                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4229


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

SHARON JOHNSON BURTON,

                  Defendant - Appellant.


Appeal from the United States District Court for the Western
District of Virginia, at Abingdon.      James P. Jones, Chief
District Judge. (1:06-cr-00052-jpj-pms-1)


Submitted:    July 31, 2009                 Decided:   August 14, 2009


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


Affirmed by unpublished per curiam opinion.


J. Darren Byers, LAW OFFICES OF J. DARREN BYERS, P.A., Winston-
Salem, North Carolina, for Appellant.    Julia C. Dudley, United
States Attorney, Jennifer R. Bockhorst, Assistant United States
Attorney, Abingdon, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Sharon    Johnson     Burton    was    convicted    by     a    jury    of

possession with intent to distribute cocaine and five grams or

more of methamphetamine, in violation of 21 U.S.C. § 841(a)(1),

(b)(1)(B) (2006); and possession of a firearm by a convicted

felon, in violation of 18 U.S.C. § 922(g)(1) (2006).                           Burton

received    concurrent        sixty-three-month      sentences.         On    appeal,

Burton     raises     two     claims.    First,      Burton    argues       that    the

district court should have instructed the jury on the lesser-

included offense of drug possession.               Second, Burton argues that

the district court imposed an unreasonably long sentence.

             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).

      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).               “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


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defendant    innocent       of   the      greater     and    guilty       of    the    lesser

offense.”     United States v. Baker, 985 F.2d 1248, 1258-59 (4th

Cir. 1993).        For an element to be “sufficiently in dispute,”

either    “the    testimony      on    the    distinguishing          element         must    be

sharply conflicting, or the conclusion as to the lesser offense

must be fairly inferable from the evidence presented.”                                 United

States v. Wright, 131 F.3d 1111, 1112 (4th Cir. 1997) (internal

quotation marks citation and omitted).

            In this case, the district court did not abuse its

discretion by failing to instruct the jury on simple possession.

As the district court stated, Burton did not demonstrate that

she was drug user.          None of the witnesses testified that he or

she   had   ever     seen    Burton       either     using        drugs    or    under       the

influence of drugs.              See id. at 1112-13.                 At trial, Burton

apparently tried to blame her husband for the drug-trafficking

evidence,    which    included        a   total      of    more    than    100    grams       of

cocaine     and    methamphetamine,              thirty-nine        Xanax,       marijuana,

digital     scales,     computers,           three        cell    phones        and    $1156.

Therefore, we do not believe Burton’s intent to distribute was

placed sufficiently in dispute or that the evidence allowed a

fair inference of simple possession.

            We now turn to Burton’s sentencing claim.                             Appellate

courts review sentences for reasonableness, applying an abuse of

discretion standard of review.                Gall v. United States, 552 U.S.

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38, __, 128 S. Ct. 586, 597-98 (2007); United States v. Pauley,

511 F.3d 468, 473 (4th Cir. 2007).                  This court first considers

whether the district court committed any significant procedural

error, such as improperly calculating the advisory Guidelines

range.    United States v. Evans, 526 F.3d 155, 161 (4th Cir.),

cert.    denied,    129   S.   Ct.    476      (2008).     We    then   assess     the

substantive reasonableness of the sentence imposed, taking into

account the totality of the circumstances.                 Id.     In assessing a

sentence,    we    may      presume    a       sentence   within    the      advisory

Guidelines range to be reasonable.                  Gall, 128 S. Ct. at 597;

Pauley, 511 F.3d at 473.             Moreover, we must give due deference

to the district court’s decision that the 18 U.S.C. § 3553(a)

(2006) factors justify the sentence.                Id.   Even if we would have

imposed a different sentence, this fact alone is insufficient to

justify reversing the district court.               Evans, 526 F.3d at 160.

            On appeal, Burton claims her sentence is greater than

necessary   to     comply    with     18   U.S.C.    § 3553(a).         We   are   not

persuaded by Burton’s claim.               Burton received a sentence at the

very bottom of the Guidelines range.                Further, she does not give

any specific reason why the sentence was unreasonable nor does

she cite any particular factor that the district court failed to

consider.    In short, we find that Burton has not rebutted the

appellate presumption that a Guidelines sentence is reasonable.



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            For   the    reasons      stated    above,    we   affirm   Burton’s

conviction and sentence.        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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