                                                                                  FILED
                                                                      United States Court of Appeals
                                       PUBLISH                                Tenth Circuit

                      UNITED STATES COURT OF APPEALS                        December 17, 2019

                                                                          Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                             Clerk of Court
                        _________________________________

 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                           No. 18-7062

 NOWLIN LEE WAUGH, JR.,

       Defendant - Appellant.
                      _________________________________

                     Appeal from the United States District Court
                        for the Eastern District of Oklahoma
                         (D.C. No. 6:18-CR-00038-RAW-1)
                       _________________________________

Christopher Wilson, Assistant United States Attorney (Brian J. Kuester, United States
Attorney; Linda A. Epperley, Assistant United States Attorney, with him on the brief),
Muskogee, Oklahoma, for Plaintiff - Appellee.

Dean Sanderford, Office of the Federal Public Defender (Virginia L. Grady, Federal Public
Defender, with him on the briefs), Denver, Colorado, for Defendant - Appellant.
                       _________________________________

Before CARSON, BALDOCK, and EBEL, Circuit Judges.
                  _________________________________

BALDOCK, Circuit Judge.
                    _________________________________

      On March 23, 2018, Defendant Nowlin Lee Waugh, Jr. was driving on Interstate

40 in Eastern Oklahoma when Oklahoma Highway Patrol Trooper Aaron Lockney

observed his vehicle cross over the fog line. Believing the driver was fatigued, texting,
or under the influence of drugs or alcohol, Trooper Lockney initiated a traffic stop.

Trooper Lockney activated his emergency lights, but Defendant refused to yield and

continued eastbound on Interstate 40. Trooper Lockney observed Defendant moving

erratically and reaching into the backseat area of the vehicle. Trooper Lockney also

observed Defendant throwing items out of the driver’s side window.

      After following Defendant for approximately 10 miles, Trooper Lockney

performed a “tactical vehicle intervention,” ramming Defendant’s vehicle and bringing

it to a stop. Trooper Lockney identified Defendant as the driver and sole occupant of

the vehicle.   Inside the vehicle, Trooper Lockney and other officers found two

trashcans, four gallon-size bottles of bleach, shards of suspected methamphetamine

strewn about the vehicle, six kilo-sized vacuum-sealed bags that had been ripped open,

two or three gallon-sized Ziploc bags, and some shrink wrap. The interior of the

vehicle was wet in places and smelled strongly of bleach. One of the trash cans

contained bleach and shards of suspected methamphetamine. The troopers believed

Defendant used the bleach to destroy large quantities of methamphetamine during the

ten-mile police chase.    The troopers recovered the largest shards of suspected

methamphetamine for testing. The suspected methamphetamine was subsequently

weighed at 54.19 grams of methamphetamine with a 93% purity rate.

      Thereafter, Defendant was charged with possession with intent to distribute 50

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

841(b)(1)(B). Defendant proceeded to trial and argued that, although he possessed

methamphetamine, he did not intend to distribute it. Defendant introduced no evidence

                                          2
he was a user of methamphetamine but, during opening and closing statements, defense

counsel argued the Government could not prove Defendant possessed the requisite

intent to distribute. In furtherance of this defense, Defendant asked the district court

to instruct the jury on the lesser included offense of simple possession. The district

court denied Defendant’s request, and the jury returned a guilty verdict. Defendant

appeals, arguing the district court erred in refusing to give the lesser included

instruction on mere possession. Exercising jurisdiction under 28 U.S.C. §.1291, we

affirm.

                                          ***

      A defendant is entitled to an instruction on a lesser included offense if the

evidence would permit a rational jury to convict the defendant of the lesser offense and

acquit him of the greater. United States v. Pacheco, 884 F.3d 1031, 1047 (10th Cir.

2018). This rule recognizes “where one of the elements of the offense charged remains

in doubt, but the defendant is plainly guilty of some offenses, the jury is likely to

resolve its doubts in favor of conviction.” Id. (quoting Keeble v. United States, 412

U.S. 205, 212–13 (1973)). Thus, “if there is evidence to support a lesser included

offense and defendant requests such a charge, the court has no discretion to refuse to

give the instruction.” Pacheco, 884 F.3d at 1047 (quoting United States v. Bruce, 458

F.3d 1157, 1162 (10th Cir. 2006)). To warrant an instruction on a lesser included

offense, the defendant must establish: (1) he properly requested the instruction; (2) the

elements of the lesser offense are included in the elements of the greater offense; (3)

the element differentiating the two offenses is in dispute; and (4) the jury is able to

                                           3
rationally acquit the defendant of the greater offense and convict on the lesser offense.

Id.

      In this case, the parties agree the first three requirements are met. Therefore, at

issue is whether the jury would have been able to rationally acquit Defendant of

possession with intent to distribute and instead convict him on simple possession. The

district court found there was no evidence of personal use and substantial evidence of

distribution. Accordingly, the district court held an instruction on the lesser included

offense of simple possession was not warranted.

      We review the district court’s decision for an abuse of discretion. Id. An abuse

of discretion is defined as “judicial action which is arbitrary, capricious, or whimsical”

or judicial action based upon “manifestly unreasonable judgment, prejudice, bias, or

ill will which is ascertainable from the record.” Id. (quoting Pelican Prod. Corp. v.

Marino, 893 F.2d 1143, 1146 (10th Cir. 1990)).

                                          ***

      Upon review, we conclude the district court did not abuse its discretion in

declining to give an instruction on simple possession. Based on the quality and

quantity of the methamphetamine recovered, as well as the circumstances surrounding

the recovery of the methamphetamine, no rational jury could find the

methamphetamine was intended for personal use rather than distribution.

      First, when highway patrol forced Defendant’s vehicle to a stop, troopers

recovered 54 grams of methamphetamine from the vehicle. Special Agent Sean Henry



                                            4
testified a personal use quantity is approximately a quarter gram.1 Therefore, Agent

Henry calculated Defendant had at least 200 single dose units of methamphetamine.

Agent Henry further testified, in his twenty-year career, he has never encountered an

addict who possessed this much methamphetamine for personal use. In fact, Agent

Henry testified a personal use quantity of methamphetamine would not exceed 10

grams—less than 1/5 of the amount recovered in this case. There was absolutely no

evidence presented that 54 grams of methamphetamine could amount to a personal use

quantity. See United States v. Powell, 982 F.2d 1422, 1430 (10th Cir. 1992) (noting it

is well settled that intent to distribute “may be inferred from the possession of a large

quantity of the substance”).

      Then, the DEA’s forensic chemist testified the methamphetamine recovered was

93% pure. Based on this purity level, Agent Henry testified a distributor could mix

the methamphetamine with a “cutting agent” to double the amount of

methamphetamine available for distribution. See United States v. Burns, 624 F.2d 95,

102 n.1 (10th Cir. 1980) (holding “the purer the drug the more likely that it will be cut

or diluted and resold before being consumed”). The evidence related to the quantity

and quality of methamphetamine recovered is highly probative of distribution, and it

is unlikely a rational jury could find this amount of methamphetamine, at this purity

rate, was intended for personal use.




1
 Special Agent Henry is employed by the Drug Enforcement Administration (“DEA”)
and was qualified as an expert in the field of methamphetamine distribution.
                                           5
      Furthermore,     the   circumstances     surrounding     the   recovery   of   the

methamphetamine support the district court’s determination that a simple possession

instruction was not warranted.      The evidence showed that on March 22, 2018,

Defendant spent $521.22 to rent a car in Fort Smith, Arkansas. The same day, he

traveled from Fort Smith to Oklahoma City, where he paid $187.88 in cash to stay at a

motel. The very next day, Defendant was traveling back toward Fort Smith when the

stop occurred and the methamphetamine was seized. It seems unlikely Defendant

would travel six hours roundtrip, rent a motel, and spend over $700 to obtain

methamphetamine for personal use. Id. at 102 (finding that traveling from San Diego

to Denver and renting a motel room to purchase cocaine is indicative of possession

with intent to distribute rather than mere possession).

      Additionally, Agent Henry surmised Defendant devised a scheme to avoid

detection and destroy the methamphetamine in the event he was caught. Specifically,

Agent Henry testified Defendant used the four gallons of bleach to destroy at least an

additional three pounds of methamphetamine during the ten-mile police pursuit. See

United States v. Winder, 557 F.3d 1129, 1138 (10th Cir. 2009) (finding intentional

flight is circumstantial evidence of guilt generally).       Agent Henry testified this

additional quantity of methamphetamine was packaged in six “heat-sealed” bags to

avoid detection. These additional three pounds of methamphetamine equate to over

1,000 single dose units—a distribution quantity that Agent Henry testified would take

Defendant “years” to use or that Defendant could sell for over $100,000.



                                           6
      All of these circumstances—including Defendant’s trip from Fort Smith to

Oklahoma City, Defendant’s intentional flight and premeditated plan to destroy

evidence, and the additional methamphetamine Defendant likely possessed—suggest a

“sophisticated and expensive operation with larger designs than provision for

[Defendant’s] personal use.” Burns, 624 F.2d at 102.

      Finally, neither the Government nor Defendant presented any evidence

indicative of personal use.      Law enforcement did not find any personal use

paraphernalia in Defendant’s vehicle, such as glass pipes, syringes, or tiny baggies.

Similarly, neither the Government nor Defendant presented any evidence that

Defendant was under the influence of methamphetamine at the time of the stop. Indeed

“[t]here is a surprising lack of evidence which tends to support simple possession.”

Fitzgerald v. United States, 719 F.2d 1069, 1072 (10th Cir. 1983). Although this alone

is not dispositive, “[i]f this is to be a viable dispute, there should be some evidence

which tends to support simple possession.” Id.

      Nevertheless, Defendant argues our holding in United States v. Burns mandates

reversal. In Burns, we held the district court abused its discretion in declining to give

an instruction on mere possession when the evidence showed the defendants traveled

from San Diego, California, to Denver, Colorado, with scales in their luggage, and

purchased $13,000 worth of 100% pure cocaine. 624 F.2d at 102–05. We are not

persuaded Burns controls the analysis here.

      In this case, while law enforcement only collected 54 grams of

methamphetamine, the Government presented expert testimony that Defendant

                                           7
possessed and destroyed an additional $100,000 worth of methamphetamine during the

police pursuit—substantially more than the $13,000 worth of cocaine in Burns.

Moreover, in Burns the Government presented no expert testimony that the amount and

purity of the cocaine seized was indicative of intent to distribute. See 624 F.3d at 101.

In contrast, the Government presented substantial expert testimony in this case that the

amount and purity of the methamphetamine supports the conclusion that Defendant

intended to distribute the methamphetamine.

      Additionally, there was no evidence in Burns that the defendants concocted an

elaborate scheme to destroy evidence if caught. This type of sophistication, as is

present here, is illustrative of an intent to distribute. See United States v. Taylor, 683

F.2d 18, 21 (1st Cir.), cert. denied 459 U.S. 945 (1982) (holding “the complex nature

of the operation” is indicative of intent to distribute). Finally, in Burns the Government

conceded that the jury was “not compelled to draw the inference” that the defendants

had the intent to distribute the cocaine but nevertheless argued that “sufficient evidence

was before them that would allow them to do so.” Burns, 624 F.2d at 104 n.2. The

Government has made no such concession in this case.             Thus, Burns is easily

distinguishable from the instant case and does not control our analysis here.2


2
  Defendant’s contention that our decision in United States v. Trujillo requires reversal
is similarly without merit. In Trujillo, we held the district court did not abuse its
discretion in deciding to give an instruction on the lesser included offense of mere
possession. 390 F.3d 1267, 1275 (10th Cir. 2004). Although the district court thought
it was a “close question,” the district court decided to give the instruction because the
Government relied solely on the quantity of drugs to prove intent to distribute, and yet,
no Government witness testified the amount of cocaine seized was consistent with
distribution. Id. at 1270–73. In this case, the Government’s expert witness testified
                                            8
      Ultimately, we may only reverse the district court’s denial of the lesser included

instruction if we are “convinced a rational jury could convict on the lesser charge and

acquit on the greater charge.” Pacheco, 884 F.3d at 1048 (citing United States v.

Moore, 108 F.3d 270, 272 (10th Cir. 1997)). Given the substantial evidence supporting

a distribution theory, and the complete lack of evidence supporting a personal use

theory, we cannot say the district court abused its discretion in declining to give an

instruction for the lesser included offense of simple possession.

                                         ***

      Accordingly, for the reasons provided herein, the district court is affirmed.




the amount of methamphetamine at issue was indisputably a distribution quantity.
Moreover, the large quantity of methamphetamine seized was only one indication of
Defendant’s intent to distribute.    As previously stated, the quality of the
methamphetamine recovered and the circumstances surrounding the recovery of the
methamphetamine were also indicative of drug distribution. Thus, Trujillo is
inapposite.
                                           9
