UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 96-4340

KHARY JAMAL ANCRUM,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CR-95-463)

Submitted: January 28, 1997

Decided: March 3, 1997

Before WIDENER, HALL, and WILKINS, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Edward Blair Brown, Alexandria, Virginia, for Appellant. Helen F.
Fahey, United States Attorney, W. Neil Hammerstrom, Jr., Assistant
United States Attorney, Alexandria, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Appellant Khary Jamal Ancrum appeals from his jury conviction
and resulting fifty-one month sentence for distribution of cocaine base
in violation of 21 U.S.C. § 841(a)(1) (1994). He asserts that the court
abused its discretion in declining to instruct the jury on simple posses-
sion as a lesser-included offense of distribution. Finding no abuse of
discretion, we affirm.

Ancrum was arrested in the course of a police "spotting" operation
in Alexandria, Virginia. A police officer observed Ancrum's encoun-
ters with Damon Livers ("Livers") through a"spotting scope." The
officer observed Livers meet with Ancrum at a motel and then return
to a nearby restaurant; within a few minutes, Ancrum approached
Livers in front of the restaurant. The officer watched the two have a
brief conversation and Ancrum placed rock-like objects in Livers's
hand in three distinct gestures. Livers closed his hand and entered the
restaurant. At this time, police alerted a nearby"jump out unit."
Ancrum saw the police unit and quickly entered the restaurant after
Livers. Both were apprehended; Livers possessed three rocks of
cocaine.

Ancrum denied involvement in a drug transaction or that he was
registered in the nearby hotel where police saw him. Hotel records
disclosed that he was registered there, and a search of the room he
was assigned uncovered 57.55 grams of crack cocaine, an electronic
scale bearing cocaine residue, and men's and women's clothing. At
trial, Ancrum testified that he encountered Livers on the street, who
merely handed him the rocks of cocaine he allegedly found to get his
opinion about whether "it was real." Ancrum testified that he told Liv-
ers it looked real and handed the rocks back to him. He also stated
that he had registered other people in the hotel room with his own
identification.

The decision whether there is enough evidence to justify a lesser-
included instruction lies within the trial court's sound discretion.
United States v. Chapman, 615 F.2d 1294, 1298 (10th Cir. 1980). A
defendant is not entitled to such an instruction unless evidence would

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permit a jury rationally to find him guilty of the lesser offense and not
guilty of the greater. United States v. Walker , 75 F.3d 178, 180 (4th
Cir.), cert. denied, ___ U.S. #6D6D 6D#, 64 U.S.L.W. 3821 (U.S. June 10,
1996) (No. 95-8957). Possession is not a necessary element of a dis-
tribution charge. United States v. Barrientos , 758 F.2d 1152, 1158
(7th Cir. 1985).

Had the jury believed his version of the facts, Ancrum would have
been entitled to an acquittal on a simple possession charge. According
to his testimony, he never possessed the drugs with criminal intent.
For that reason and because possession is not an element of distribu-
tion, we find the court did not abuse its discretion in declining to give
the requested instruction and we affirm Ancrum's conviction and sen-
tence. We dispense with oral argument since the facts and legal con-
tentions are adequately presented in the materials before the court and
argument would not aid the decisional process.

AFFIRMED

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