                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 06-4587



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


DARRYL ORLANDO POWELL,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Danville.   Jackson L. Kiser, Senior
District Judge. (4:04-cr-00011-jlk)


Submitted:   June 22, 2007                  Decided:   July 30, 2007


Before WILKINSON, MICHAEL, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Paul G. Beers, GLENN FELDMANN DARBY & GOODLATTE, Roanoke, Virginia,
for Appellant. John L. Brownlee, United States Attorney, Edward A.
Lustig, Assistant United States Attorney, Roanoke, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Darryl Orlando Powell was indicted for one count of

distributing more than five grams of cocaine base, in violation of

21 U.S.C. § 841(a)(1), and three counts of distributing cocaine

base, in violation of 21 U.S.C. § 841(a)(1), for selling cocaine

base to a police informant during an undercover operation.

             The      police     informant      and    several    police     officers

testified at the federal jury trial.                    To demonstrate that the

substances       found    were    in     fact   cocaine   base,     the    Government

submitted stipulated certificates of analysis, which listed the

substance as “cocaine.”           After the Government rested, it sought to

reopen its case to replace the certificates of analysis identifying

the substances as “cocaine” with certificates that identified the

substances       as   “cocaine    base.”        Over   Powell’s     objection,     the

district court permitted the substitution of the certificates.

Powell then sought to have              both sets of certificates shown to the

jury   and   a     jury   instruction       permitting    a   conviction      of   the

lesser-included        offense     of    distributing     cocaine    powder.       The

district court denied Powell’s request.                    Thereafter, the jury

convicted Powell as to Count Four but was deadlocked as to the

remaining three counts.           Prior to retrial, the Government filed a

motion to schedule the second trial outside of the statutory speedy

trial limits. Over Powell’s objections, the district court granted

the motion.


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          Powell was later retried on the remaining counts. At the

close of evidence, Powell requested the jury be instructed as to a

lesser-included offense of distributing less than five grams of

cocaine base with respect to Count One.   The district court denied

Powell’s request.   Thereafter, Powell was found guilty as to all

three counts.    The district court then sentenced Powell to an

aggregate 120 months in prison.      Powell timely appealed, and we

affirm.

          Powell argues the district court erred when it refused to

permit the jury to consider the first certificates of analysis that

identified the relevant substance as simply “cocaine” as well as

the certificates of analysis that identified the substance as

“cocaine base.” The Federal Rules of Evidence instruct that “[a]ll

relevant evidence is admissible, except as otherwise provided” by

law or rule.    Fed. R. Evid. 402.    Relevant evidence is defined

broadly as “evidence having any tendency to make the existence of

any fact that is of consequence to the determination of the action

more probable or less probable than it would be without the

evidence.”     Fed. R. Evid. 401.     A failure to admit relevant

evidence without a legally supported reason constitutes an abuse of

discretion and may require a new trial.   See Westfield Ins. Co. v.

Harris, 134 F.3d 608, 615 (4th Cir. 1998).         We conclude the

district court did not abuse its discretion when it kept the first

certificates of analysis from the jury’s purview because their


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initial submission was the result of an administrative error, the

new certificates were not inconsistent with the first certificates,

and the jury would not be confused by having only the substituted

certificate to consider.

             Next, Powell argues the jury should have been instructed

at   the    first   trial   as   to    the       lesser-included        offense    of

distribution of cocaine powder and that a new trial was warranted

when the district court denied the request.                         In general, the

decision whether to give a jury instruction, and the content of

that instruction, are reviewed for abuse of discretion. See United

States v. Burgos, 55 F.3d 933, 935 (4th Cir. 1995).                          “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). We conclude that the district court

properly denied Powell’s request for a lesser-included offense

instruction and subsequent motion for a new trial because there was

no evidence presented at trial that would permit a jury to convict

Powell of distributing cocaine powder.

            Powell next contends his rights under the Speedy Trial

Act were violated.       Specifically, Powell argues that the district

court erroneously granted the Government’s request for an extension


                                      - 4 -
to retry him on Counts One, Two, and Three over his objection.

Under the Speedy Trial Act, a retrial must commence within seventy

days from the date the act occasioning the retrial becomes final.

See   18    U.S.C.    §   3161(e).         However,   if     the      judge   grants   a

continuance on his own motion or based on a request by the defense

or Government, the judge must find that the ends of justice served

by taking the action outweigh the interest of the public and

defendant in a speedy trial.           18 U.S.C. § 3161(h)(8)(A) (2000).               We

conclude that the district court properly granted the Government’s

motion for an extension because Powell’s attorney’s scheduling

conflicts during the seventy-day trial window contributed to the

need for an extension.

              Powell next argues he was entitled to a jury instruction

on Count One at his second trial that reflected a lesser-included

offense of distributing less than five grams of cocaine base.                          As

noted      previously,    in   order       to   justify    an    instruction     on    a

lesser-included       offense,      “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.”      Walker, 75 F.3d at 179.              We conclude the district

court    properly     denied    Powell’s        request   for    a     lesser-included

offense instruction as to drug weight because the evidence did not

support such an instruction.




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          Based on the foregoing, we affirm Powell’s convictions

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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