UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                   No. 98-4280

CHRISTOPHER ERVIN HOWIE,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert R. Merhige, Jr., Senior District Judge.
(CR-97-276)

Submitted: October 30, 1998

Decided: January 22, 1999

Before WIDENER, WILLIAMS, and MOTZ, Circuit Judges.

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Affirmed in part, vacated in part, and remanded in part by unpub-
lished per curiam opinion.

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COUNSEL

Thomas B. Weidner, IV, Van C. Ernest, WEIDNER & ERNEST,
P.C., Richmond, Virginia, for Appellant. Helen F. Fahey, United
States Attorney, George Metcalf, Assistant United States Attorney,
Richmond, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Christopher Ervin Howie appeals from his convictions for posses-
sion with intent to distribute crack cocaine and aiding and abetting,
in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (1994). Howie
contends that: (1) the district court erred in admitting opinion testi-
mony from a government witness; (2) the district court erred in refus-
ing to instruct the jury on simple possession; (3) the district court
erred in denying Howie's motion to suppress; and (4) the district
court erred in permitting the jury to convict Howie of aiding and abet-
ting without being instructed as to the charge.

On August 1, 1997, Richmond Police Detectives Ron Armistead
and Stephanie Ruffin and Petersburg Police Officer Anthony Patter-
son were assigned to the Drug Interdiction Task Force at the Grey-
hound bus station in Richmond, Virginia. While on duty at 2:45 a.m.,
Armistead observed passengers as they exited a bus that had just
entered the terminal. Armistead also observed Howie stand up and
place a black plastic bag with white letters in the overhead compart-
ment above his seat, look around, and quickly sit back down. Howie
sat there for a moment and then got off the bus.

At approximately 4:00 a.m., just minutes after the bus driver called
for people to reboard the bus, Armistead approached Howie, dis-
played his badge, identified himself and his purpose, and asked to
speak with Howie. Howie produced a picture ID, stated that he was
traveling to North Carolina, and produced his bus ticket to confirm his
statement. Armistead asked Howie if he had any baggage, either in
the overhead compartments or stored underneath the bus, and Howie
replied that he had lost his baggage. Armistead pointed to the black
plastic bag that he watched Howie place in the overhead compartment
and asked if it belonged to Howie; Howie responded that it did not.
Howie reboarded the bus, but he sat in a different seat than he previ-

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ously occupied. Armistead then boarded the bus, retrieved the bag,
and asked everyone on the bus if the bag belonged to anyone. Howie
did not respond; he turned his head and looked out the window. After
no one on the bus claimed ownership of the bag, Armistead removed
the bag from the bus. A search of the bag revealed 61.6 grams of
crack cocaine, soap powder, which is commonly used to mask the
scent of the drug, and a gray T-shirt that officers saw Howie wearing
earlier. Also in Howie's possession was a ticket stub from Greens-
boro, North Carolina, his origination point the previous day.

After he was arrested and given his Miranda* warnings, Howie
stated that he had in fact traveled to New York the previous day. He
stated that he had lost his bag and had returned to Richmond to try
to find it. Howie again denied owning the bag that Armistead
removed from the bus. After some additional questioning, Howie
admitted that he owned the bag.

The district court did not abuse its discretion in admitting Detective
Armistead's testimony that the amount of crack cocaine seized was
not indicative of personal use. Detective Armistead's opinion was
rationally based on his perceptions and his experiences in prior drug
investigations and was helpful to a clear understanding of a fact in
issue, namely, Howie's intent. See Fed. R. Evid. 701; see also United
States v. Brooks, 111 F.3d 365, 371 (4th Cir. 1997) (standard of
review).

The district court's refusal to instruct the jury on simple possession
was not an abuse of discretion. See United States v. Burgos, 55 F.3d
933, 935 (4th Cir. 1995). Howie was not entitled to the instruction for
simple possession because his intent, the distinguishing element
between possession with intent to distribute and simple possession,
was not sufficiently placed in dispute to require a lesser included
offense instruction. See United States v. Walker , 75 F.3d 178, 180
(4th Cir. 1996). There was no direct testimony regarding Howie's
intent in possessing the crack cocaine and an intent simply to possess
for personal use was not fairly inferable from the evidence presented.
See id.
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*Miranda v. Arizona, 384 U.S. 477 (1966).

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We have reviewed the record and the briefs and find that the dis-
trict court did not err in denying Howie's motion to suppress the
drugs seized as a result of the search of the bag. The district court
properly found that Howie abandoned the bag, thereby relinquishing
any expectation of privacy he had in the bag. See Abel v. United
States, 362 U.S. 217, 241 (1960); United States v. Flowers, 912 F.2d
707, 711-12 (4th Cir. 1990). Detective Armistead did not violate
Howie's Fourth Amendment rights by searching what Howie led him
to believe was an abandoned bag. Accordingly, we affirm Howie's
conviction for possession with intent to distribute crack cocaine.

We must vacate Howie's conviction for aiding and abetting. At
trial Howie objected to the government's proposed jury instruction
with respect to aiding and abetting. Because of its position that the
evidence did not support a conviction on that basis, the district court
sustained Howie's position and refused to instruct on aiding and abet-
ting. So only the conviction of possession with intent to distribute was
sent to the jury. The form of verdict, however, executed by the jury
convicted Howie as "guilty as charged in Count 1 of the indictment."
Count 1 of the indictment included 18 U.S.C. § 2 as well as the sub-
stantive count. That mistake was carried forward into the judgment of
conviction on sentencing, which provided that Howie was convicted
of "21 [U.S.C. §] 841(a)(1) & 18 [U.S.C. §] 2." The presentence
report does not mention a conviction for aiding and abetting and there
is no transcript of the sentencing hearing which has been presented to
us on appeal. We feel confident, however, that no conviction for 18
U.S.C. § 2 (aiding) was intended or in fact took place. Such convic-
tion for aiding was plain error under United States v. Olano, 507 U.S.
725 (1993). There was no objection, an error occurred which was
plain and which affected Howie's substantive rights, and the error
affected the fairness or integrity of the proceeding.

Accordingly, we vacate Howie's conviction for aiding and abetting
and remand the case to the district court for the limited purpose of
amending the judgment of conviction to reflect only a conviction for
possession with intent to distribute under 21 U.S.C.§ 841(a)(1). In
the unlikely event that vacating one of Howie's convictions should
affect his sentence, the district court, on remand, should resentence
Howie. Otherwise, on remand the district court should state that the

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sentence is not affected because a conviction for aiding was unin-
tended.

We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid in the decisional process.

AFFIRMED IN PART, VACATED
IN PART, AND REMANDED

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