was not substantially swayed by the error.” Id. at 765, 66 S.Ct. 1239. That is, if the “error itself had substantial influence” on the judgment, then it is not harmless. Id. However, we need no street value of the methamphetamine was between $2,160 and $4,140. And according to defense counsel, based on the government expert Amatore's stated typical dosage size, the quantity of the drugs was the equivalent of between forty-eight and ninety-six doses. Although we have doubts as to the reliability of this calculation, since it does not appear to take into account the purity of the methamphetamine that Hernandez had, the government did not challenge this estimate and so we assume that it is reasonable. 5 . See Beck v. Alabama, 447 U.S. 625, 637-38, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), (<HOLDING>). But see Gilmore v. Taylor, 508 U.S. 333,
holding that the trial court committed fundamental error by giving the standard jury instruction for attempted manslaughter by act holding that tendering of assault instruction in attempted capital murder case was sufficient under rule 5a18 to alert the trial judge and the commonwealth that simple assault is a lesserincluded offense of attempted capital murder and that the defendant believed sufficient evidence supported granting the instruction holding that where jury was instructed on both a greater offense and lesserincluded offense and the jury convicted on the lesserincluded offense the double jeopardy provision prohibited retrial on the greater offense holding that beck requires that a lesser included offense instruction be given when the evidence warrants such an instruction as a matter of due process in a capital case holding that due process was violated by the states capital punishment statute that prevented the trial court from giving the jury the option of convicting on a lesserincluded noncapital offense where there was sufficient evidence for such a jury instruction