                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 09-4493


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ANTWAIN WATKINS,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.  Henry E. Hudson, District
Judge. (3:08-cr-00487-HEH-1)


Submitted:   April 13, 2010                 Decided:   April 22, 2010


Before MOTZ, KING, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Michael S. Nachmanoff, Federal Public Defender, Frances H.
Pratt, Robert J. Wagner, Assistant Federal Public Defenders,
Richmond, Virginia, for Appellant.     Neil H. MacBride, United
States Attorney, Michael A. Jagels, Special Assistant United
States Attorney, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Antwain Watkins appeals his conviction by a jury of

distribution        of    five        or    more    grams      of    crack    cocaine,       in

violation      of    21    U.S.C.          § 841(a)(1),       (b)(1)(B)      (2006).         On

appeal, Watkins argues that the district court erred in failing

to   instruct       the        jury    on     the    lesser     included          offense    of

distribution of less than five grams of crack cocaine, and that

the court should have ensured that the verdict form allowed the

jury the option of finding him guilty of the lesser offense.                                 We

affirm.

               We review the district court’s decision to give a jury

instruction      and      to    use    a    special     verdict      form    for    abuse    of

discretion.         United States v. Passaro, 577 F.3d 207, 221 (4th

Cir. 2009); United States v. Udeozor, 515 F.3d 260, 271 (4th

Cir. 2008).          In this case, however, because Watkins did not

request    a    lesser         included       offense    instruction         or    request    a

special    verdict        form,       we    review      for    plain    error.         United

States v. Olano, 507 U.S. 725, 732-35 (1993).                                “To establish

plain error, [Watkins] must show that an error occurred, that

the error was plain, and that the error affected his substantial

rights.”       United States v. Muhammad, 478 F.3d 247, 249 (4th Cir.

2007).          Even      if      Watkins          satisfies        these    requirements,

“correction         of     the        error     remains        within       [the     court’s]

discretion, which [the court] should not exercise . . . unless

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the error seriously affect[s] the fairness, integrity or public

reputation of judicial proceedings.”             Id. (internal quotation

marks omitted).

           “[I]t   is   now   beyond   dispute   that   the   defendant    is

entitled to an instruction on a lesser included offense if the

evidence would permit a jury rationally to find him guilty of

the lesser offense and acquit him of the greater.”               Keeble v.

United States, 412 U.S. 205, 208 (1973).            To justify 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, 1259 (4th Cir. 1993).             To be sufficiently

in dispute, 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.             Id.     Our

review of the record leads us to conclude that the district

court did not err in failing to sua sponte instruct the jury on

the lesser included offense of distribution of less than five

grams of crack cocaine, or in failing to include that option on

the verdict form.

           Accordingly,       we   affirm   Watkins’    conviction.       We

dispense   with    oral   argument     because    the   facts   and     legal



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contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                           AFFIRMED




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