                       United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 01-3269
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        *    Appeal from the United States
      v.                                *    District Court for the
                                        *    District of Nebraska.
Morris C. Williford,                    *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: August 21, 2002

                                  Filed: October 30, 2002
                                   ___________

Before WOLLMAN, RILEY, and MELLOY, Circuit Judges.
                           ___________

WOLLMAN, Circuit Judge.

       Morris C. Williford appeals from his conviction of possession with intent to
distribute more than five grams of crack cocaine in violation of 21 U.S.C. § 841. He
contends that the district court1 erred in failing to instruct the jury on the lesser
included offense of possession under 21 U.S.C. § 844. He also contends that the
evidence on the element of intent was insufficient to support his conviction under
 § 841. We affirm.

      1
       The Honorable Thomas M. Shanahan, United States District Judge for the
District of Nebraska.
                                           I.

      Williford was arrested in Heaven Knows, a business that testimony indicated
was a haven for drug dealers who worked the nearby streets. Williford had been in
Heaven Knows from 10:15 P.M., August 31, 2000, until about 1:00 A.M., September
1, 2000, when he was arrested after a search warrant was served on the business.
Two officers saw Williford throw towards the back of the building a plastic bag that
was later found to contain 11.3 grams of crack cocaine. Testimony indicated this
amount constituted approximately 40 doses and was worth about $1,100. Also found
near Williford and the first bag was a second, similar bag containing 13.35 grams of
crack cocaine.

        Williford challenges the sufficiency of the evidence to establish a violation of
21 U.S.C. § 841. The standard of review for such a challenge is strict. We view the
evidence in a light most favorable to sustaining the verdict and reverse only if the jury
must have had a reasonable doubt about an element of the crime. United States v.
Allen, 297 F.3d 790, 796 (8th Cir. 2002). A conviction can be supported by either
direct or circumstantial evidence. United States v. Becht, 267 F.3d 767, 775 (8th Cir.
2001). “The evidence need not exclude every reasonable hypothesis except guilt.”
United States v. Erdman, 953 F.2d 387, 389 (8th Cir. 1992). Although certainly not
overwhelming, the evidence was sufficient to support a finding of an intent to
distribute. The jury could reasonably have inferred from the large number of doses
and the substantial monetary value of the drugs that Williford possessed more than
one would possess for mere personal use. United States v. Boyd, 180 F.3d 967, 980
(8th Cir. 1999). In addition, the length of time Williford had been in Heaven Knows
at the time he was arrested supports an inference that he was there to sell drugs rather
then to buy them. The lack of additional evidence typically found with drug dealers,
such as scales, individual packaging, cutting agents, and weapons, makes this a close
case. Nevertheless, on this record we cannot say that the jury must have had a
reasonable doubt regarding Williford’s intent.

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       Williford also challenges the district court’s failure to instruct the jury on the
lesser included offense of possession, a violation of 21 U.S.C. § 844. We review the
district court’s formulation of jury instructions for abuse of discretion. United States
v. Parker, 32 F.3d 395, 400 (8th Cir. 1994). A defendant is entitled to a lesser
included offense instruction only if a proper request is made. Id. at 400-01. Because
Williford did not request a lesser included offense instruction, we review his claim
only for plain error. United States v. Jorgensen, 144 F.3d 550, 560 (8th Cir. 1998).
“Plain error review is extremely narrow and is limited to those errors which are so
obvious or otherwise flawed as to seriously undermine the fairness, integrity, or
public reputation of judicial proceedings.” United States v. Griffith, 301 F.3d 880,
883 (8th Cir. 2002) (quoting United States v. Beck, 250 F.3d 1163, 1166 (8th Cir.
2001)).

       We find no plain error in the district court’s failure to sua sponte submit a
lesser included offense instruction. In any event, even if Williford had been
convicted of possession under § 844, the amount of drugs involved requires
sentencing under U.S.S.G. § 2D1.1, the same section applicable to possession with
intent to distribute. U.S.S.G. § 2D2.1(b)(1). The range applicable to the base offense
level and Williford’s criminal history category is 78-97 months. Williford was
sentenced to 78 months, the shortest sentence allowed. Thus his sentence would not
have been shorter even if he had been convicted of the lesser included offense.

      The judgment is affirmed.

      A true copy.

             Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.



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