                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 09-4239


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

            v.

RAJUL RUHBAYAN, a/k/a Creme, a/k/a James Vernon Wood, a/k/a
James Vernette Johnson, a/k/a Kreem, a/k/a Day-Ja, a/k/a
Deja, a/k/a Amir Ruhbayan, a/k/a Jibra’el Ruh’alamin, a/k/a
Jibrael Ruhalamin,

                 Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, District
Judge. (2:02-cr-00029-RBS-FBS-1)


Submitted:    February 26, 2010             Decided:   March 12, 2010


Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Robert L.    Flax, Richmond, Virginia,     for Appellant.    Neil H.
MacBride,    United States Attorney,       James Ashford Metcalfe,
Assistant    United  States  Attorney,      Norfolk,  Virginia,  for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               Rajul    Ruhbayan       was    convicted        by     a   jury     in    2002   of

conspiracy to commit perjury and obstruction of justice; witness

tampering;          perjury;      suborning        perjury;         and     obstruction         of

justice in connection with his 2000 trial on federal drug and

firearms charges.            When he was initially sentenced in 2004, the

district       court       departed     upward       pursuant       to     U.S.     Sentencing

Guidelines Manual § 4A1.3, p.s. (2003), and USSG § 5K2.0, p.s.,

to impose a sentence of life imprisonment, with three additional

concurrent five-year terms.                   We affirmed the convictions, but

found error in the four-level adjustment for a leadership role,

USSG    § 3B1.1(a),         and    remanded        for   resentencing            under    United

States    v.    Booker,        543    U.S.     220    (2005).             United    States       v.

Ruhbayan, 406 F.3d 292, 298 (4th Cir. 2005).

               On     remand,        the     district         court       recalculated          the

advisory guideline range with a two-level role adjustment, USSG

§ 3B1.1(c), again departed upward from the guideline range, and

again    imposed       a    life     sentence.           We    affirmed      the        sentence.

United States v. Ruhbayan, 527 F.3d 107 (4th Cir. 2007).

               The     Supreme       Court    subsequently          granted        certiorari,

vacated this court’s judgment, and remanded for reconsideration

in   light     of    Kimbrough v.          United    States,        552     U.S.    85    (2007)

(holding that district courts may consider the crack-to-powder-

cocaine      guideline       sentencing        ratio      as    a     possible      basis       for

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variance from the guidelines).               We decided that resentencing was

warranted, vacated the sentence, and remanded for resentencing

in light of Kimbrough.          United States v. Ruhbayan, 294 F. App'x

23 (4th Cir. 2008).

            The     day   before        he       was    resentenced,        Ruhbayan’s

appointed    attorney     moved    to    withdraw        and     Ruhbayan    moved   to

proceed pro se, stating that his attorney had refused to make

certain legal arguments he wanted to present.                        Ruhbayan asked

for new counsel or, alternatively, to be permitted to represent

himself with a new attorney to assist him.                       The district court

denied    both    motions,   explaining          that   Ruhbayan’s     attorney      had

represented him through seven years of litigation, the narrow

legal issue before the court had been fully briefed, no new

circumstances warranted counsel’s withdrawal, and Ruhbayan would

be given an opportunity to make any arguments he wished the

court to hear.

            The district court observed that, even if Ruhbayan’s

offense   level    were   decreased      by      two    levels    according    to    the

revised    guidelines     for   crack        offenses     effective    in     November

2007, his offense level would remain at 30 and his guideline

range would not change.            The court heard Ruhbayan’s argument

that it was without subject matter jurisdiction over his case

and other issues and found them to be meritless.                     The court also

heard Ruhbayan’s allocution concerning the appropriate sentence.

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               The       court     then     stated          that,        reconsidering             the

previously-imposed sentence in light of Kimbrough, the court was

still of the view that, in this case, the crack/powder disparity

did not yield a sentence greater than necessary to achieve the

sentencing purposes set out in 18 U.S.C. § 3553(a) (2006).                                          The

court     reviewed        its     reasons     for      previously         imposing           a    life

sentence       and       stated    “the      sentence        previously            imposed         and

reimposed now is a sentence that is sufficient but not greater

than necessary to meet these statutory considerations[.]”                                          The

court then reimposed a life sentence on the witness tampering

count, with concurrent sixty-month sentences for each of the

three other counts.

               On appeal, Ruhbayan first argues that the court erred

in denying his motion for self-representation.                                A defendant has

a   Sixth      amendment          right     to       represent          himself         at       trial.

Faretta v.      California,          422    U.S.      806    (1975).           A    defendant’s

assertion      of     his    right     of    self-representation               constitutes           a

waiver    of    his      right    to   counsel,        and       must    be   (1)       clear      and

unequivocal; (2) knowing, intelligent, and voluntary; and (3)

timely.        United States v. Frazier-El, 204 F.3d 553, 558 (4th

Cir. 2000).

               In     this       circuit,        after       a     defendant            has        been

represented         at   trial     with     counsel,        his    request         to    represent

himself is within the discretion of the district court.                                       United

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States   v.    Singleton,       107       F.3d    1091,       1096    (4th       Cir.    1997).

Moreover, a defendant who wishes to proceed pro se does not have

a right under Faretta to the assistance of an attorney as stand-

by counsel or co-counsel.             Id.

              Here,      Ruhbayan’s       request     to       represent         himself    was

neither unequivocal nor timely.                   He was represented by counsel

at trial and during the appeal process.                          Not until his second

resentencing        hearing         did     he    ask      for        new    counsel        or,

alternatively, to represent himself with a new attorney as back-

up counsel.         In addition, at sentencing, Ruhbayan’s attorney

stated     that     his    client     wanted       him     to    make       certain       legal

arguments which he did not believe were justified.                                     “A trial

court must be permitted to distinguish between a manipulative

effort to present particular arguments and a sincere desire to

dispense with the benefits of counsel.”                       Frazier-El, 204 F.3d at

560.     The record makes clear that Ruhbayan’s request was “a

manipulative        effort     to    present       certain       arguments[.]”              Id.

Therefore, we conclude that the district court did not abuse its

discretion in denying Ruhbayan’s motion to represent himself at

his second resentencing hearing.

              Next,      Ruhbayan     contends       that       the    district         court’s

reimposition of a life sentence was unreasonable.                            A sentence is

reviewed      for     reasonableness         under       an     abuse       of    discretion

standard.         Gall    v.   United       States,      552    U.S.    38,       51    (2007).

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Generally, this requires consideration of both the procedural

and    substantive    reasonableness          of    a    sentence.       Id.      After

determining whether the district court properly calculated the

defendant’s advisory guideline range, we must decide whether the

district court considered the § 3553(a) factors, analyzed the

arguments presented by the parties, and sufficiently explained

the selected sentence.          Id.; see also United States v. Carter,

564 F.3d 325, 330 (4th Cir. 2009).                        Finally, we review the

substantive reasonableness of the sentence, “taking into account

the totality of the circumstances, including the extent of any

variance from the guideline range.”                 Gall, 552 U.S. at 51.

            Ruhbayan    argues     that       the   district     court    abused    its

discretion     when    it     reimposed        a    life      sentence    after    his

culpability had been reduced on appeal; he specifically refers

to the leadership role adjustment (reduced from four levels to

two levels after his first appeal) and to the application of the

2007    reduced   crack       guidelines       at       his   second    resentencing.

Ruhbayan claims that the district court erred in limiting itself

to reconsideration of his sentence in light of Kimbrough and by

failing   to   take    into    account     certain        mitigating     factors   and

giving too much emphasis to his criminal history.

            We conclude that these arguments are without merit.

Ruhbayan’s     case    was     remanded       for       the   limited    purpose    of

resentencing in light of Kimbrough.                 Before imposing sentence on

                                          6
remand, the district court described the reason for the remand,

summarized          the   holding         in    Kimbrough,          and    acknowledged       its

discretion          to        conclude     that        the     crack/powder        sentencing

disparity      resulted          in   a    sentence         greater       than   necessary     to

achieve the purposes set out in § 3553(a).                                   The court then

determined that, in Ruhbayan’s case, the crack/powder disparity

did   not   yield         a    sentence        greater      than    necessary      to   achieve

§ 3553(a)’s purposes and a downward variance from the guideline

range was not appropriate.                     We conclude that the district court

properly considered whether Kimbrough had any mitigating effect

and     adequately        explained        its        decision      to     reimpose     a     life

sentence.       We further conclude that the extent of the departure

was reasonable.

               We     therefore        affirm         the    sentence       imposed     by    the

district    court.             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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