US v. David Latour, No. 09-4856 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4856 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DAVID JEREMY LATOUR, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Anderson. Henry M. Herlong, Jr., Senior District Judge. (8:09-cr-00419-HMH-1) Submitted: October 18, 2010 Decided: November 8, 2010 Before SHEDD and KEENAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Michael Chesser, Aiken, South William N. Nettles, United States Assistant United States Attorney, for Appellee. Carolina, for Appellant. Attorney, Leesa Washington, Greenville, South Carolina, Unpublished opinions are not binding precedent in this circuit. PER CURIAM: David sentenced to Jeremy 240 Latour months was in convicted prison a jury and being for by a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) (2006), and possession methamphetamine, in (b)(1)(C) (2006). with violation intent of 21 to U.S.C. distribute § 841(a)(1), Latour asserts that the district court erred when it refused to instruct the jury regarding simple possession of methamphetamine as a lesser-included offense. Finding no error, we affirm. This court reviews a district court s refusal to give a jury instruction for abuse of discretion. See United States v. Abbas, 74 F.3d 506, 513 (4th Cir. 1996). A district court s refusal to provide an instruction requested by a defendant constitutes reversible error only if the instruction: (1) was correct; (2) was not substantially covered by the court s charge to the jury; and (3) dealt with some point in the trial so important[] that failure to give the requested instruction seriously impaired the defendant s ability to conduct his defense. United States v. Lewis, 53 F.3d 29, 32 (4th Cir. 1995) (internal quotation marks and citation omitted). We conclude that the district court did not abuse its discretion in instructed that denying it Latour s could request convict Latour that of the jury be methamphetamine possession as a lesser-included offense of the possession with 2 intent to distribute charge. Given the significant amount of evidence introduced by the Government regarding Latour s drug distribution activities, whether Latour intended to distribute was not sufficiently in dispute to allow a jury consistently to find the defendant innocent of the greater and guilty of the lesser offense. United States v. Baker, 985 F.2d 1248, 1258-59 (4th Cir. 1993); see also United States v. Wright, 131 F.3d 1111, 1112 (4th Cir. 1997) (holding that for an element to be sufficiently distinguishing in dispute, element must either be the sharply testimony on the or the conflicting, conclusion as to the lesser offense must be fairly inferable from the evidence presented ) (internal citation and quotation marks omitted). Accordingly, dispense with oral we affirm argument Latour s because the conviction. facts and We legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 3
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