered the gas station.

48 convicted drug trafficker in the defendant’s car. Levy, 703 F.2d at 792. After the trafficker

got in the car, Levy exited the vehicle, removed a laundry hamper from the back seat, and

locked it in the trunk. Id. Police swooped in and arrested both individuals but found no

drugs on the trafficker. Id. However, they did find $1,150 in cash on Levy in addition to

0.8 grams of 100% pure cocaine. Id. A search of the laundry hamper recovered two bags

of cocaine “in a form too pure to be suitable for customary street distribution.” Id. The

cocaine in the bags weighed 4.75 ounces—equivalent to 1,300 doses—worth between

$14,000 and $35,000 depending on how much it was “cut.” Id. Police also searched Levy’s

house and found “paraphernalia suited to chemical conversion” and four cocaine pipes. Id.

At the time of his arrest, Levy was “unemployed and presumably without access to

legitimate sources for the necessary funds” to purchase drugs. Id.

This Court in Levy acknowledged that though the case involved “substantial”

amounts of drugs, they “do not necessarily so exceed the quantity one might stockpile for

personal use over a relatively long period of time as to eliminate all reasonable possibility

that the jury might draw such an inference.” Id. (emphasis added). Thus, while these

quantities were certainly “sufficient to permit an inference by the jury of an intent to

distribute,” the jury “was free to determine whether or not to draw [that] inference.” Id. at

793 n.4 (emphasis added) (citation omitted). While the Court recognized that a jury might

also infer that Levy’s unemployment meant he was probably involved in drug trafficking,

it found the jury could just as well infer that Levy resorted to “property crimes in order to

finance [his] ‘trips.’” Id. at 792.

49 Contrast that with the facts here: Smith was not arrested during a drug deal, had no

cash on him, and had at most thirty-three doses of heroin in his possession—an amount

that, according to record testimony, could be burned through in less than three days. This

is a world apart from the massive quantity in Levy, which involved at least forty times the

number of doses as in this case, but which we nevertheless held did not foreclose an

inference of possession. In addition, unlike Levy, Smith’s employment status is unknown,

and police found no “cut” or instruments of “chemical conversion” with him. Neither the

facts nor the law explains why the majority would believe that Levy was entitled to a lesser-

included instruction but not Smith.

Nonetheless, the majority here—like the majority in Wright—zeros in on the fact

that police found four cocaine pipes at Levy’s house. See Majority Op. at 17, 24; Wright,

131 F.3d at 1115–16 (distinguishing Levy as a case purportedly relying on “considerable

affirmative evidence [of drug use] unrelated to drug quantity”—the four cocaine pipes). It

suggests that the possession instruction was required precisely because these paraphernalia

were recovered. See Majority Op. at 17, 24. But the defendant in Levy did not have any

user paraphernalia on him when he was arrested in his own vehicle; police only found

cocaine pipes after searching his home. See Levy, 703 F.2d at 792. This means Smith—

who had no paraphernalia on him while riding in someone else’s car—is on at least as good

a footing as Levy. In addition, the pipes in Levy were found alongside “paraphernalia suited

50 to chemical conversion” 10—presumably equipment to process or cut cocaine. Id. That

meant the evidence recovered from Levy’s house was somewhat of a wash—evidence

supporting an inference of possession was balanced by other evidence pointing to

distribution. This case presents a similar situation in that no drug manufacturing

implements were found, but neither were any drug paraphernalia recovered. The Levy

Court let the jury weigh the evidence instead of sorting out the dispute itself. We should

too.

The majority counters that this analysis “places almost singular controlling weight”

on Levy. Majority Op. at 23. But the same could be said of the majority’s near-total reliance

on Wright. See id. at 17–19. Between the two, Levy makes more sense as a touchstone for

a few reasons. To start, it is hard to say how much the Wright Court’s affirmative-evidence

detour impacted its reasoning. But since the Wright majority ignored inferences in favor of

possession and “principally” distinguished Baker and Levy as “affirmative evidence” cases,

Wright, 131 F.3d at 1115–16, it seems likely that its judgment rested—at least in part—on

this rationale. And though the majority here rejects that reading of Wright, it never bothers

to ask whether removing that particular Jenga block would cause Wright’s entire tower to

come tumbling down. In addition, though the majority goes to great lengths to reframe

Wright as a case involving a “significant evidence of intent to distribute . . . and no

10 The Wright majority seemed to mistakenly believe that “paraphernalia suited to chemical conversion” supported an inference of “mere possession.” See Wright, 131 F.3d at 1115. It is hard to know what the majority here makes of this evidence since it does not address it at all.

51 countervailing evidence supporting an inference of personal use,” Majority Op. at 19

(emphasis added), Wright itself forthrightly acknowledged it was weighing an inference of

possession based on drug weight “against the backdrop of the powerful evidence of

distribution,” Wright, 131 F.3d at 1113 (emphasis added). This, of course, means the

Wright decision rests on an inappropriate “weighing [of] the probabilities.” Levy, 703 F.2d

at 792. In sum, because Wright is on doubly shaky ground, our earlier decision in Levy

should control. And under Levy, Smith is entitled to a lesser-included instruction.

This conclusion becomes even more apparent if we look outside this Circuit. For

example, in Lucien, the Fifth Circuit found a simple possession instruction required when

the defendant was caught with 16.48 grams of cocaine (about 160 doses), which he “was

flushing . . . down the toilet when the police arrived”; $1,200 in cash; two guns; and foil

wrappers consistent with cocaine distribution. Lucien, 61 F.3d at 375. Similarly, in United

States v. Gentry, the Eighth Circuit required a possession instruction when a search of the

defendant’s vehicle turned up 92.07 grams of a cloudy liquid containing

methamphetamine; 11 “various chemicals and equipment associated with the production of

meth[]”, including “starter fluid, a funnel, coffee filters, rubber tubing, and ephedrine”; and

several firearms. 555 F.3d at 661–62, 666–69. Likewise, in United States v. Nur, the First

Circuit required a possession instruction when the defendant fled and was caught with three

11 Gentry was only charged with an intent to distribute the liquid meth mixture found in her car. Gentry, 555 F.3d at 666. But police also recovered 24.3 grams of powder methamphetamine in a plastic bag from the ground where her car was parked. Id. at 661, 666. This bag was further subdivided into seven Ziploc bags, which supported a finding of intent to distribute the liquid meth. Id. at 667.

52 individually wrapped bags containing 7.27 grams of crack cocaine worth about $700;

officers discovered $1,700 in Nur’s hotel room—which he later admitted was his money—

separated in hundred-dollar increments and wrapped in elastic; and Nur allegedly

confessed that he had been on the way to sell the crack found in his possession. 799 F.3d

at 156–57, 156 n.1, 160–61.

The consistent element in these out-of-circuit cases is appropriate deference to the

jury’s fact-finding role. For example, in Lucien, the Fifth Circuit correctly noted that “it is

the jury’s role to decide whether the evidence supports simple possession or possession

with intent to distribute.” Lucien, 61 F.3d at 376 (emphasis in original). Because the

majority gives its deference to the district court, and not the jury, I must dissent.

Though the majority says that it seeks to offer clarity and consistency to district

courts, it miserably fails to do so. Instead, district court judges will be hard pressed to find

any clarity or consistency in the majority opinion, which leaves more questions than it

answered. Among them: May we leave “the appellate lane” to do the district court’s work

for it when it legally errs? What, precisely, is a “sufficient” dispute in the evidence? Has

the “however weak” language in Baker been overruled by implication? May district courts

weigh evidence of distribution against that of possession after all? Are district courts

required to draw inferences in favor of possession as well as distribution? Is Levy defunct?

Is Wright still good law with one of its primary pillars removed? Is affirmative evidence of

drug use not required in name, but still required in fact?

53 Thankfully, the majority’s improper conflation of the evidence-weighing roles of

the trial judge and the jury is foreclosed by Baker and Levy, which, as the earlier decisions,

must control. These earlier cases direct us to vacate and remand this matter for a new trial

in which the jury would receive the lesser-included instruction. Accordingly, I join Parts II

and IV of the majority’s opinion; dissent from Parts III and V; and dissent from the

judgment.