                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-4779


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ADRIAN JAMAR HALL,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Spartanburg.   G. Ross Anderson, Jr., Senior
District Judge. (7:08-cr-00550-GRA-1)


Submitted:   September 9, 2010            Decided:   October 12, 2010


Before MOTZ, GREGORY, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Christopher L. Murphy, STUCKEY LAW OFFICES, LLC, Charleston,
South Carolina, for Appellant. Kevin F. McDonald, Acting United
States Attorney, E. Jean Howard, Assistant United States
Attorney, Greenville, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      Adrian Jamar Hall appeals his convictions for possession

with intent to distribute marijuana, in violation of 21 U.S.C.

§ 841(a)(1), (b)(1)(D) (2006), possession of a firearm after a

felony     conviction      in   violation       of    18        U.S.C.       §§ 922(g)(1),

924(a)(2),       and   924(e)     (2006),       and       use     of     a    firearm   in

furtherance of a drug trafficking offense, in violation of 18

U.S.C. § 924(c)(1)(A) (2006).             For the reasons that follow, we

affirm.

      Hall first argues that the district court erred by denying

his motion to suppress the firearm and marijuana found in the

vehicle he was driving at the time of his arrest.                               He argues

that pursuant to Arizona v. Gant, 129 S. Ct. 1710 (2009), which

was decided while his case was pending on appeal, the search

incident    to    arrest   exception      no    longer      justifies          the   police

officers’ search of the vehicle.                Legal conclusions on a motion

to suppress are reviewed de novo.                   United States v. Blake, 571

F.3d 331, 338 (4th Cir 2009).             When the district court denies a

suppression motion, this court reviews the evidence in the light

most favorable to the government.                   United States v. Neely, 564

F.3d 346, 349 (4th Cir. 2009).

      Warrantless      searches    “are       per    se   unreasonable          under   the

Fourth Amendment—subject only to a few specifically established

and   well-delineated       exceptions.”            California         v.    Acevedo,   500

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U.S.    565,   580       (1991)       (internal     quotation     marks       and     citation

omitted).      One such exception is the search incident to a lawful

arrest,    which         permits       “law   enforcement      officers        following      a

lawful arrest [to] . . . search the arrestee's person and the

area within his immediate control.”                       United States v. Murphy,

552 F.3d 405, 410 (4th Cir. 2009) (internal quotation marks and

citations omitted).               Hall contends that under Gant, the search

could not be justified as a search incident to a lawful arrest

because he had already been secured in a patrol car when the

police conducted the search.

       In Gant, the Supreme Court held that “[p]olice may search a

vehicle    incident         to    a    recent    occupant’s     arrest         only    if   the

arrestee       is        within       reaching      distance       of        the     passenger

compartment at the time of the search or it is reasonable to

believe the vehicle contains evidence of the offense of arrest.”

Gant, 129 S. Ct. at 1723.                     The Court further explained that

“[w]hen     these         justifications         are    absent,     a        search    of   an

arrestee’s vehicle will be unreasonable unless police obtain a

warrant     or      show        that     another       exception        to     the    warrant

requirement applies.”              Id. at 1723-24.

       While the search of Hall’s vehicle does not appear to be

justified as a search incident to an arrest in light of Gant,

the    seizure      of    the     marijuana      and   the   search      leading       to   the

discovery of the firearm are valid under other exceptions to the

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Fourth Amendment’s warrant requirement.                     With respect to the

marijuana,     testimony         introduced    at    the    suppression          hearing

indicates that it was in plain view on the floorboard of the

vehicle, and thus, its discovery was not the result of a search

within the meaning of the Fourth Amendment.                     With respect to the

firearm, which was under a seat, and arguably not in plain view,

the   discovery      of    the    marijuana     in   plain       view     gave   police

probable     cause    to    conduct     the    search      of    the     vehicle   that

ultimately    led    to    the    firearm’s    discovery.          See    Maryland    v.

Dyson, 527 U.S. 465, 467 (1999); United States v. Watkins, 662

F.2d 1090 (4th Cir. 1981).              The district court, therefore, did

not err in denying the motion to suppress.

      Next, Hall challenges the court’s denial of his request for

a jury instruction on simple possession as a lesser included

offense to possession with intent to distribute.                           This court

“review[s] a district court’s decision whether to give a jury

instruction    for    abuse      of   discretion”.         See    United    States    v.

Kennedy, 372 F.3d 686, 698 (4th Cir. 2004).                      “For the defendant

to be entitled to a lesser-included offense [instruction], the

proof on the element that differentiates the two offenses must

be sufficiently in dispute to allow a jury consistently to find

the defendant innocent of the greater and guilty of the lesser

offense.”      United      States     v.   Baker,    985        F.2d    1248,    1258-59

(4th Cir. 1993).

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       We note at the outset that the district court erroneously

determined that a lesser included offense instruction was not

available as a matter of law because no such offense appears in

the statute Hall was charged with violating.                   We have squarely

held to the contrary.         Id. at 1259.        In spite of the court’s

error, however, “[w]e are . . . entitled to affirm on any ground

appearing in the record, including theories not relied upon or

rejected by the district court.”               Scott v. United States, 328

F.3d 132, 137 (4th Cir. 2003).

       We held in United States v. Wright, 131 F.3d 1111, 1115-16

(4th Cir. 1997) that a defendant is entitled to an instruction

on     simple   possession     only     when     he    offers      “considerable

affirmative evidence unrelated to drug quantity from which the

jur[y]    could    have    reasonably       inferred     that    the     defendant

possessed the drugs solely for personal use.”                  We have regularly

applied Wright in unreported opinions to affirm the denial of

lesser-included     offense    instructions      in    cases    involving    small

drug    amounts.    See,     e.g.,    United    States    v.    Davis,    2010   WL

2465019, *5-6 (4th Cir. 2010).

       To be sure, in cases decided before Wright, we appear to

have adopted a contrary approach.                In them, we held that a

district court must issue a possession instruction when proof of

distribution is “sufficiently in dispute” to allow the jury to

convict the defendant of simple possession.               Baker, 985 F.2d at

                                        5
1258.       We made clear that evidence can be in sufficient dispute

even absent a direct “conflict in the testimony.”                        Id. at 1259

(quoting United States v. Medina, 755 F.2d 1269, 1273 (7th Cir.

1985)).       We further stressed that any rational dispute about the

evidence      regarding       distribution      requires      “resolution     by   the

jury.”       United States v. Levy, 703 F.2d 791, 793 n.4 (4th Cir.

1983).       In holding that a jury can never rationally convict for

mere       possession    in    the    absence       of    substantial    affirmative

evidence of non-distribution, Wright seems to depart from the

principles set forth in these cases. ∗

       We need not resolve that possible conflict here, however.

Cf. McMellon v. United States, 387 F.3d 329, 333 (4th Cir. 2004)

(en banc) (holding that “as to conflicts between panel opinions,

application of the basic rule that one panel cannot overrule

another       requires    a    panel    to      follow      the     earlier   of   the

conflicting opinions”).             This is so because Hall’s possession of

a   digital      scale,       see    J.A.    129,        provides    strong   --   and

uncontested -- evidence of his intent to distribute.                      See, e.g.,

       ∗
       Wright’s requirement that a defendant produce “affirmative
evidence” of possession also seems at odds with the law of other
circuits.   See, e.g, United States v. Hernandez, 476 F.3d 791,
798-800 (9th Cir. 2007); United States v. Trujillo, 390 F.3d
1267, 1270-1276 (10th Cir. 2004); United States v. Lucien, 61
F.3d 366, 375-76 (5th Cir. 1995); United States v. Gibbs, 904
F.2d 52, 58-59 (D.C. Cir. 1990); United States v. Garcia-Duarte,
718 F.2d 42, 48 (2d Cir. 1983); United States v. Blake, 484 F.2d
50, 58 (8th Cir. 1973).



                                            6
United    States    v.     Jones,    586    F.3d    573,    575   (8th   Cir.    2009)

(recognizing       that    “people       involved    in    the    distribution       and

manufacture of drugs often use digital scales”); Davis, 2010 WL

at *6.         Accordingly, we cannot hold that the district court

abused its discretion in denying Hall’s request for a simple

possession instruction.

     In sum, we affirm Hall’s convictions for possession of a

firearm after a felony conviction, possession with intent to

distribute marijuana, and use of a firearm in relation to a drug

trafficking offense.            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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