United States v. Carlos Ponce, 2013 U.S. App. LEXIS 1090

Ponce was in a vehicle stopped by Lincoln, Nebraska officers; 28.28 grams of methamphetamine were found in a case near his foot, with additional meth residue on a scale and pipe in the vehicle.
The vehicle contained cash and items (knife, scale, cash) the testimony linked to distribution activity; Rivera, the driver, was a known methamphetamine user/distributor.
A trial established Koepke, an experienced narcotics investigator, as an expert who testified about typical distribution indicators (team operation, cash proceeds, scales, quantities).
The district court denied Ponce's request for a simple possession instruction; the jury convicted him of possession with intent to distribute five grams or more of methamphetamine.
Ponce challenged the sentence as substantively unreasonable, arguing age-related factors and prior crimes should warrant variance, but the district court sentenced him at the bottom of the career-offender guideline range of 262–327 months.
The court affirmed both the denial of the lesser-included instruction and the sentence after applying deference standards on appeal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Entitlement to lesser-included instruction	Ponce contends there was evidence for simple possession.	The district court properly denied due to lack of evidence of lack of intent to distribute.	Instruction properly denied; evidence supports intent to distribute.
Reasonableness of sentence	Age, extant circumstances, and past crimes warrant a variance from career-offender guidelines.	No variance warranted; within guideline range appropriate given history.	Sentence within advisory range; district court acted within discretion.

Keeble v. United States, 412 U.S. 205 (U.S. 1973) (entitlement to instruction on lesser included offense when evidence permits)
United States v. Gentry, 555 F.3d 659 (8th Cir. 2009) (test for lesser-included instruction based on dispute in essential elements)
United States v. Santoyo-Torres, 518 F.3d 620 (8th Cir. 2008) (affirming denial of simple possess instruction where distribution indicators exist)
United States v. Lopez, 42 F.3d 463 (8th Cir. 1994) (intent to distribute may be inferred from quantity, purity, and paraphernalia)
United States v. Romero, 856 F.2d 1020 (8th Cir. 1988) (dealers may also be users; distribution evidence can exist with personal use)
United States v. Short, 805 F.2d 335 (8th Cir. 1986) (upholding denial of simple possession instruction despite lack of direct distribution evidence)
United States v. Maloney, 466 F.3d 663 (8th Cir. 2006) (age is not ordinarily relevant to departures from guidelines)
United States v. Jordan, 573 F.3d 586 (8th Cir. 2009) (sentence within guideline range presumed reasonable)