United States v. Waugh, 950 F.3d 665

Trooper observed Nowlin Waugh Jr. driving erratically on I-40, refused to yield, and police pursued him about ten miles before performing a tactical vehicle intervention to stop him.
Officers found in the vehicle shards of suspected methamphetamine, six heat-sealed kilo-sized bags ripped open, shrink wrap, multiple gallon bottles of bleach, and trashcans; interior smelled of bleach and was wet.
The largest recovered shards were tested and weighed 54.19 grams of methamphetamine at 93% purity; agents testified this amount and purity supported distribution, and that Waugh likely destroyed additional methamphetamine during the chase.
Waugh was charged with possession with intent to distribute 50+ grams of methamphetamine and proceeded to trial; he argued lack of intent to distribute and requested a lesser-included instruction for simple possession, which the district court denied.
The district court concluded there was no evidence of personal use and substantial evidence of distribution (quantity, purity, packaging, bleaching, travel/behavior), convicted Waugh, and he appealed the refusal to give the lesser instruction.
The Tenth Circuit applied the governing lesser-included-offense test and affirmed, holding no rational jury could conclude mere possession given the evidence of distribution and the absence of indicia of personal use.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court erred by refusing to give a lesser-included-offense instruction on simple possession	Government: Quantity, purity, packaging, bleaching/destroying evidence, travel and evasive flight support an inference of intent to distribute and foreclose a reasonable theory of personal use	Waugh: Evidence left intent in dispute; jury could rationally find mere possession and therefore the lesser instruction was required	Affirmed — no abuse of discretion. Given the quantity/purity, expert testimony, bleaching/efforts to destroy evidence, travel/packaging, and lack of personal-use indicia, a rational jury could not convict only of simple possession

United States v. Pacheco, 884 F.3d 1031 (10th Cir. 2018) (standard for when lesser-included instruction is required)
Keeble v. United States, 412 U.S. 205 (1973) (policy underpinning lesser-included instructions)
United States v. Burns, 624 F.2d 95 (10th Cir. 1980) (possession of large quantities supports inference of distribution)
United States v. Trujillo, 390 F.3d 1267 (10th Cir. 2004) (declining lesser-included instruction where Government relied only on quantity and provided no expert tying amount to distribution)
United States v. Powell, 982 F.2d 1422 (10th Cir. 1992) (intent to distribute may be inferred from large quantity)
United States v. Winder, 557 F.3d 1129 (10th Cir. 2009) (flight as circumstantial evidence of guilt)
Fitzgerald v. United States, 719 F.2d 1069 (10th Cir. 1983) (noting lack of personal-use evidence undermines a mere-possession theory)
United States v. Moore, 108 F.3d 270 (10th Cir. 1997) (standard for reversal of refusal to give lesser instruction)