UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                   No. 96-4528

CATALINO ZELAYA,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge.
(CR-95-493)

Submitted: April 30, 1998

Decided: June 19, 1998

Before WILKINS, NIEMEYER, and LUTTIG,
Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Cary S. Greenberg, Michael D. Breen, GREENBERG, BRACKEN &
TRAN, P.C., Alexandria, for Appellant. Helen S. Fahey, United
States Attorney, W. Neil Hammerstrom, Jr., Assistant United States
Attorney, Alexandria, Virginia, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Catalino Zelaya appeals his conviction and sentence for conspiracy
to distribute cocaine and cocaine base in violation of 21 U.S.C. § 846
(1994). He contends that it was plain error for him to be clothed in
prison attire during the one-day trial. Zelaya also contends the court
erred in refusing to give him a two-level reduction in the offense level
for his role in the offense, in considering a prior drug conviction when
determining his criminal history category and sentencing him based
on crack cocaine, in light of the 100-to-1 sentencing ratio between
crack cocaine and powder cocaine. Finding no error, we affirm.

At the outset of trial, Zelaya's defense counsel informed the court
that he told Zelaya he should wear regular clothes rather than prison
clothes during the trial. At one point, counsel stated he did not think
that Zelaya understood or appreciated what was occurring. At another
point, counsel stated that Zelaya "factually" understood what was
occurring. At the Government's suggestion, the court gave counsel
time to discuss with Zelaya whether he wanted to proceed to trial in
his prison clothing. After the discussion, counsel reported to the court
that "it is my understanding that Zelaya has no objection to proceed-
ing in his current clothing. He understands he does have a right to get
other clothes, but my understanding is he is willing to proceed wear-
ing these." The court asked Zelaya whether this was correct, to which
Zelaya said yes.

Although there may be instances when a defendant prefers to wear
prison attire during a jury trial, compelling a criminal defendant to
wear prison attire may interfere with the defendant's right to a fair
trial. See Estelle v. Williams, 425 U.S. 501, 503-05, 508 (1976). The
defendant's failure to object to wearing prison attire "is sufficient to
negate the presence of compulsion necessary to establish a constitu-
tional violation." Id. at 512-13. Zelaya contends that he objected to

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wearing his prison attire. However, the record clearly reveals that
Zelaya did not object to proceeding to trial in his prison attire. In fact,
the record reveals that he considered his options and chose to remain
in prison attire.

Zelaya contends that the court should have conducted its own
inquiry as to whether Zelaya knowingly and voluntarily waived his
right to wear regular clothes. The Supreme Court in Estelle specifi-
cally stated that it would not impose such an obligation on trial courts,
leaving such decisions to the defendant and his attorney. See Estelle,
425 U.S. at 512. Moreover, any representation by counsel indicating
that Zelaya did not understand the nature of the proceedings was sub-
sequently nullified by counsel's final remark on the matter stating that
Zelaya understood his rights. Accordingly, we find the court did not
err in permitting Zelaya to remain in his prison attire.

Zelaya argues that his base offense level should have been
decreased because he was a minor participant in the conspiracy.* He
contends that his brother was responsible for distributing much of the
crack cocaine. The court's decision not to award Zelaya such a reduc-
tion is reviewed for clear error. See United States v. Love, 134 F.3d
595, 606 (4th Cir. 1998). Zelaya was assigned a base offense level of
32 based solely upon the 111.8 grams of crack cocaine he sold to an
informant. He was not held responsible for the other amounts of crack
cocaine distributed by his brother. Since he was only held responsible
for crack cocaine he directly distributed, he is not entitled to a reduc-
tion for his role in the offense. Furthermore, the evidence showed that
Zelaya foresaw the expanse of the conspiracy when he told the infor-
mant that he could "make good money" dealing with his brother and
then set about introducing the two to each other. We find that the
court did not err in this instance.

Zelaya also contends that the court erroneously assessed him two
criminal history points for a state conviction for possession with
intent to distribute cocaine rather than considering the conviction as
relevant conduct. A sentence which is for conduct that is part of the
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*U.S. Sentencing Guidelines Manual § 3B1.2 (1995) permits a two to
four level reduction in the base offense level if the defendant was a
minor or minimal participant in the offense.

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instant offense should not be counted as a prior sentence in determin-
ing criminal history. Conduct is part of the instant offense if it is rele-
vant conduct under USSG § 1B1.3 (1995). See USSG § 4A1.2(a)(1),
comment. (n.1) (1995). Conduct that is part of the same course of
conduct or part of a common scheme or plan should be considered
relevant conduct. See USSG § 1B1.3(a)(2). Whether or not a prior
conviction should be considered as part of the defendant's criminal
history or relevant conduct is a fact-specific determination to be made
by the district court. See United States v. McManus, 23 F.3d 878, 888
(4th Cir. 1994). In determining whether convictions are part of a com-
mon scheme or plan, a court should consider whether the crimes were
committed within a short period of time, in close geographic proxim-
ity, directed at a common victim, solved during the same investiga-
tion, had similar modus operandi, compelled by similar motives, and
involved the same substantive offense. See United States v.
Breckenridge, 93 F.3d 132, 138 (4th Cir. 1996).

We do not find that the court clearly erred in determining that
Zelaya's state sentence should be used to determine his criminal his-
tory category. The conspiracy and the state possession incident did
not occur within a short period of time. According to the federal
indictment, the conspiracy concluded in March 1994. The state pos-
session incident occurred a year later in April 1995 when Zelaya was
arrested after a routine traffic stop. See, e.g. , United States v. Mullins,
971 F.2d 1138, 1145 (4th Cir. 1992) (uncharged conduct occurring
six months prior to charged conduct did not occur within temporal
proximity). Nor did the state incident involve any other members of
the conspiracy. Furthermore, Zelaya was not charged with the same
substantive offense. Although Zelaya would describe his role in the
conspiracy and the state offense as only a delivery person, this alone
does not compel a finding that both convictions were part of a com-
mon scheme or plan. It is not sufficient that the state conviction was
similar to the charged offense if they are not part of the same course
of conduct or plan. See Mullins, 971 F.2d at 1145.

Finally, Zelaya contends that the 100-to-1 sentencing ratio between
crack cocaine offenses and powder offenses cannot be justified. This
Court has firmly rejected this claim. See United States v. Banks, 130
F.3d 621, 625-26 (4th Cir. 1997), cert. denied , ___ U.S. ___, 1998
WL 111615 (U.S., Apr. 6, 1998) (No. 97-8221).

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For the foregoing reasons, Zelaya's conviction and sentence are
affirmed. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the court
and argument would not aid the decisional process.

AFFIRMED

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