UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 95-5904

SOLOMON DUKES, JR., a/k/a Junior,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Charleston.
David C. Norton, District Judge.
(CR-94-589)

Argued: January 28, 1998

Decided: April 21, 1998

Before WILLIAMS, Circuit Judge, PHILLIPS, Senior Circuit Judge,
and FOX, Chief United States District Judge for the
Eastern District of North Carolina, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: William Clifford Wood, Jr., NELSON, MULLINS,
RILEY & SCARBOROUGH, L.L.P., Columbia, South Carolina, for
Appellant. Robert Hayden Bickerton, Assistant United States Attor-
ney, Charleston, South Carolina, for Appellee. ON BRIEF: J. Rene
Josey, United States Attorney, Charleston, South Carolina, for Appel-
lee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

A jury convicted Solomon Dukes (a/k/a "Junior") of (1) conspiracy
to possess with intent to distribute controlled substances in violation
of 21 U.S.C.A. § 846 (West Supp. 1997); (2) possession with intent
to distribute cocaine in violation of 21 U.S.C.A.§ 841(a)(1) (West
1981); (3) possession with intent to distribute cocaine base in viola-
tion of 21 U.S.C.A. § 841(a)(1) (West 1981); and (4) engaging in a
monetary transaction in criminally derived property in violation of 18
U.S.C.A. §§ 2 (West 1969), 1957(a) (West Supp. 1997). As a result
of these convictions, he was sentenced to life imprisonment. Dukes
appeals both his convictions and his sentence. Finding no reversible
error, we affirm.

I.

On July 12, 1994, Dukes was named with seventeen other individu-
als in a thirty-five count indictment; he was charged in seven counts
of the indictment. Those seven counts alleged conspiracy to distribute
controlled substances, possession with intent to distribute cocaine and
cocaine base, engaging in a monetary transaction in criminally
derived property, and money laundering, violations of 21 U.S.C.A.
§ 841(a)(1) (West 1981), 21 U.S.C.A. § 846 (West Supp. 1997), 21
U.S.C.A. § 848 (West Supp. 1997), 18 U.S.C.A.§ 2 (West 1969), 18
U.S.C.A. § 1956(a)(1)(A)(i), (a)(1)(B)(i) (West Supp. 1997), and 18
U.S.C.A. § 1957(a) (West Supp. 1997).

Upon his arrest, Dukes retained William Runyon as counsel. Run-
yon represented him in a detention hearing on July 28, 1994. At that
hearing, the magistrate judge determined that Dukes was a continuing
danger to the community, and declined to grant a bond. After bond
was denied, Dukes retained new counsel, Francis Cornely. Cornely
represented Dukes at a second detention hearing held on October 4,

                    2
1994. At that hearing, Cornely presented more witnesses and, as a
result, the magistrate judge determined that there was substantial evi-
dence of the community's support for Dukes. Consequently, the mag-
istrate judge conditionally granted bond. To obtain bond, Dukes was
required to: (1) attain employment within two weeks of the hearing,
(2) submit to electronic monitoring, and (3) live at his mother's
house. Dukes was unable to obtain employment and remained in jail
pending trial.

On November 1, 1994, Cornely made a motion to reopen the deten-
tion hearing on the ground that the Government had not met its bur-
den of proving that Dukes was a danger to the community. In its
response to that motion, filed on November 10, 1994, the Government
said that "Dukes' counsel can be forgiven for such a self-serving . . .
statement since he does not practice that frequently in federal court
and he does not appear to be well-versed on the applicable authority
relating to the issue of detention." (J.A. at 106 n.3.) Dukes, who had
been assured by Cornely before he was retained that Cornely was
both comfortable in and very familiar with the procedures of federal
court, was distressed by the accusation of inexperience contained in
the response.

As a result of the inconsistency between Cornely's and the Govern-
ment's statements regarding Cornely's experience, Dukes felt that
Cornely had lied to him and therefore had been retained on false pre-
tenses. Although the attorney-client relationship had been progressing
smoothly until that point, Dukes stopped communicating with
Cornely and conveyed to him his desire to fire him and obtain a new
attorney.

On November 14, 1994, Cornely filed a motion to withdraw as
counsel of record and for a continuance of jury selection and trial.
Cornely stated in his motion that Dukes "informed his counsel of
record that he no longer had any confidence in his[attorney's] ability
to represent him based on the remarks made by the Assistant United
States Attorney in his Response to the Defendant's Motion to Re-
Open Detention Hearing." (J.A. at 112.)

The district court held a hearing on the motion to withdraw on
November 18, 1994, approximately ten days before jury selection for

                    3
Dukes' trial was scheduled to begin. During the hearing, the district
court judge had a lengthy discussion with Dukes, questioning him
extensively regarding the reason for his dissatisfaction with Cornely.
During the colloquy between the district court and Dukes, Dukes
stated that although Cornely had been representing him satisfactorily,
the statement in the Government's response had shaken his confi-
dence in Cornely's truthfulness. After its discussion with Dukes, the
district court determined that the breakdown in communication that
had continued for the eight days between the Government's response
and the hearing did not appear to be irreconcilable and had not preju-
diced Duke's defense. Therefore, the district court denied the motion
to withdraw and gave Dukes three options: (1) to continue pro se, (2)
to obtain another attorney who could be ready to proceed with jury
selection in ten days, or (3) to reassert the motion to withdraw if the
breakdown in communication was irrevocable.

Thereafter, the case proceeded to an eight-day trial before a jury.
Dukes was convicted of four of the seven counts with which he had
been charged: (1) conspiracy to distribute controlled substances in
violation of 21 U.S.C.A. § 846; (2) possession with intent to distribute
cocaine in violation of 21 U.S.C.A. § 841(a)(1); (3) possession with
intent to distribute cocaine base in violation of 21 U.S.C.A.
§ 841(a)(1); and (4) engaging in a monetary transaction in criminally
derived property in violation of 18 U.S.C.A. §§ 2, 1957(a). He was
acquitted of two counts of possession with intent to distribute cocaine
base in violation of 21 U.S.C.A. § 841(a)(1), and one count of money
laundering in violation of 18 U.S.C.A. §§ 2, 1956(a)(1)(B)(i).

A United States Probation Officer prepared a presentence report to
which Dukes' attorney filed objections. Timely responses to those
objections were filed by the Government. A sentencing hearing was
held on October 2, 1995, during which the district court addressed
Duke's objections, adopted the modified presentence report, and sen-
tenced Dukes. Dukes' four convictions were grouped together for sen-
tencing. Because Dukes was held responsible for the equivalent of
over 30,000 kilograms of marijuana, his base offense level under the
sentencing guidelines was 38. See U.S. Sentencing Guidelines Manual
§ 2D1.1(c) (1995). Dukes received a sentence enhancement of four
levels for his role as an organizer or leader in the conspiracy. See
U.S.S.G. § 3B1.1(a). Finally, Dukes received an enhancement of two

                    4
levels for obstruction of justice because he suborned perjury and
intimidated Government witnesses. See U.S.S.G. § 3C1.1. Therefore,
his adjusted base offense level was 44. The district court determined
that Dukes' criminal history category was II. See U.S.S.G. § 4A1.2.
Therefore, applying the sentencing guidelines, the district court sen-
tenced Dukes to life imprisonment. See U.S.S.G. Ch.5, Pt.A (mandat-
ing a life sentence at offense level 44).

II.

Dukes challenges his conviction on the ground that he was denied
his Sixth Amendment right to counsel of choice when the district
court denied his counsel's November 14, 1994, motion to withdraw.
Additionally, he challenges his money laundering conviction on the
ground that the Government did not properly demonstrate a connec-
tion to interstate commerce. Dukes also claims that trial counsel was
ineffective in representing Dukes on count three of the indictment
(possession with intent to distribute). Dukes also challenges his sen-
tence. He claims that the district court improperly applied the obstruc-
tion of justice enhancement without making the requisite findings on
the elements of the underlying crime of subornation of perjury. Dukes
further contends that the district court miscalculated his criminal his-
tory category by considering one juvenile crime that should not have
been considered separately from the present offense.

We address each of these challenges to the convictions and sen-
tence in turn.

A.

Dukes first argues that "no compelling reason existed to deny . . .
his Sixth Amendment right to counsel of his choice," and that there-
fore, the district court erred when it denied Cornely's motion to with-
draw from continuing representation. (Appellant's Br. at 17.) We
disagree that Dukes' Sixth Amendment rights were violated.

The Sixth Amendment guarantees that "[i]n all criminal prosecu-
tions, the accused shall enjoy the right . . . to have the Assistance of
Counsel for his defence." U.S. Const. amend. VI. We have noted that

                     5
"[a] defendant's right to have a lawyer of his or her own choosing is
an essential element of the Sixth Amendment right to assistance of
counsel." United States v. Mullen, 32 F.3d 891, 895 (4th Cir. 1994).
The individual's right to have counsel of his choosing, however, is
not an absolute right. See id. Rather, the right is circumscribed by the
need for the orderly administration of justice. The exercise of the right
to counsel of choice may neither "obstruct orderly judicial procedure"
nor "deprive courts of the exercise of their inherent power to control
the administration of justice." United States v. Gallop, 838 F.2d 105,
108 (4th Cir. 1988).

The denial of a motion to substitute counsel is reviewed under an
abuse of discretion standard. See id. To determine whether the district
court abused its discretion we consider three factors: (1) the timeli-
ness of the motion, (2) the adequacy of the court's inquiry into the
defendant's complaint, and (3) whether a total breakdown in attor-
ney/client communication had developed such that it prevented the
attorney from putting forth an adequate defense. See Mullen, 32 F.3d
at 895. Based upon our review of the record, consideration of these
factors demonstrates that the district court did not abuse its discretion
when it denied Dukes' counsel's motion to withdraw.

1. Timeliness

Dukes' counsel made his motion to withdraw four days after
receipt of the Government's response alleging that counsel's inexperi-
ence in federal court contributed to his misunderstanding of applica-
ble law. When considering the timeliness of a motion for withdrawal,
however, the district court is entitled to consider not only its trial cal-
endar but also the "public interest in proceeding on schedule." United
States v. West, 877 F.2d 281, 286 (4th Cir. 1989).

The motion to withdraw was filed only ten days before jury selec-
tion was to begin in what was then-anticipated to be a multi-
defendant, complex drug conspiracy trial. Substitution of counsel at
that late date would likely have caused substantial delay in the pro-
ceedings. Such a delay not only would have altered the court's
docket, but it also would have affected Dukes' co-defendants. There-
fore, substitution of counsel at a time so close to scheduled jury selec-

                     6
tion would have significantly impeded the efficient administration of
justice.

2. Adequacy of District Court Inquiry

When either the defendant or his attorney raises a substantial com-
plaint about continuing representation, the district court must make a
thorough inquiry into the cause of the difficulties. See Mullen, 32 F.3d
at 896.

Here, the district court made a satisfactory inquiry into the cause
of the lawyer/client conflict. The hearing, discussing the difficulties
with the representation, lasted for forty-five minutes. During that
time, the district court thoroughly questioned Dukes, Cornely, and the
Assistant United States Attorney (AUSA) present for the hearing.
Dukes revealed that the sole reason for his dissatisfaction with
Cornely was the statement made in the Government's response assert-
ing that Cornely was not experienced in federal court. Dukes indi-
cated that he thought fellow lawyers would have insight into his
lawyer's reputation. On that basis, he gave credence to the Govern-
ment's statement regarding his lawyer's inexperience as an accurate
reflection of Cornely's reputation among other lawyers, and he
believed that Cornely had lied about his experience in federal court.
Therefore, Dukes began to distrust Cornely.

During the hearing, the AUSA clarified that the Government's
statement in its response was limited to the detention hearing context
and that the Government thought that Cornely had done a good job
representing Dukes in all other respects. The district court further
questioned Dukes regarding his satisfaction level with the representa-
tion up until the point that the response brief was filed. Dukes indi-
cated that the only reason for his dissatisfaction with Cornely was the
distrust he felt in response to the Government's statement. Until he
had received the Government's response to his motion, Dukes had
had no complaints about Cornely and thought he had been doing a
good job on his behalf.

In short, the district court took ample time to have a detailed con-
versation with Dukes and the attorneys regarding the problems with

                    7
the representation. The district court made an adequate inquiry into
the cause of Dukes' dissatisfaction with counsel.

3. Extent of the Breakdown in Communication

The final factor we consider in determining whether the district
court abused its discretion by denying a motion to substitute counsel
is whether there was a total breakdown in communication between
attorney and client such that it prevented the attorney from mounting
an adequate defense. See Mullen, 32 F.3d at 896.

Dukes and his attorney had a breakdown in communication that
lasted approximately eight days, from the date he reviewed the Gov-
ernment's response until the date of the hearing. At the hearing the
district court gave Dukes the option of reasserting the motion to with-
draw at a later date if he and his attorney could not settle their differ-
ences. Dukes never brought any continuing communication problems
to the attention of the district court.

An eight-day discontinuation of communication between lawyer
and client over the course of a five-month period of representation
does not create a substantial impediment to the attorney's ability to
put forth an adequate defense. Furthermore it is clear from the record
that Cornely and Dukes discussed important issues during the course
of the trial and that the defense mounted by Cornely led to Dukes'
acquittal on three of the counts with which he was charged. Thus, we
conclude that the eight-day interruption in communication did not
prevent an adequate defense.

4. Conclusion

Because we conclude that Dukes' counsel's motion to withdraw
was not timely, the district court made careful and thorough inquiry
into the reasons for Dukes' dissatisfaction with his counsel, and the
eight-day breakdown in communication did not inhibit counsel's abil-
ity to provide an adequate defense, the district court did not abuse its
discretion when it denied Cornely's motion to withdraw. Thus, there
was no violation of Dukes' Sixth Amendment right to counsel.

                     8
B.

Dukes next challenges his conviction under 18 U.S.C.A. § 1957
(West Supp. 1997). That section provides:

           (a) Whoever, in any of the circumstances set forth in sub-
          section (d), knowingly engages or attempts to engage in a
          monetary transaction in criminally derived property that is
          of a value greater than $10,000 and is derived from speci-
          fied unlawful activity, shall be punished . . .

          ....

          (d) The circumstances referred to in subsection (a) are --

           (1) that the offense . . . takes place in the United
          States or in the special maritime and territorial
          jurisdiction of the United States; or

           (2) that the offense . . . takes place outside the
          United States and such special jurisdiction, but the
          defendant is a United States person . . .

          ....

          (f) As used in this section --

           (1) the term "monetary transaction" means the
          deposit, withdrawal, transfer, or exchange, in or
          affecting interstate or foreign commerce, of funds
          . . . by, through, or to a financial institution . . . .

18 U.S.C.A. § 1957 (West Supp. 1997).

Dukes claims that his conviction cannot stand because the Govern-
ment did not put forth sufficient evidence that the transaction in ques-
tion substantially affected interstate commerce. He relies upon United
States v. Lopez, 115 S. Ct. 1624 (1995), as authority for this proposi-
tion.

                     9
Dukes' counsel misapprehends the reach of Lopez . Lopez contem-
plates the power of Congress to enact legislation under the Commerce
Clause, and does not address the sufficiency of the evidence in a par-
ticular case. See Lopez, 115 S. Ct. at 1626. Under the correct standard
for determining the sufficiency of the evidence, Dukes' assignment of
error lacks merit.

The elements of the crime under 18 U.S.C.A. § 1957 (West Supp.
1997) are: (1) the defendant knowingly, (2) engaged in a monetary
transaction, (3) involving criminally derived property valued at more
than $10,000. See United States v. Smith, 44 F.3d 1259, 1270 (4th Cir.
1995). Here, Dukes challenges the sufficiency of the evidence on the
second element because "monetary transaction" contemplates an
effect on interstate commerce. See 18 U.S.C.A. § 1957(f)(1).

In determining whether the evidence presented at trial was suffi-
cient to support a conviction, the jury's verdict must be upheld on
appeal if there was substantial evidence to support the verdict. See
Glasser v. United States, 315 U.S. 60, 80 (1942). In determining
whether the evidence presented was substantial, we view the evidence
in the light most favorable to the Government and inquire whether a
"reasonable finder of fact could accept as adequate and sufficient to
support a conclusion of a defendant's guilt beyond a reasonable
doubt." United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en
banc), cert. denied, 117 S. Ct. 1087 (1997).

There is substantial evidence to support the jury's finding that
Dukes engaged in a monetary transaction that affected interstate com-
merce. The Government's proof at trial was that Dukes used cash
derived from the sale of drugs to purchase a BMW M-3 automobile.
The act of purchasing an automobile undoubtably has the requisite
effect on interstate commerce to pass muster under 18 U.S.C.A.
§ 1957(f)(1) (West Supp. 1997). Therefore, a reasonable fact finder
could have found beyond a reasonable doubt that Dukes engaged in
a monetary transaction, the challenged element of the offense.
Accordingly, Dukes' money laundering conviction must stand.

C.

Additionally, Dukes claims that trial counsel was ineffective. Gen-
erally, claims of ineffective assistance of counsel can be raised only

                    10
during post-conviction relief. If, however, "`it conclusively appears in
the trial record itself that the defendant was not provided . . . effective
representation,'" then we may recognize ineffectiveness of counsel on
direct appeal. United States v. Fisher, 477 F.2d 300, 302 (4th Cir.
1973) (quoting United States v. Mandello, 426 F.2d 1021, 1023 (4th
Cir. 1970)).

Although Dukes' counsel was unsuccessful in winning an acquittal
on all of the counts with which Dukes was charged in the indictment,
the record does not conclusively demonstrate that counsel provided
ineffective assistance. Quite the contrary, counsel persuaded the jury
to acquit Dukes on three of seven charges. Clearly, a case in which
counsel appears on the face of the record to be competent, and in
which counsel successfully wins acquittal for his client on several
counts of the indictment, does not satisfy the standard recognized in
Fisher as ineffective assistance of counsel cognizable on direct
appeal. See 477 F.2d at 302. Therefore, Dukes' claim of ineffective
assistance of counsel is, at best, premature.

D.

Dukes next challenges his sentence. First, he asserts that the
enhancement for obstruction of justice was improperly applied. He
then asserts that the court miscalculated his criminal history category.
Finding no error in sentencing, we affirm.

1.

Dukes argues that the district court improperly applied the obstruc-
tion of justice enhancement during his sentencing. See U.S. Sentenc-
ing Guidelines Manual § 3C1.1 (1995). He contends that the district
court did not make sufficient factual findings in support of the
enhancement. We disagree.

The presentence report prepared by the United States Probation
Office and adopted by the district court contains three paragraphs
regarding the adjustment for obstruction of justice. Dukes asserts that
the district court made insufficient findings supporting the adoption
of ¶¶ 42, 43, and 44 of the presentence report.* Those paragraphs
_________________________________________________________________
*Dukes also challenges the sufficiency of the evidence presented to
support the district court's determination. We find that the testimony and

                     11
explain that an obstruction of justice enhancement is warranted
because Dukes sponsored perjured testimony in an effort to obtain
bond before trial, intimidated a witness before trial, and threatened a
witness causing him to file a false affidavit.

Specifically, ¶ 43 notes that witnesses testifying on his behalf pro-
vided false testimony regarding his ownership of a BMW and his
employment with the Longshoreman's Union in an effort to help him
procure bond. Dukes asserts that United States v. Dunnigan, 507 U.S.
87 (1993), requires that a sentencing court make specific findings on
the elements of subornation of perjury before it applies the obstruc-
tion of justice enhancement under § 3C1.1. Dunnigan applies only
when the defendant commits perjury during the course of his own
trial. See id. at 95 ("[I]f a defendant objects to a sentence enhance-
ment resulting from [his] trial testimony, a district court must review
the evidence and make independent findings necessary to establish a
willful impediment to, or obstruction of, justice, or an attempt to do
the same under the perjury definition we have set out."). Therefore,
Dunnigan is not controlling in Dukes' case, because his obstruction
of justice enhancement was not based upon his own testimony during
trial.

Additionally, Dukes' assertion is not well founded because the dis-
trict court specifically adopted the factual findings in the presentence
report over defense counsel's objection after hearing argument. See
United States v. Love, Nos. 95-5760 & 95-5825, 1998 WL 15819, at
*10 (4th Cir. Jan. 20, 1998) (allowing district court to adopt findings
in the presentence report). Paragraph 43 of the presentence report
notes that Dukes sponsored false testimony designed to mislead the
court during his detention hearing. The criminal offense of suborning
perjury is defined in 18 U.S.C.A. § 1622 (West Supp. 1997) and
states "[w]hoever procures another to commit any perjury is guilty of
subornation of perjury." A witness who testifies under oath or affir-
mation commits perjury when he "gives false testimony concerning
_________________________________________________________________
affidavits considered in conjunction with the presentence report provided
an adequate basis upon which the district court could find by a prepon-
derance of the evidence that the allegations contained in the presentence
report were true.

                    12
a material matter with the willful intent to provide false testimony,
rather than as a result of confusion, mistake, or faulty memory."
Dunnigan, 507 U.S. at 94. Paragraph 43 of the presentence report pro-
vides a factual basis for all of the required elements of subornation
of perjury. The paragraph states that Dukes sponsored willfully false
testimony about a material matter in a detention hearing, and that the
false testimony actually occurred under oath at the hearing.

Applying the same rationale, Dukes' assertion that the district court
did not make proper findings regarding ¶ 42 is equally groundless.

Even if the factual findings in the presentence report were insuffi-
cient to support an obstruction of justice enhancement on the specific
ground of subornation of perjury, see U.S.S.G. § 3C1.1, or the inci-
dent of witness intimidation listed in ¶ 42, there was a third adequate
ground supporting the district court's determination. Dukes never
objected to ¶ 44 of the presentence report which described an incident
in which Dukes, through physical intimidation, arranged for a witness
to file a false affidavit. When, as here, the obstruction of justice
enhancement is warranted on several alternative grounds, so long as
one of the grounds is proper, the enhancement stands. See United
States v. Ashers, 968 F.2d 411, 414-15 (4th Cir. 1992). Therefore,
even if the findings regarding Dukes' subornation of perjury during
his detention hearing or first incident of witness intimidation are
faulty, the obstruction of justice enhancement rests on the allegation
contained in ¶ 44. Because the obstruction of justice enhancement is
supported by an alternative, valid rationale, we affirm its application.

2.

Dukes additionally challenges his sentence on the ground that the
district court improperly calculated his criminal history category, see
U.S.S.G. § 4A1.1, by separately counting a juvenile offense that rep-
resented conduct that was actually part of the instant offense, see
U.S.S.G. § 4A1.2(a)(1) (excluding conduct that is part of the instant
offense from the definition of "prior sentence"). If this crime were
omitted from Dukes' criminal history, his criminal history category
would be I rather than II. See U.S.S.G. Ch.5 pt.A.

Because the district court properly determined that Dukes' offense
level is 44, under either criminal history category I or II the manda-

                    13
tory sentence is life imprisonment. A district court's sentencing error
is subject to harmless error analysis, and remand is not required if
"the error did not affect the district court's selection of the sentence
imposed." Williams v. United States, 503 U.S. 193, 203 (1992); see
also United States v. McCrary, 887 F.2d 485, 489 (4th Cir. 1989)
(noting that error in calculating criminal history category warrants
remand only when possible sentencing ranges are different).

Because the only possible sentence under criminal history catego-
ries I and II was identical, if the district court erred in its calculation
of the criminal history category, that error was harmless, and thus we
affirm Dukes' sentence.

III.

For the reasons stated above, we affirm Dukes' convictions and
sentence.

AFFIRMED

                     14
