                                                               [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________           FILED
                                                U.S. COURT OF APPEALS
                             No. 10-13973         ELEVENTH CIRCUIT
                         Non-Argument Calendar    NOVEMBER 29, 2011
                       ________________________        JOHN LEY
                                                        CLERK
                D.C. Docket No. 5:08-cr-00043-WTH-GRJ-2



UNITED STATES OF AMERICA,

                               llllllllllllllllllllllllllllllllllllllllPlaintiff-Appellee,

                                   versus

OSBALDO FARIAS,
a.k.a. Baldo,

                             llllllllllllllllllllllllllllllllllllllllDefendant-Appellant.

                      ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                           (November 29, 2011)

Before BARKETT, MARCUS and BLACK, Circuit Judges.

PER CURIAM:
       Osbaldo Farias appeals his conviction for the lesser included offense of

second degree murder, pursuant to 18 U.S.C. § 1111(a). On appeal, Farias argues

the district court abused its discretion in (1) denying his request for instructions on

voluntary manslaughter, and (2) responding to a jury question regarding the

meaning of the terms “wanton,” “callous,” and “reckless” as used in the jury

instructions.1 After review, we affirm Farias’s conviction.

                                                I.

       Farias first argues the district court abused its discretion by denying his

request for instructions on the lesser included offense of voluntary manslaughter.

Specifically, he claims the district court erred in determining there was no proof of

“sudden quarrel or heat of passion.”

       Voluntary manslaughter “is the unlawful killing of a human being without

malice . . . . [u]pon a sudden quarrel or heat of passion.” 18 U.S.C. § 1112(a).

Farias failed to show any evidence of “sudden quarrel or heat of passion” caused

by adequate provocation. Rather, the evidence showed the victim was unarmed,


       1
          Farias also argues the district court abused its discretion in denying his request for
instructions on the lesser included offense of assault with a dangerous weapon. Farias conceded
before the district court that assault with a dangerous weapon was “not a lesser included
[offense], unlike vol[untary] and invol[untary manslaughter].” We are now precluded from
reviewing this issue based on the doctrine of invited error. See United States v. Brannan, 562
F.3d 1300, 1306 (11th Cir. 2009) (noting the doctrine of invited error is implicated when a party
induces or invites the district court into making an error).

                                                2
was attacked from behind, quickly fell to the ground, and never got back to his

feet after the initial attack. The evidence also showed the assault was planned

with another inmate, that Farias followed through with the assault, and that Farias

continued the assault for an extended period of time until a corrections officer

intervened. Thus, the district court did not abuse its discretion in denying Farias’s

request for a voluntary manslaughter instruction. See United States v. Williams,

197 F.3d 1091, 1095 (11th Cir. 1999) (noting “[a]n abuse of discretion may occur

where the evidence would permit the jury rationally to acquit the defendant of the

greater, charged offense and convict him of the lesser”).

                                         II.

      Farias next argues the district court abused its discretion in responding to

the jury question regarding the definitions of the terms “wanton,” “callous,” and

“reckless” by defining “wanton and reckless” in the conjunctive and improperly

blending the terms and their meanings.

      “A challenged supplemental jury instruction is reviewed as part of the entire

jury charge, in light of the indictment, evidence presented and argument of counsel

to determine whether the jury was misled and whether the jury understood the

issues.” United States v. Lopez, 590 F.3d 1238, 1248 (11th Cir. 2009),

cert. denied, 131 S. Ct. 413 (2010). We will generally only reverse a district

                                          3
court’s refusal to give a requested jury instruction “when we are left with a

substantial and ineradicable doubt as to whether the jury was properly guided in its

deliberations.” Id. (citation omitted).

      The district court did not abuse its discretion in its response to the jury’s

question. The district court reasonably determined that the jurors were

considering these terms as used in its prior explanation of murder and involuntary

manslaughter. Moreover, the district court provided definitions consistent with

Farias’s proposed definitions and with the dictionary definitions of the terms. See

Lopez, 590 F.3d at 1248.

      AFFIRMED.




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