                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 09-4245


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

JOHNNIE ELIJAH FOSTER, a/k/a Johnny Elijah Foster, a/k/a
John Elijah Foster,

                Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News.    Raymond A. Jackson,
District Judge. (4:08-cr-00039-RAJ-TEM-1)


Submitted:   March 29, 2010                 Decided:   April 20, 2010


Before NIEMEYER and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Michael S. Nachmanoff, Federal Public Defender, Frances H.
Pratt, Larry M. Dash, Assistant Federal Public Defenders,
Norfolk, Virginia, for Appellant.     Dana J. Boente, United
States Attorney, Timothy R. Murphy, Special Assistant United
States Attorney, Scott J. Upright, Second Year Law Student,
Newport News, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Johnnie Elijah Foster appeals his conviction of simple

possession of crack cocaine, in violation of 21 U.S.C. § 844(a)

(2006).    Foster was originally charged in a one-count indictment

alleging possession with intent to distribute crack cocaine, in

violation of 21 U.S.C. § 841(a) (2006).                 Prior to submitting

Foster’s case to the jury, the district court instructed the

jury on the elements of possession with intent to distribute.

After considerable deliberation, the jury was unable to reach a

unanimous verdict on the sole count in the indictment and asked

whether Foster could be convicted of simple possession of crack

cocaine.     The district court then instructed the jury on the

elements of simple possession of crack cocaine.              Thereafter, the

jury convicted Foster of simple possession of more than five

grams but less than fifty grams of crack cocaine.               The district

court sentenced Foster to 78 months’ imprisonment, and Foster

timely noted his appeal.

            Foster raises two arguments on appeal.              According to

Foster,    the   district   court    erred   in   instructing   the   jury   on

simple possession because that offense is not a lesser-included

offense    of    possession   with    intent      to   distribute.     Foster

concedes that he did not raise this claim in the district court

and that his claim is, therefore, reviewed only for plain error.

Plain error review requires the defendant to establish that:

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(1) there was error; (2) the error was “plain;” and (3) the

error      affected        the    defendant’s         substantial     rights.          United

States     v.    Olano,      507      U.S.    725,     732     (1993).      Even      if    the

defendant makes this required showing, “Fed. R. Crim. P. 52(b)

leaves the decision to correct the forfeited error within the

sound discretion of the court of appeals, and the court should

not     exercise       that        discretion         unless    the      error    seriously

affect[s]        the   fairness,         integrity,       or    public     reputation        of

judicial proceedings.”                 Olano, 507 U.S. at 732 (quoting United

States     v.    Young,      470      U.S.   1,   15   (1985)    (internal       quotations

omitted)).

                Foster concedes that the first two elements in the

simple possession statute, 21 U.S.C. § 844(a), are identical to

the first two elements for possession with intent to distribute

in    21   U.S.C.      §    841(a).          He   argues,      though,    that    §    844(a)

contains a third element that is not an element of possession

with intent to distribute, namely that the defendant did not

possess         the    controlled            substance       pursuant      to     a        valid

prescription order.              Foster’s argument fails.

                According        to     21    U.S.C.      § 885(a)(1),       it       is    not

“necessary for the United States to negative any exemption or

exception set forth in this subchapter . . . in any trial[.]”

21 U.S.C. § 885(a)(1).                  Thus, the exception in § 844(a) for

possession pursuant to a valid prescription is an affirmative

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defense that Foster was required to establish.                       Moreover, Foster

bears the burden of establishing error by the district court,

and our review of the relevant case law leads us to conclude

that Foster has failed to do so.                   See United States v. Jones,

204 F.3d 541, 544 (4th Cir. 2000); United States v. Baker, 985

F.2d 1248, 1259 (4th Cir. 1993).                   Therefore, Foster has failed

to   demonstrate         that    the    district      court     plainly      erred    in

determining that simple possession is a lesser-included offense

of possession with intent to distribute.

           Next, Foster claims that the district court erred in

instructing the jury on simple possession when the element “with

intent to distribute,” was not in dispute, and there was no

evidence     of    personal      use.        The   only   evidence       relevant     to

personal use was the opinion of an expert witness that, in his

experience, a thirty-four-gram quantity of crack cocaine was not

consistent        with    personal       use,      but    was        consistent      with

distribution.

           This court reviews for abuse of discretion both the

decision     to    grant        and    the   content      of    a     requested      jury

instruction.         United       States     v.    Burgos,      55    F.3d   933,    935

(4th Cir. 1995).          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



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him of the greater.”      Keeble v. United States, 412 U.S. 205, 208

(1973).

            We   find   that   the   evidence   presented   satisfies    this

criteria.    Accordingly, we find no abuse of discretion by the

district court in instructing the jury on the lesser-included

offense.    We therefore affirm the district court’s judgment.             We

dispense    with   oral    argument     because   the   facts   and     legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                                  AFFIRMED




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