Minor v. United States

I join fully in the court’s opinion, but I would go one step further. I would hold that, as a matter of law, possession is not and can never be a lesser included offense of distribution because there is no overlap between the two offenses.

“A lesser-included offense instruction is only proper where the charged greater offense requires the jury to find a disputed factual element which is not required for conviction of the lesser-included offense.” Sansone v. United States, 380 U.S. 343, 350, 85 S.Ct. 1004, 1009, 13 L.Ed.2d 882 (1965) (citations omitted). More recently, the Supreme Court has…