                  UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT

                          _____________________

                               No. 92-7585
                          _____________________

                        UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

                                  versus

                            NORMAN L. HAYMER,

                                                     Defendant-Appellant.

_________________________________________________________________

      Appeals from the United States District Court for the
                 Southern District of Mississippi

_________________________________________________________________
                         (June 30, 1993)

Before POLITZ, Chief Judge, REAVLEY and BARKSDALE, Circuit Judges.

BARKSDALE, Circuit Judge:


     Norman L. Haymer appeals his sentence, contending that his

Sixth Amendment right to counsel was violated by the inclusion of

an uncounseled misdemeanor conviction in calculating his Sentencing

Guidelines criminal history score.          We AFFIRM.

                                       I.

     Haymer   pleaded    guilty   to    possession   with   the   intent   to

distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1). In

the presentence investigation report (PSR), the probation officer

recommended a guideline range of 51 to 63 months imprisonment,

based upon an offense level of 22 and a criminal history category
of    III.    The     criminal     history   score   included   2   points     for

committing the instant offense while on probation, 1 point for a

1987 conviction, and 1 point for a 1991 shoplifting conviction.

The latter is the subject of this appeal.                The PSR described the

circumstances of that conviction as follows:

             Records of the Jackson Police Department indicate
             Haymer was arrested on May 22, 1991 and charged
             with shoplifting .... The defendant entered a plea
             of guilty to the charge in Jackson Municipal Court
             and was ordered to pay a fine of $300 plus court
             costs. On November 13, 1991, Haymer was arrested
             by the Jackson Police Department and charged with
             contempt of court for failing to pay the imposed
             fine and court costs. Disposition of the contempt
             charge has not been received as of this writing,
             but according to the defendant, he opted to perform
             18 days of work at the Hinds County Penal Farm in
             lieu of paying the fine and court costs.

       Although he did not file written objections to the PSR, Haymer

objected, at the sentencing hearing, to the inclusion of the

shoplifting conviction in his criminal history score, on the ground

that he was not represented by counsel and had served 18 to 19 days

in jail.      Exclusion of that conviction would have lowered his

criminal history score, resulting in a guideline range of 46 to 57,

instead of 51 to 63, months.

       After hearing testimony, the district court found that the

original sentence for shoplifting consisted only of a fine, and

that Haymer's incarceration resulted either from contempt of court

for    failure   to    pay   the    fine,    or   from   Haymer's   decision    to

substitute incarceration in lieu of paying it.              It also found that

Haymer, who was an attorney in Louisiana from 1976-1986, but was

disbarred in 1990, acted as his own counsel on the shoplifting


                                       - 2 -
charge. Haymer was sentenced to 51 months imprisonment and a five-

year term of supervised release and ordered to pay a $50 special

assessment and $1,000 fine.

                                    II.

     Haymer's sole contention is that his sentence was imposed in

violation of law, or as a result of an incorrect application of the

Guidelines, because the uncounseled misdemeanor conviction was

included in the calculation of his criminal history score.

     We "will uphold a sentence unless it was imposed in violation

of law; imposed as a result of an incorrect application of the

sentencing guidelines; or outside the range of the applicable

sentencing guideline and is unreasonable."                  United States v.

Howard, 991 F.2d 195, 199 (5th Cir. 1993).                 "[W]hether a prior

conviction is covered under the sentencing guidelines is ...

reviewed de novo, while factual matters concerning the prior

conviction are reviewed for clear error."            Id.

     In Scott v. Illinois, 440 U.S. 367 (1979), the Supreme Court

held that an indigent criminal defendant may not "be sentenced to

a term of imprisonment" unless the government has afforded him the

right to assistance of counsel guaranteed by the Sixth Amendment.

Id. at 373, 374 (emphasis added).          Absent a valid waiver of this

right, "[i]f an uncounseled defendant is sentenced to prison, the

conviction itself is unconstitutional."            United States v. Eckford,

910 F.2d 216, 218 (5th Cir. 1990) (emphasis added); United States

v. Follin, 979 F.2d 369, 376 (5th Cir. 1992).                 But, the Sixth

Amendment   does   not   require   the    States    to   provide   counsel   in


                                   - 3 -
criminal      cases   in       which    the   defendant    is   not   sentenced     to

imprisonment.          Id.             Accordingly,    uncounseled        misdemeanor

convictions for which no term of imprisonment is imposed are

constitutionally valid, may be introduced into evidence at the

punishment phase of a trial for a subsequent offense, and may be

used to calculate a defendant's Guidelines criminal history score.

Eckford, 910 F.2d at 220-21; Wilson v. Estelle, 625 F.2d 1158, 1159

(5th Cir. Unit A 1980), cert. denied, 451 U.S. 912 (1981).

     Haymer seeks shelter under Baldasar v. Illinois, 446 U.S. 222

(1980); but our court has repeatedly interpreted that case only to

prohibit the use of a prior uncounseled misdemeanor conviction

"under   an    enhanced        penalty     statute    to   convert    a   subsequent

misdemeanor into a felony with a prison term."                  Wilson v. Estelle,

625 F.2d at 1159 n.1; see also Eckford, 910 F.2d at 220.                    Likewise,

we have repeatedly held that Baldasar does not prohibit the use of

an uncounseled misdemeanor conviction to determine a criminal

history category for a crime that is itself a felony.                     Follin, 979

F.2d at 376 & n.8.         Needless to say, possession with the intent to

distribute crack cocaine is a felony; therefore, Baldasar is

inapplicable.

     Consistent with these cases, the Guidelines provide that

"uncounseled     misdemeanor           sentences   where   imprisonment      was   not

imposed" are to be included in calculating the criminal history

score.     U.S.S.G.        §    4A1.2,     comment.   (backg'd)       (1991).      The

commentary to that section provides that "[a] sentence which

specifies a fine or other non-incarcerative disposition as an


                                           - 4 -
alternative to a term of imprisonment ... is treated as a non-

imprisonment      sentence."          U.S.S.G.     §    4A1.2,    comment.    (n.4).

Application note 6 to § 4A1.2 states that "sentences resulting from

convictions that a defendant shows to have been previously ruled

constitutionally invalid are not to be counted" in computing a

defendant's criminal history score.                U.S.S.G. § 4A1.2, comment.

(n.6) (1991).      Application note 6 "allows a district court, in its

discretion, to inquire into the validity of prior convictions at

sentencing hearings."          United States v. Canales, 960 F.2d 1311,

1315 (5th Cir. 1992).

     Haymer presented no evidence that his shoplifting conviction

had been previously ruled constitutionally invalid, but instead

sought to collaterally attack it at sentencing.                         The district

court,    in    the    exercise    of    its     discretion,      entertained     the

challenge,      but    found   that     Haymer's       sentence   for    shoplifting

consisted only of a fine, and that his incarceration resulted

either from contempt of court for failure to pay the fine, or from

Haymer's decision to substitute incarceration in lieu of paying it.

Based    on    those   findings,      the   district      court    held    that   the

conviction was not constitutionally invalid.                      Our task is to

determine whether the district court's factual findings, regarding

the circumstances of Haymer's shoplifting conviction and subsequent

incarceration, are clearly erroneous.

     In his testimony at the sentencing hearing, Haymer described

the circumstances of his shoplifting conviction as follows: I was
                                                            arres
                                                            t e d
                                                            and I

                                        - 5 -
        made
        bond.
        I
        went
        back
        t   o
        court
        . At
        t h e
        time
        I was
        worki
        n g .
        S   o
        they
        . . .
        accus
        ed me
        o   f
        steal
        ing a
        pack
        o   f
        cigar
        ettes
        . So
        I
        told
        t h e
        judge
        I
        didn'
        t. I
        w a s
        i   n
        h i s
        chamb
        e r .
        I
        wasn'
        t in
        court
        ....
        I
        thoug
        ht it
        would
        be a
        l o w
        fine
        o   r
        whate

- 6 -
        ver.
        B u t
        h   e
        told
        m   e
        he'd
        accep
        t the
        guilt
        y
        plea
        a n d
        give
        me a
        fine.
        I
        thoug
        h   t
        t h e
        fine
        would
        b   e
        proba
        b l y
        $50,
        y o u
        know,
        for a
        pack
        o   f
        cigar
        ettes
        ; and
        h   e
        fined
        m   e
        300-
        and-
        somet
        hing
        dolla
        r s .
        I
        didn'
        t
        have
        t h e
        money
        , so
        event
        ually
        they

- 7 -
                                                                    sent
                                                                    me to
                                                                    jail
                                                                    t   o
                                                                    work
                                                                    i   t
                                                                    off.

                 ....

               I wasn't advised that I had a right to a
          lawyer at the time or I would have chose to have a
          lawyer, if I knew that that particular thing could
          come back and haunt me at a later date. Or if I
          could have got some jail time. I didn't know I was
          -- you know, because he told me it was going to be
          a fine.

Defense counsel, relying on Baldasar        and Scott, argued that,

because Haymer had served 18 or 19 days in jail "as a result of the

conviction    and   his   failure   to   pay,"   the   conviction    was

unconstitutional, and could not be used to calculate the criminal

history score.

     The court then questioned the probation officer, who testified

as follows:

          Mr. Haymer was charged with shoplifting. He was
          convicted and fined $300.    There was no term of
          imprisonment imposed, no term suspended, nothing.
          He failed to pay the fine.     They issued a bench
          warrant for contempt for failing to pay the fine.
          According to Mr. Haymer, he opted to do or perform
          18 days of work at the penal farm instead of paying
          the fine. In our opinion it appears to us that it
          was not a mandatory term of imprisonment imposed as
          a result of the conviction. It was an option taken
          on his part. And I will point out to Your Honor
          that I believe Mr. Haymer is -- he is an attorney.
          We're not dealing with someone who is ignorant of
          the law or his rights.

               THE COURT: The prison term came -- the time
          that was set forth in the sentence came as a result
          of a contempt --

                 [PROBATION OFFICER]:    That's correct.

                                - 8 -
                THE COURT:    -- rather than the crime itself.

                [PROBATION OFFICER]:      That's correct.

Defense counsel responded that Haymer's incarceration was "a direct

result of the crime itself.      What Mr. Haymer did was work off this

fine."

     The district court then asked the probation officer if she had

any documentation showing that the jail time resulted from the

contempt charge, rather than the initial sentence for shoplifting.

She responded that she did not have any documentation as to the

contempt charge, because the records of the Jackson municipal court

were "awful", but that "[t]he disposition as to the contempt and

the 18 days or 19 days on the penal farm came straight from Mr.

Haymer."   She testified that she did have documentation as to the

original   sentence   imposed,    which   was   a   fine   only.   (That

documentation was not introduced into evidence at the hearing, and

is not part of the record.)

     Haymer then testified:

           [A]t the time I was sentenced I was ordered to pay
           $342. If I had told the judge at that time I did
           not have $342 to pay, he would have sentenced me to
           jail.   I told him I would see if I could raise
           $342, which he gave me about a week or two weeks or
           whatever. I couldn't come up with the money. I
           went to the penal farm because I couldn't pay the
           fine of $342, not because I was in contempt but
           because I didn't have the fine money to pay. Even
           after I was arrested, they asked if I could pay 50
           or 100, $200, they would let me out, you know,
           until I could get the balance.      I told them I
           didn't have that money. Therefore I -- they sent
           me to -- and it wasn't voluntary. It was mandatory
           that I go and work it off since I couldn't pay it.




                                  - 9 -
      Based on this conflicting testimony, the district court found:

            [T]he original sentence was one that required him
            to pay a fine and ... his subsequent incarceration
            came as a result of either his failure to pay the
            fine and therefore his arrest for contempt or some
            other situation wherein he decided to substitute
            time in lieu of paying the fine that was imposed
            upon him.

      The   district   court    did     not    clearly    err       in   finding    that

Haymer's sentence for shoplifting consisted only of a fine.                        That

finding was based on the uncontradicted testimony of the probation

officer, and    Haymer    does    not    challenge       it.        Instead,      Haymer

contends that, because he was incarcerated for failure to pay the

fine to which he was sentenced for shoplifting, his conviction for

shoplifting    is   constitutionally          invalid.         We   disagree.       The

district court found that Haymer's incarceration did not result

from his shoplifting conviction, but from a contempt charge for

failure to pay the fine, or because he opted to serve time in lieu

of paying it.       The evidence at the sentencing hearing amply

supports that finding; it is not clearly erroneous.

      Because Haymer was not "sentenced to a term of imprisonment"

for    shoplifting,       his     uncounseled            conviction          is      not

unconstitutional.        Scott,   440     U.S.    at     374    (emphasis      added).

Accordingly, the conviction was properly included in calculating

his criminal history score.        Haymer was subsequently incarcerated

only because he failed to pay the fine.            Regardless of whether the

incarceration was based on a contempt charge or his choice to serve

time in lieu of the fine, it does not invalidate his prior

shoplifting conviction, for which the only sentence was a fine. We


                                      - 10 -
stress that the constitutionality of any subsequent contempt charge

resulting in incarceration is not at issue, because it was not used

to calculate Haymer's criminal history score.*

                                   III.

        For the foregoing reasons, the sentence is

                                  AFFIRMED.

POLITZ, Chief Judge, dissenting:



        The majority suggests that Haymer went to a penal farm of his

own accord or for contempt as a result of his failure to pay a

fine. Apart from the speculation of a probation officer, I find no

evidence in the record of either and, in any event, perceive no

controlling significance in those conclusions, absent evidence that

the     punishment   ultimately   assessed    was   independent   of   the

conviction we now review.     Accordingly, I respectfully dissent.

        The sixth amendment provides: "In all criminal prosecutions,

the accused shall have the right . . . to have the Assistance of

Counsel for his defence."    That is an important right.     Indeed, the

Supreme Court has long recognized that it is a fundamental aspect

of a fair trial, the denial of which strongly implicates the

reliability of the fact-finding process.**          This constitutional



*
     It is unnecessary for us to address the district court's
alternative finding that, because Haymer was an attorney who had
practiced law for ten years, he "knew full well that he had the
right to counsel" and "represented himself".

**
     Smith v. Collins, 964 F.2d 483 (5th Cir. 1992).

                                  - 11 -
imperative applies to the states through the due process clause of

the fourteenth amendment.***

          The majority prudently pretermits review of the district

court's conclusion that Haymer waived counsel and represented

himself in his 1991 prosecution.        There is no evidence of either.

Likewise, there is no evidence that Haymer was sent to the Hinds

County Penal Farm for conduct discrete from his theft of a pack of

cigarettes.        The only thing the record shows is that Haymer

admitted stealing a pack of cigarettes from a grocery store, pled

guilty, was unable to pay a fine and, according to the completely

inadequate state court records, somehow found his way to the county

penal farm for 18 or 19 days.

          The question before us is not whether a valid uncounseled

misdemeanor conviction is being used for a constitutionally invalid

purpose.        Our   prior   interpretations   of   the   Supreme   Court's

plurality opinion in Baldasar v. Illinois**** limit that challenge

to cases in which a subsequent conviction is being enhanced from a

misdemeanor to a felony.           Rather, the question before us is

whether, in light of the punishment imposed, the prior conviction

is itself valid.

          In Argersinger v. Hamlin***** the Supreme Court rejected the

argument that petty offenses and misdemeanors are too insignificant

to warrant appointment of counsel for indigents.            Distinguishing

the right to appointed counsel from the right to trial by jury, the

***
      Gideon v. Wainwright, 372 U.S. 335 (1963).
****
       446 U.S. 222 (1980).
*****
        407 U.S. 25 (1972).
Court established a bright-line rule based on the punishment

ultimately imposed, concluding "that incarceration was so severe a

sanction that it should not be imposed unless an indigent defendant

had been offered appointed counsel."******

           Any doubt about whether the Court was concerned with the

potential or actual punishment imposed was put to rest in Scott

v.Illinois.******* There the Court held that an indigent misdemeanant

could not obtain relief from an uncounseled conviction which,

although it could have, did not ultimately result in incarceration.

The       Court   was    careful    to   preserve     the   Argersinger     rule    and

summarized its previous holding as follows: "The Court in its

[Argersinger]           opinion    repeatedly   referred     to    trials   where   an

accused is deprived of his liberty and to a case that leads to

imprisonment even for a brief period."********               Thus, if an indigent

defendant has been convicted without the assistance of counsel and

without expressly waiving his right to same, incarceration is not

an available punishment.*********          Sending Haymer to jail because he

******
    Scott v. Illinois, 440               U.S.   367   (1979)      (paraphrasing     the
holding in Argersinger).
*******
    440 U.S. 367 (1979). See also United States v. Eckford, 910
F.2d 216, 218 (5th Cir. 1990) ("If an uncounseled defendant is
sentenced to prison, the conviction itself is unconstitutional.").
********
           Scott, 440 U.S. at 373 (quotations omitted).
*********
      "The judge can preserve the option of a jail sentence only by
offering counsel to any defendant unable to retain counsel on his
own." Argersinger, 407 U.S. at 42 (Burger, C.J., concurring). The
Court noted that traffic offenses typically do not require counsel.
Such prosecutions would only require appointed counsel where
"imprisonment actually occurs." The court pointed to a study in
Washington as an example and noted that the accused in traffic
court in that state only faced the possibility of jail time in

                                         - 13 -
could not afford the fine without first providing him counsel

violated the rule announced in Argersinger and, moreover, also

violated the due process guarantee********** and controlling state

law.***********

        I do not suggest that during or after the disposition of the

case the defendant is or should be immune from punishment for

contempt.************   I do suggest, however, that when reviewing the

validity of the underlying conviction we should ask whether there

is a meaningful difference between the punishment for contempt and

punishment for the offense.



three scenarios, including cases in which "the convicted individual
was unable to pay the fine imposed."       Id. at 38 n.10 (citing
Junker, The Right to Counsel in Misdemeanor Cases, 43 Wash. L. Rev.
685, 711 (1968)). See also Wang v. Whitworth, 811 F.2d 952, 956
(6th Cir.), cert. denied, 481 U.S. 1051 (1987); Sweeten v. Sneddon,
463 F.2d 713, 716 (10th Cir. 1972); Colson v. Joyce, 646 F. Supp.
102 (D. Me. 1986), aff'd, 816 F.2d 29 (1st Cir. 1987); United
States v. Ramirez, 555 F. Supp. 736 (E.D. Cal. 1983); Linkous v.
Jordan, 401 F. Supp. 1175 (W.D. Va. 1975).
**********
      Bearden v. Georgia, 461 U.S. 660 (1983) (state may not
convert fine to prison term absent finding that defendant has not
made bona fide effort to pay the fine or that no alternative
punishment could serve the state's interests).
***********
       Miss. Code Ann. § 99-19-20(2); Cassibry v. State, 453 So.2d
1298, 1299 (Miss. 1984) ("So long as Cassibry is "financially
unable to pay a fine" and the trial court so finds, he may not be
imprisoned, period.") (emphasis in original).
************
       Of course, if the prosecution hopes to punish that contempt
with incarceration, then it must provide counsel at that point.
Ridgway v. Baker, 720 F.2d 1409 (5th Cir. 1983). The existence of
the right to counsel varies according to the acuity of the
defendant's jeopardy. Mempa v. Rhay, 389 U.S. 128, 134 (1967).
Sentencing is among those critical stages of trial during which
counsel's presence is constitutionally required. Id. Likewise,
when a fine is converted to a prison term a quantum leap in
severity is affected and counsel's availability is imperative. See
Argersinger.

                                   - 14 -
        The majority assumes from a silent record, as did the district

court, that Haymer must have been sent to jail for contempt as a

result of his failing to pay the fine.                The record gives no

indication whatever that this assumed punishment for contempt was

distinct*************        from    his      punishment    for     stealing

cigarettes.**************      Indeed, the government suggested that the

contempt charge was really a vehicle for converting the form of

Haymer's punishment in view of his inability to pay.***************

Under these circumstances, characterizing the subsequent jail time

as a result of contempt rather than the underlying conviction

elevates form over substance.

        Ultimately, Haymer's punishment for stealing cigarettes, and

apparently for being too impoverished to afford the fine imposed,

was 18 or 19 days hard labor.              The conviction is invalid absent

some indication either that he waived the right to counsel before

that punishment was imposed or that the jail time was for conduct

other than that giving rise to the underlying conviction.            I would

not allow the same conviction to lead to another five months of

incarceration.


*************
        If this were true, then one would expect that the fine
would not be discharged after his time in jail. Again, the record
does not support such a finding. The majority apparently assumes
that the jail time was simply substituted for the fine as
punishment.
**************
         There is no evidence, for example, that Haymer was
disrespectful of the court or brazenly refused to pay the fine
despite being able financially to do so. The evidence indicates to
the contrary; he simply was impecunious and could not afford it.
***************
                  Of course, this also would be unconstitutional.   Bearden.

                                      - 15 -
I respectfully DISSENT.




                          - 16 -
