Giving away small amount of marijuana without remuneration is not simple possession and therefore not lesser-included offense of distribution

JURY INSTRUCTION United States v. Eddy, No. 07-5081, ___ F.3d ___ (10th Cir. April 29, 2008)(N.D. Oklahoma). Appeal of conviction for possession of marijuana with intent to distribute and for distribution of marijuana in violation of 21 U.S.C. § 841(a)(1), (b)(1)(D). HELD: (1) District court’s failure to instruct jury on lesser included offense is not constitutional error. (2) District court did not err by not instructing jury sua sponte that simple possession of marijuana was a lesser included offense of distribution. Title 21 U.S.C. § 841(b)(4) does not define simple possession as distributing a small amount of marijuana without remuneration. Rather, it merely defines a mitigation exception for sentencing purposes for conviction of marijuana distribution in violation of 21 U.S.C. § 841(b)(1)(D). Accordingly, distributing small amount of marijuana without remuneration is not simple possession and, therefore, is not lesser-included offense of distribution charge. Read the opinion here.