                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4638


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

TYMON JAMES WELLS,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Rock Hill. Cameron McGowan Currie, District
Judge. (0:10-cr-00869-CMC-1)


Submitted:   December 12, 2011            Decided:   December 22, 2011


Before MOTZ, KING, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Joshua Snow Kendrick, JOSHUA SNOW KENDRICK, P.C., Columbia,
South Carolina, for Appellant.      William N. Nettles, United
States Attorney, Robert C. Jendron, Jr., Assistant United States
Attorney, Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Tymon   James   Wells    appeals   from   his   conviction   for

possession of a firearm by a convicted felon, in violation of 18

U.S.C. § 922(g)(1) (2006), possession with intent to distribute

marijuana, in violation of 21 U.S.C. § 841(a)(1) (2006), and

using, brandishing, and discharging a firearm in relation to a

drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)

(2006).    On appeal, Wells challenges the district court’s answer

to a jury question, claiming that the district court’s response

was an incorrect statement of law that led the jury to convict

him of violating 21 U.S.C. § 841(a)(1).         We affirm.

            Because Wells timely objected to the formulation of

the district court’s response to the jury question at issue, we

review for an abuse of discretion the district court’s decision

to respond and the form of that response.               United States v.

Foster, 507 F.3d 233, 244 (4th Cir. 2007).            “In responding to a

jury’s    request   for   clarification   on   a   charge,    the   district

court’s duty is simply to respond to the jury’s apparent source

of confusion fairly and accurately without creating prejudice,”

and an error requires reversal only if it is prejudicial based

on the record as a whole.      Id.

            Upon review of the record and the controlling law in

this Circuit, we find that the district court’s response to the

jury’s question was a correct statement of law and not an abuse

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of its discretion.            We have held that an individual can be

convicted under 21 U.S.C. § 841(a)(1) when he has possessed a

controlled substance with the intent to share it with others.

United States v. Washington, 41 F.3d 917, 920 (4th Cir. 1994);

see also United States v. Wallace, 532 F.3d 126, 129-31 (2nd

Cir. 2008).        Therefore, considering the evidence produced during

Wells’ trial, the district court was correct when it informed

the    jury   that     the   passing     of    a     marijuana      cigarette,       or   a

“blunt,”      to   one’s     friend     could,       but    need    not    necessarily,

constitute     evidence      indicating        the    intent       to    distribute    the

drug.         Wells’     broad    assertion          that      establishing         shared

possession of a controlled substance negates the possibility of

finding that one of the possessors intended to distribute the

substance to the other is a misstatement of the requirements for

conviction under 21 U.S.C. § 841(a)(1).

              We find unpersuasive Wells’ reliance on United States

v. Swiderski, 548 F.2d 445 (2d Cir. 1977).                         We have previously

declined to consider whether the Second Circuit’s narrow and

fact-bound holding in Swiderski is a proper statement of law in

this    Circuit,     and     conclude    that        we    need    not    resolve     that

question here.         Washington, 41 F.3d at 920 n.2.                     The facts of

Wells’ case are far different from those the court considered in

Swiderski, and, therefore, we find the reasoning and holding in

that case inapplicable to our present inquiry.

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          Therefore, we affirm Wells’ conviction.              We dispense

with oral argument because the facts and legal conclusions are

adequately   presented   in   the   materials   before   the    court   and

argument would not aid in the decisional process.



                                                                  AFFIRMED




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