                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 04-5062



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


DANIEL LEE THOMPSON,

                                            Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema, District
Judge. (CR-03-530)


Argued:   February 3, 2006                 Decided:   July 25, 2006


Before WILKINS, Chief Judge, and WILLIAMS and SHEDD, Circuit
Judges.


Affirmed by unpublished opinion. Judge Shedd wrote the opinion, in
which Chief Judge Wilkins and Judge Williams concurred.


ARGUED: Amy Lynn Tenney, JENNER & BLOCK, Washington, D.C., for
Appellant. Linda I. Marks, UNITED STATES DEPARTMENT OF JUSTICE,
Office of Consumer Litigation, Washington, D.C., for Appellee. ON
BRIEF: Julie M. Carpenter, JENNER & BLOCK, Washington, D.C., for
Appellant.   Paul J. McNulty, United States Attorney, Karen L.
Taylor, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




                               2
SHEDD, Circuit Judge:

      Daniel L. Thompson appeals his conviction and sentence for

violating the Controlled Substances Act (the “CSA”), 21 U.S.C.

§ 801 et seq.    We affirm.



                                    I.

      In the mid-1990s, Dr. Thompson was a physician licensed to

practice medicine by the State of Ohio and was authorized by the

Drug Enforcement Administration to prescribe controlled substances.

Dr.   Thompson   and   Vineet   Chhabra,   a    businessman,   founded   and

operated weight loss centers in Ohio.          Over a two-year period, Dr.

Thompson treated more than 3,000 patients suffering from obesity in

these centers and never refused to prescribe medication to them

based on diagnostic testing.

      After obtaining an opinion from their attorney that such a

practice would be lawful, Dr. Thompson and Chhabra created a

website offering medications controlled under the CSA for the

treatment of obesity. Rather than travel to Dr. Thompson’s weight-

loss centers, individuals would submit information relating to

their medical history and current ailment over the internet. Based

on the information provided over the internet, Dr. Thompson would

prescribe controlled substances to these patients.             For the next

several months, Dr. Thompson earned more than $50,000 per month

from his internet practice.         Chhabra also established similar


                                     3
relationships      with     other    physicians     and   pharmacists        to   offer

controlled substances over the internet.

       In the late 1990s, Ohio promulgated regulations requiring

physicians to perform physical examinations before prescribing

controlled substances to Ohio residents for the treatment of

obesity.     In 2000, Dr. Thompson pleaded guilty in Ohio state court

to violating the Ohio regulations.               As part of his plea agreement,

Dr. Thompson surrendered his medical license and DEA registration.

After Dr. Thompson stopped prescribing medications, his brother,

Dr. William Thompson, a physician licensed in Missouri, replaced

Dr.    Thompson    as   the     prescribing      physician      for   the     internet

practice.

       In 2003, the government indicted Chhabra, Dr. Thompson, his

brother,     and    several       other     physicians    and    pharmacists        for

conspiring to violate the CSA by distributing and dispensing

controlled substances other than for a legitimate medical purpose

and   not   in    the   usual     course    of   professional       practice.       The

indictment alleged that the defendants failed to check the accuracy

of    the   information     the     patients     provided    over     the    internet,

including their identities, ages, and qualifying medical condition.

It    further     alleged     that    the    defendants     provided        controlled

substances even when no physician reviewed the information provided

by the patients.




                                            4
      Before his arraignment, Dr. Thompson provided a financial

affidavit to the district court “in case bail becomes an issue.”

J.A. 213.   In his cover letter, Dr. Thompson informed the court:

      I have no attorney and intend on defending myself. The
      attorney listed, David Winters, will not be defending me
      because of financial problems with regards to another
      defendant. . . . Chhabra had been paying Mr. Winters
      legal fees and that is no longer the case. I believe Mr.
      Winters has already notified the prosecution of these
      events and they know that I will be defending this case
      pro se.

Id.   Dr. Thompson’s financial affidavit revealed that he was then

unemployed, had less than $500 in assets, received only $1,000 each

month from a trust account, and had more than $1.3 million in debt.

      By the time of the arraignment in December 2003, the district

court appointed counsel for two of Dr. Thompson’s nonphysician

codefendants.    The district court concluded, however, that Dr.

Thompson and his brother did not qualify for court-appointed

counsel.    Even though Dr. Thompson’s financial affidavit showed

that he had virtually no assets, the district court recommended

that Dr. Thompson “liquidat[e] whatever assets you have to find

counsel for yourself.”   J.A. 190.   The district court also warned

Dr. Thompson that:

      It’s a risky business acting as your own attorney, but
      the law gives you the right to do so. If you are your
      own attorney, you should understand that as you speak,
      you may be making admissions or statements that the
      prosecution can use against you.        You’re going to
      definitely have a disadvantage in being able to defend
      yourself, but it is your right under the Faretta decision
      and under the Sixth Amendment. And while I’ll permit you
      to be your own attorney, you will have to follow all the

                                 5
      rules and regulations of the Court. We’ll give you very
      little extra slack, a little bit, but you understand if
      you proceed at your own risk, you are a doctor, so you’re
      well educated, so I have no doubt that you can adequately
      represent yourself, but there’s nothing like having a
      lawyer.

J.A. 190-91.      Dr. Thompson responded that he was “comfortable”

representing himself.       J.A. 191.         Dr. Thompson entered a plea of

not   guilty   and    requested   a    jury    trial.    The   district      court

explained to Dr. Thompson his rights under the Speedy Trial Act.

Dr. Thompson stated that he understood his rights, and he expressly

waived them.

      For the next several months, Dr. Thompson represented himself.

Because Dr. Thompson was living in South Dakota and could not

afford to travel, he missed some of the pretrial hearings.                    Dr.

Thompson   did,      however,   file   substantive      motions   to   dismiss.

Although these motions were filed after the applicable deadline,

the district court considered and denied them on the merits.

      In June 2004, Dr. Thompson moved for “indigency status for all

remaining parts of this criminal trial.”             J.A. 321.    He explained

that he “did not request indigency status at [the arraignment]

because I was not aware of the personal financial hardship this

trial would place on my limited financial resources.”                  Id.    Dr.

Thompson was concerned that the district court would misinterpret

his absence from pretrial hearings as indifference or contempt for

the court.     Dr. Thompson did not specify the exact relief he was

seeking.

                                        6
      The district court deemed Dr. Thompson’s motion for indigency

status as a request for appointed counsel.                  The district court

reexamined the financial affidavit that Dr. Thompson submitted

before the arraignment and determined that Dr. Thompson qualified

for court-appointed counsel. The district court promptly appointed

counsel for Dr. Thompson.         During the brief period in which Dr.

Thompson was represented, his appointed counsel obtained a draft

plea agreement and an estimated guideline range calculation for Dr.

Thompson from the government.                That estimate showed that Dr.

Thompson’s guideline range would be 46 to 57 months’ imprisonment.

His appointed counsel warned Dr. Thompson that he potentially faced

a much longer term of imprisonment if he refused to plead guilty

and was found guilty at trial.

      Within fifteen days of having counsel appointed, Dr. Thompson

moved to be restored to pro se status.           Dr. Thompson explained that

he did not request a court-appointed counsel at his arraignment,

because “I wanted to defend myself,” and that his recent motion for

indigency status was not meant as a request for counsel.                   J.A. 355.

Dr. Thompson insisted that the counsel appointed to represent him

was   more   of   a   hindrance   than   a    help    and   “has    made    me   feel

compassion for those indigent defendants incapable of attempting a

pro se defense.”      Id.   Dr. Thompson further emphasized that he had

“never requested court appointed counsel,” that he had always

“intended    on   being     allowed   the     right    to   cross    examine      the


                                         7
prosecution’s witnesses as well as to give my own opening and

closing   statements,”    and   that        “I   am   certain    that   I   have   a

constitutional right to defend myself.”               J.A. 356.      Dr. Thompson

requested that the district court “remove my Court appointed

attorney from this trial and allow me to defend myself as an

indigent Pro Se defendant.”       J.A. 357.

     In response, the district court informed Dr. Thompson that he

could not receive any funding to hire expert witnesses, to travel

to hearings, or to pay for other defense expenses if he returned to

pro se status.    The court explained that “[a]ppointing counsel is

the only way that the Court can assist the defendant in defraying

the costs of his legal defense.”             J.A. 360.      The district court

delayed ruling on Dr. Thompson’s motion to return to pro se status

to give him an opportunity to consider the ramifications to his

defense of representing himself.             The district court ordered Dr.

Thompson to inform the court within five days if he wanted to keep

his court-appointed counsel or if he instead wanted to resume his

defense pro se.

     About ten days later, Dr. Thompson’s court-appointed counsel

moved to withdraw as counsel.          On the same day, the district court

granted Dr. Thompson’s motion to be restored to pro se status,

noting that Dr. Thompson, pursuant to the court’s prior order, had

“informed the Court that he wishes to have his court-appointed

counsel   withdrawn”     and    that     Dr.     Thompson       “understands   the


                                        8
implications of returning to his pro se status.”                J.A. 362.      The

district court also granted the court-appointed counsel leave to

withdraw as counsel.        Dr. Thompson did not object to these orders.

      After several of Dr. Thompson’s codefendants pleaded guilty,

the government filed a superseding indictment. Shortly thereafter,

Dr. Thompson filed a motion to recuse District Court Judge Brinkema

from presiding over the impending trial.               Dr. Thompson alleged

several different bases in support of his claim that Judge Brinkema

was biased against him.          For instance, he claimed that Judge

Brinkema    was   biased    against    physicians     because    she   appointed

counsel for nonphysician codefendants but denied counsel for him

and   his   physician      brother    even   though   their     net    worth   was

substantially less than the nonphysician codefendants.                  Although

Dr. Thompson claimed this showed Judge Brinkema’s bias, he admitted

that he had “never asked for” counsel and that he did not like that

the counsel Judge Brinkema eventually appointed him was put “in

charge of my entire defense.”          J.A. 429-30.1

      Shortly before trial was scheduled to commence, the government

entered into a plea agreement, pursuant to Fed. R. Crim. P.

11(c)(1)(C), with codefendant Chhabra, who the district court

considered to be the primary leader of the conspiracy. Pursuant to

this agreement, Chhabra agreed to plead guilty to only Count 1 of


      1
      Although the district court docket does not reflect that the
district court ruled on this motion, Dr. Thompson does not argue on
appeal that Judge Brinkema was biased against him.

                                        9
the Superseding Indictment and to receive a 33-month term of

imprisonment.         The district court accepted Chhabra’s binding plea

agreement.

       After   the     remaining     defendants   pleaded      guilty,    only    Dr.

Thompson, his brother, and two other defendants proceeded to trial.

Both Dr. Thompson and his brother appeared pro se.                The government

attempted to prove six counts against Dr. Thompson.                        Count 1

alleged that Dr. Thompson knowingly and intentionally conspired

with others to distribute and dispense controlled substances other

than for a legitimate medical purpose and not in the usual course

of professional practice.           The five other counts alleged that Dr.

Thompson knowingly and intentionally illegally distributed and

dispensed controlled substances on five particular occasions.

       Dr. Thompson was allowed to give his opening statement.                    He

told   the     jury    that    he   was   representing    himself       because    he

“absolutely hate[s] attorneys.”            J.A. 497.     Dr. Thompson was also

allowed to cross examine all of the witnesses who testified,

including his brother, who was qualified as an expert witness in

the field of internal medicine.

       The jury found Dr. Thompson guilty of the conspiracy count and

two counts of illegal distribution, but acquitted him of the

remaining three illegal distribution counts. The jury acquitted or

deadlocked      on     all    the   charges    against   the    three    remaining

defendants.


                                          10
      Dr.   Thompson    moved   for    a   new   trial   on    several   grounds,

including that a new trial would give him the opportunity to have

a   court-appointed      attorney     from   the   onset      to   “discuss   plea

agreement options with the government that would perhaps be much

more agreeable.”       J.A. 2094.     Dr. Thompson insisted, however, that

he “did not violate the CSA.”              J.A. 2123.      The district court

denied this motion.

      The presentence report (“PSR”) calculated Dr. Thompson’s total

offense level at 25 and placed him in criminal history category I,

giving him a guideline range of 57 to 71 months.                    The district

court, however, reduced the total offense level to 21 by lowering

the drug quantity attributable to Dr. Thompson and by giving him

credit for acceptance of responsibility. These rulings resulted in

an adjusted guideline range of 37 to 46 months’ imprisonment.                  The

district court sentenced Dr. Thompson to 37 months’ imprisonment,

the minimum sentence under this guideline range, noting that this

sentence “is more than sufficient, and it is also proper and

appropriate in light of the sentences of the other defendants in

this case.”    J.A. 2204.




                                        11
                                          II.

       Dr. Thompson argues that the district court deprived him of

his Sixth Amendment right to be represented by counsel.                              We

disagree.2

        The Sixth Amendment to the United States Constitution provides

that “[i]n all criminal prosecutions, the accused shall enjoy the

right to . . . have the Assistance of Counsel for his defence.”

This right mandates that “counsel be provided for a defendant who

cannot afford to retain private representation in any case in which

he will be incarcerated if convicted.” United States v. Singleton,

107 F.3d 1091, 1095 (4th Cir. 1997).                 Although courts must protect

a defendant’s right to counsel, Johnson v. Zerbst,                     304 U.S. 458,

465 (1938), courts must also take care not to force counsel upon a

defendant because the Sixth Amendment also gives a defendant the

right to represent himself, Faretta v. California, 422 U.S. 806,

807 (1975). “[T]he right to self-representation . . . derives from

the Sixth Amendment principle wherein the defendant has the right

to decide the type of defense he will mount.”                     United States v.

Gonzalez-Lopez, 399 F.3d 924, 934-35 (8th Cir. 2005), aff’d,

U.S.             , 2006 WL 1725573 (2006).           The defendant can waive the

right       to    counsel   if   his   waiver   is    knowing,    intelligent,       and

voluntary.          Zerbst, 304 U.S. at 468; Singleton, 107 F.3d at 1095.



        2
      Dr. Thompson raises other assignments                      of   error,   but    we
conclude that they also lack merit.

                                           12
The right to counsel and the right to self-representation are

mutually exclusive, and therefore “the assertion of one constitutes

a de facto waiver of the other.”            Singleton, 107 F.3d at 1096.

        Determining whether a defendant sufficiently waived his right

to counsel is a question of law that we review de novo.                    United

States    v.    Owen,   407   F.3d   222,   225   (4th   Cir.    2005).      “The

determination of whether there has been an intelligent waiver of

the right to counsel must depend, in each case, upon the particular

facts    and    circumstances   surrounding       that   case,   including    the

background, experience, and conduct of the accused.”               Zerbst, 304

U.S. at 464. In deciding whether the defendant’s waiver of counsel

was sufficient, we examine the entire record.             Singleton, 107 F.3d

at 1097; Townes v. United States, 371 F.2d 930, 934 (4th Cir.

1966).         While it is incumbent upon the trial court to determine

that a defendant's waiver of his right to counsel is knowing and

intelligent, no particular form of colloquy is required.                  Townes,

371 F.2d at 934.        The court must make the defendant aware of the

“dangers and disadvantages of self-representation,” Faretta, 422

U.S. at 835, so that the defendant “knows what he is doing and his

choice is made with eyes open.”             Adams v. United States ex rel.

McCann, 317 U.S. 269, 279 (1942).             “The defendant must be made

aware that he will be on his own in a complex area where experience

and professional training are greatly to be desired.”                     United

States v. King, 582 F.2d 888, 890 (4th Cir. 1978).


                                       13
     Dr. Thompson argues that the district court erred by refusing

to offer him counsel before his arraignment and by giving him no

choice except to represent himself.       We agree that the district

court erred by deciding at the arraignment that Dr. Thompson did

not qualify financially for appointed counsel.3            There is no

dispute that Dr. Thompson qualified financially to be appointed

counsel at every stage of the proceeding.4

     While we agree that the district court erred, that does not

end our inquiry because we are required to review the entire record

to determine whether a defendant waived his right to counsel.       See

Singleton, 107 F.3d at 1097.       Under the unique circumstances of

this case, we conclude that Dr. Thompson knowingly, intelligently,

and voluntarily waived his right to counsel.

     When Dr. Thompson provided a financial affidavit to the

district court before his arraignment, he explained in his cover

letter that it was for purposes of setting bail rather than for

qualifying   for   appointed   counsel.   Dr.   Thompson   specifically

informed the district court in his cover letter that he “intend[ed]

on defending myself.”    J.A. 213.


     3
      We do not decide that an arraignment is a “critical stage” at
which the right to counsel applies.     See Owen, 407 F.3d at 225
(assuming, without deciding, that an arraignment is a “critical
stage”).   We decide only that the district court erred in its
initial factual determination that Dr. Thompson did not qualify
financially to be appointed counsel.
     4
      The government has not produced any evidence suggesting that
Dr. Thompson’s financial affidavit was fraudulent or incorrect.

                                   14
       From the transcript of the arraignment, it is clear that the

district court understood, based on Dr. Thompson’s letter, that Dr.

Thompson    wanted    to    represent    himself.            The    district   court

recognized in the colloquy that Dr. Thompson was highly educated

and could adequately represent himself, but it thoroughly warned

Dr. Thompson that he would be at a disadvantage if he chose to

represent himself.         Despite these warnings, Dr. Thompson stated

that he was “comfortable” representing himself.                    J.A. 191.

       Subsequent    events    confirm       that    Dr.     Thompson    knowingly,

intelligently, and voluntarily waived his right to counsel.                       As

trial    drew   closer,     Dr.   Thompson      moved      for     indigent    status

apparently in an effort to obtain travel and defense expenses. The

district   court     misinterpreted      this       motion    as    a   request   for

appointed counsel.         After reexamining Dr. Thompson’s financial

affidavit and determining that he qualified, the district court

appointed counsel for Dr. Thompson.             Almost immediately, however,

Dr. Thompson requested that his counsel be removed not only because

Dr. Thompson felt the counsel was not helpful but also because he

“never requested court appointed counsel” and wanted to “defend

myself.”    J.A. 356-57.      Dr. Thompson stated unequivocally:               “I am

certain that I have a constitutional right to defend myself.” J.A.

356.    In a subsequent filing, Dr. Thompson further explained that

he was opposed to having counsel appointed because he did not want




                                        15
an attorney placed “in charge of my entire defense.”           J.A. 429-

430.5

        From our review of the entire record, we conclude that Dr.

Thompson validly invoked his Sixth Amendment right to represent

himself from the beginning of this case.          Although the district

court erred by not initially offering him counsel, the district

court reasonably and correctly believed, based on Dr. Thompson’s

pre-arraignment letter and his comments at the arraignment, that

Dr. Thompson intended to represent himself.       The record as a whole

verifies that had the district court offered Dr. Thompson appointed

counsel at the arraignment, he would have declined such an offer

because he insisted throughout the proceeding that he be allowed to

represent himself and control his own defense.            Dr. Thompson’s

post-arraignment    statements   confirm   that   the   district   court’s

understanding at the time of the arraignment – that Dr. Thompson




        5
      After indicating at the arraignment that he would represent
himself, Dr. Thompson requested an advisory counsel to assist him.
That request was denied. In his motion to return to pro se status
after the district court appointed him counsel, Dr. Thompson
insisted that “I specifically stated I planned on defending myself
Pro Se during my arraignment and that the Court could provide me
with co-counsel if [it] felt it would make the trial go smoother.”
J.A. 356. These statements confirm that Dr. Thompson intended to
represent himself from the beginning of the proceedings against him
and that he wanted, at most, an advisory counsel who could advise
him but who would not be in charge of his defense. Refusal by a
district court to appoint advisory counsel is not a cognizable
Sixth Amendment violation. Singleton, 107 F.3d at 1100-01.

                                   16
wanted to represent himself – was entirely correct.6   Dr. Thompson

never deviated from asserting his right to represent himself and to

control his defense until after the jury found him guilty. By

invoking his Sixth Amendment right to represent himself, Dr.

Thompson knowingly, intelligently, and voluntarily waived his right

to counsel.   See Singleton, 107 F.3d at 1096.



                               III.

     We affirm the judgment of the district court.

                                                          AFFIRMED




     6
      Dr. Thompson argues that we cannot consider his post-
arraignment statements in determining whether he validly waived his
right to counsel. He relies on our statement in Singleton that we
review the validity of a waiver based only on what the trial court
knew “at the time” of the waiver. Id. at 1097. The context of
this statement in Singleton, however, reveals that Dr. Thompson’s
reliance is misplaced. Singleton does not address or limit the
consideration of post-waiver information.       Instead, Singleton
stands for the proposition that reviewing courts are not limited to
considering what the district court ascertained only “at the time”
of the waiver colloquy but can also consider “the record as a
whole.” Id.   We need not decide whether Singleton allows us to
consider Dr. Thompson’s post-arraignment statements to determine in
the first instance whether Dr. Thompson validly waived his right to
counsel.   We base our determination that Dr. Thompson validly
waived his right to counsel on his pre-arraignment letter and his
comments during the arraignment. Dr. Thompson’s post-arraignment
statements merely confirm his waiver.      Consideration of these
subsequent confirming statements is not inconsistent with
Singleton.




                                17
