UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 99-4171

JUAN MENDOZA,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Alexander J. Williams, Jr., District Judge.
(CR-98-304-L)

Submitted: October 8, 1999

Decided: October 25, 1999

Before MURNAGHAN, LUTTIG, and MICHAEL, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

James Wyda, Federal Public Defender, Denise C. Barrett, Assistant
Federal Public Defender, Baltimore, Maryland, for Appellant. Lynne
A. Battaglia, United States Attorney, Andrea L. Smith, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Juan Mendoza appeals his jury conviction of possession with intent
to distribute heroin, in violation of 21 U.S.C.A.§ 841 (West 1999).
We affirm.

Shortly after five o'clock on the morning of July 27, 1998, Men-
doza disembarked from a flight from Los Angeles to Baltimore-
Washington International Airport. Notwithstanding that it was sum-
mer, Mendoza was wearing a long, fur-lined, hooded, leather coat.
His appearance drew the attention of two officers of a Drug Enforce-
ment Administration (DEA) task force, Wooden and Jacobs, who
were assigned to monitor "red-eye" flights for possible drug traffick-
ing. They watched as Mendoza retrieved a duffle bag from the bag-
gage claim area.

Wooden approached Mendoza and began talking with him. He
grew more suspicious of Mendoza when Mendoza stated he planned
to stay in Baltimore for three weeks, because the duffle bag he carried
appeared too small to accommodate a traveler's needs for that long
a stay.

With Mendoza's consent, Jacobs began searching the duffle bag.
Mendoza then expressed misgivings about whether he wanted the
search to continue, so Jacobs stopped. Mendoza then agreed to go
with Wooden and Jacobs to the DEA office to talk further.

At the office, Jacobs noticed a large bulge in Mendoza's left front
pants pocket and asked to see what was in the pocket. Mendoza
pulled out some money from the pocket, but the bulge remained.
Jacobs asked again to see what was causing the bulge. Mendoza then
revealed a clear plastic package containing what Wooden recognized
as "Mexican black tar" heroin, and the officers arrested him. A search
incident to the arrest uncovered another package of heroin in a pocket
of Mendoza's coat. The two packages contained a total of 260 grams
of heroin.

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Mendoza was charged in a single-count indictment with possession
of heroin with intent to distribute. At his jury trial, the Government
presented testimony from the arresting officers and an expert witness
who stated that the heroin Mendoza possessed was worth between
$20,000 and $100,000 on the street and that its purity (one bag was
65% and the other 72% pure) far exceeded common street-level purity
(8% to 15%).

During its deliberations, the jury sent a note asking the court to
"[r]estate the criteria for determining intent to distribute" and posing
two questions: "What is a reasonable criteria[sic] for distinguishing
between personal use or distribution? Is quantity the only criteria
[sic]." The court answered with its original instructions on intent to
distribute. The court refused Mendoza's request for a lesser-included
offense instruction. Mendoza was convicted and sentenced to seventy
months in prison. He appeals.

First, Mendoza challenges the sufficiency of the evidence to sustain
his conviction. We must affirm the jury's verdict if"there is substan-
tial evidence, taking the view most favorable to the Government, to
support it." Glasser v. United States, 315 U.S. 60, 80 (1942); United
States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc). Mendo-
za's challenge centers on the lack of testimony translating the quantity
of heroin he possessed into dosage units. Because of this alleged evi-
dentiary gap, he asserts that the jury could not rationally conclude that
the quantity he possessed was indicative of intent to distribute rather
than personal use.

We disagree. The quantity of heroin was expressed in units (both
grams and dollar value) that the jurors could easily grasp. The jury
could rationally infer that anyone possessing 250 grams of heroin of
65% to 72% purity possessed it with the intent to distribute. We there-
fore conclude the conviction is supported by substantial evidence
when the evidence is viewed in the light most favorable to the Gov-
ernment.

Next, Mendoza contends that the district court erred by refusing to
instruct the jury on the lesser-included offense of simple possession
of heroin. A criminal defendant is not entitled to a lesser-included
offense instruction as a matter of course. See United States v. Walker,

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75 F.3d 178, 180 (4th Cir. 1996). But when "the proof of the element
that differentiates the [greater and the lesser] offense [is] sufficiently
in dispute that the jury could rationally find the defendant guilty of
the lesser offense but not guilty of the greater offense[,]" the court
must give the instruction upon the defendant's request. Id.; see also
Keeble v. United States, 412 U.S. 205, 208 (1973). An element is
"sufficiently in dispute" if the evidence is"sharply conflicting" or the
jury could fairly infer from the evidence that the lesser, but not the
greater, offense was proved. See United States v. Wright, 131 F.3d
1111, 1112 (4th Cir. 1997), cert. denied, ___ U.S. ___, 66 U.S.L.W.
3782 (U.S. June 8, 1998) (No. 97-9034). Here, there was no evidence
that Mendoza used heroin personally and no evidence that he pos-
sessed the heroin for some purpose other than distribution. Thus, the
evidence was not "sharply conflicting."

Moreover, we do not believe that a rational factfinder could fairly
infer that the heroin was for personal use. Comparison with Wright
supports our conclusion. Though we identified in Wright several indi-
cia of intent to distribute other than quantity, Wright possessed crack
cocaine worth only $300-$600, and we held that he was not entitled
to a lesser-included offense instruction. Here, Mendoza possessed
much larger quantities of drugs than Wright; moreover, Mendoza's
intent to distribute is not shown only by that quantity. The heroin's
purity was far higher than street-level purity and an expert witness
testified that "Mexican black tar" heroin is, as its name suggests, a
product of Mexico. Consequently, a person carrying it from Los
Angeles to Baltimore would be more likely to be following the stream
of distribution than one carrying it the other direction. We therefore
find no error in the district court's refusal to instruct the jury on the
lesser-included offense of simple possession of heroin.

Finally, Mendoza alleges that one of the court's instructions on
intent to distribute was misleading and could have suggested to the
jury that the defendant bore some sort of burden of proof. Jury
instructions must be read as a whole, and if the instructions fairly
summarize the law, there is no reversible error. See Henderson v.
Kibbe, 431 U.S. 145 (1977). The court's instructions on intent to dis-
tribute accurately describe the law. Mendoza finds fault with one sen-
tence: "Basically what you are determining is whether the drugs in the
defendant's possession were for his personal use or for purposes of

                     4
distribution." He posits that a person could have some other purpose
for possessing heroin, e.g. to dispose of it, so this sentence suggests
that the jury should find an intent to distribute in the absence of proof
of personal use. We have heard this precise argument before, and we
rejected it. See United States v. Morrison, 991 F.2d 112, 115-16 (4th
Cir. 1993). Morrison compels the same result here.

Accordingly, the judgment of the district court is affirmed. We dis-
pense with oral argument because the facts and legal conclusions are
adequately presented in the materials before the court and argument
would not aid the decisional process.

AFFIRMED

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