What is the standard of review of a district court's refusal to give a requested jury instruction of simple possession of a controlled substance?

The proper standard of review of a district court's refusal to give a requested jury instruction is somewhat uncertain in this circuit. Some cases have applied the abuse of discretion standard, while others have reviewed de novo. See United States v. Whitehead, 896 F.2d 432, 434 (9th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 342, 112 L.Ed.2d 306 (1990) (describing conflict); United States v. Sotelo-Murillo, 887 F.2d 176, 179 (9th Cir.1989) (same). We need not attempt to resolve this apparent conflict here because even applying the more deferential abuse of discretion standard we are persuaded that the district court erred in failing to give the requested instruction.

"A defendant is entitled to a lesser included offense instruction when the elements of the lesser offense are a subset of the elements of the charged offense and a factual basis supports such an instruction." United States v. Powell, 932 F.2d 1337, 1341 (9th Cir.) (internal quotation marks omitted), cert. denied, --- U.S. ----, 112 S.Ct. 256, 116 L.Ed.2d 210 (1991). Simple possession of a controlled substance is a lesser included offense with respect to possession with intent to distribute. Id. at 1341-42. To establish the required factual basis, the defendant must show that the jury could rationally find him guilty of the lesser offense while acquitting him of the greater. Id. at 1342.