                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 07-4608



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


LAWRENCE MCARTHUR WEBB,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Glen E. Conrad, District Judge.
(7:06-cr-00079-GEC)


Submitted:   October 17, 2008             Decided:   February 3, 2009


Before KING and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Melissa W. Friedman, ANDERSON & FRIEDMAN, Roanoke, Virginia, for
Appellant.   John L. Brownlee, United States Attorney, Jean B.
Hudson, Assistant United States Attorney, Charlottesville,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Following    a   jury   trial,    Lawrence   McArthur   Webb   was

convicted of conspiracy to possess with intent to distribute more

than fifty grams of cocaine base and more than five kilograms of

cocaine, in violation of 21 U.S.C. § 846 (2000), and two counts of

distribution of cocaine, in violation of 21 U.S.C. § 841(a) (2000).

Webb was sentenced to 240 months on the conspiracy count and 120

months on the distribution counts, to run concurrently.                   Webb

appeals, contending that the district court erred by: (1) denying

Webb’s motion to suppress his statements; (2) refusing to give the

jury a lesser-included offense instruction; (3) denying Webb’s

motion for a new trial based on improper remarks by the prosecutor

in his closing; and (4) denying Webb’s motion to continue the trial

based upon an absent character witness.             Finding no reversible

error, we affirm.



                                       I.

           Webb first contends that the district court erred by not

suppressing his statements to Agent Cunningham because Webb had

previously invoked his right to counsel. On appeal from a district

court’s determination on a motion to suppress, the factual findings

are   reviewed   for   clear   error   and   the   district   court’s   legal

determinations are reviewed de novo. Ornelas v. United States, 517

U.S. 690, 699 (1996); United States v. Rusher, 966 F.2d 868, 873


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(4th Cir. 1992).       The evidence is reviewed in the light most

favorable to the government, the prevailing party in the district

court.   United States v. Seidman, 156 F.3d 542, 547 (4th Cir.

1998).

            A criminal defendant’s “Sixth Amendment right to counsel

is violated when incriminating statements deliberately elicited by

the government, made after indictment and outside the presence of

counsel, are admitted against the defendant at trial.”              United

States v. Love, 134 F.3d 595, 604 (4th Cir. 1998) (internal

quotation marks omitted). “[A]n accused . . . having expressed his

desire to deal with the police only through counsel, is not subject

to further interrogation by the authorities until counsel has been

made available to him, unless the accused himself initiates further

communication,   exchanges,    or   conversations    with   the   police.”

Edwards v. Arizona, 451 U.S. 477, 484-85 (1981); see Michigan v.

Jackson, 475 U.S. 625, 636 (1986) (applying Edwards to Sixth

Amendment    cases).     If   the   accused   does   not    initiate   the

conversation, any waiver of rights made after further police

interrogation is invalid.     Jackson, 475 U.S. at 636.

            The Government only need show by a preponderance of the

evidence that Webb initiated contact and waived his rights.            See

Colorado v. Connelly, 479 U.S. 157, 168 (1986).       It is the district

court’s role to determine the credibility of the witnesses and this




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court    reviews   those    determinations    for   clear   error.        United

States v. Murray, 65 F.3d 1161, 1169 (4th Cir. 1995).

            Our review of the record leads us to conclude that Webb

initiated contact with Agent Cunningham and did not invoke his

right to counsel at any time during Agent Cunningham’s visit to the

jail.    Webb agrees that Agent Cunningham came to the jail upon his

request, but argues that because he was held in isolation for four

days, without access to the general inmate population or the

telephone to contact an attorney, the conditions were such that he

was at his “breaking point,” and Agent Cunningham easily overbore

his will, such that even if he waived his right to counsel, that

waiver was not knowing or voluntary.         Despite Webb’s argument, the

record    reflects   that    he   clearly    waived   his   rights   without

requesting counsel and Agent Cunningham did not employ coercive

tactics. The district court accordingly did not err by denying the

motion to suppress.



                                     II.

            Webb next contends that the district court erred when it

failed to give a “lesser-included offense” jury instruction.                Webb

did not object to the conspiracy instruction given by the district

court or proffer an example of the requested instruction, but

proffered only a special verdict form that the district court

refused.      This   court    generally     reviews   challenges     to    jury


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instructions for an abuse of discretion.                     South Atlantic Ltd.

P’ship v. Riese, 284 F.3d 518, 530 (4th Cir. 2002).                         However,

because   Webb      did   not   specifically       challenge        the    conspiracy

instruction in the district court, this claim is reviewed for plain

error.    See United States v. Olano, 507 U.S. 725 (1993).

              “A district court's refusal to provide an instruction

requested by a defendant constitutes reversible error only if the

instruction:        ‘(1) was correct; (2) was not substantially covered

by the court's charge to the jury; and (3) dealt with some point in

the   trial    so    important[]   that       failure   to   give    the    requested

instruction seriously impaired the defendant’s ability to conduct

his defense.’”        United States v. Lewis, 53 F.3d 29, 32 (4th Cir.

1995) (citing United States v. Camejo, 929 F.2d 610, 614 (11th Cir.

1991)).    “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).        For an element to be “sufficiently

in dispute,” either “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.”

United States v. Walker, 75 F.3d 178, 179 (4th Cir. 1996).




                                          5
           The evidence at trial was not “sharply conflicting,” as

to the drug weight for which Webb was responsible, which was

significantly greater than the amounts charged in the indictment.

Thus, the district court did not plainly err in failing to give a

“lesser-included offense” instruction as to drug weight.



                                      III.

           Webb next argues that the district court erred when it

denied his motion for a new trial based upon the Government’s

improper inclusion in its closing argument of a brief remark

attributed to Webb that was not in evidence, and was purportedly

obtained through an immunized proffer.           Webb argues that use of

this remark violated his Fifth Amendment right against self-

incrimination.

           A prosecutor’s improper closing argument may “so infect[]

the trial with unfairness as to make the resulting conviction a

denial of due process.”     United States v. Wilson, 135 F.3d 291, 297

(4th Cir. 1998) (quoting Darden v. Wainwright, 477 U.S. 168, 181

(1986)) (internal quotation marks omitted). In determining whether

a defendant’s due process rights were violated by a prosecutor’s

closing argument, this court considers whether the remarks were, in

fact,   improper,   and,   if   so,   whether   the   improper   remarks   so

prejudiced the defendant’s substantial rights that the defendant

was denied a fair trial.        Id.


                                       6
           Our review of the record convinces us that although the

remark was improper, it was not so prejudicial as to deny Webb a

fair trial.    Wilson, 135 F.3d at 299.         We conclude the district

court properly denied the motion for a new trial.



                                    IV.

           Webb also alleges that the district court erred in

denying his motion to continue the trial based upon the absence of

a defense character witness. On the morning of trial, Webb learned

that a character witness was unavailable to testify at trial

because he was caring for an ailing spouse.            The district court

denied   the   continuance,   but   permitted    the   witness’   expected

testimony to be read to the jury by stipulation, including the

reasons for his absence.       The court advised the jury that the

stipulated testimony could be given the same weight as evidence as

if the witness had been present and testifying in the court room.

           A district court’s refusal to grant a continuance is

reviewed for abuse of discretion.         Morris v. Slappy, 461 U.S. 1,

11-12 (1983); United States v. Speed, 53 F.3d 643, 644 (4th Cir.

1995).   An abuse of discretion in this context is “‘an unreasoning

and arbitrary insistence upon expeditiousness in the face of a

justifiable request for delay.’”          United States v. LaRouche, 896

F.2d 815, 823 (4th Cir. 1990) (quoting Morris, 461 U.S. at 11-12).




                                    7
We conclude the district court did not abuse its discretion in

denying the motion to continue the trial.

           Accordingly, we affirm Webb’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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