UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                         No. 97-4904
MICHAEL ANTHONY SMITH, SR., a/k/a
Michael A. Smith,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Charlottesville.
James H. Michael, Jr., Senior District Judge.
(CR-96-58)

Submitted: August 31, 1998

Decided: September 16, 1998

Before ERVIN and MICHAEL, Circuit Judges, and
HALL, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Raymond Lee Clarke, Charlottesville, Virginia, for Appellant. Robert
P. Crouch, Jr., United States Attorney, Ray B. Fitzgerald, Jr., Assis-
tant United States Attorney, Charlottesville, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

A jury convicted Michael Anthony Smith of possession with intent
to distribute cocaine base;1 he was sentenced to serve 360 months'
imprisonment. On appeal, Smith challenges the district court's jury
instructions on unreported and unexplained wealth being indicative of
narcotics trafficking. He also contends that the court erroneously
determined his relevant conduct during sentencing by converting the
currency seized upon his arrest to its equivalent in cocaine base. Find-
ing no reversible error, we affirm.

Based on a tip from a confidential informant that Smith was selling
crack cocaine from his residence, local police officers arranged for an
operative to purchase crack cocaine from Smith using marked money.
On three occasions, the operative went to Smith's residence with the
marked money and returned with crack cocaine. Within hours of the
third transaction, officers executed a search warrant for Smith's resi-
dence. The search resulted in the recovery of 14.67 grams of crack
cocaine from Smith's pocket and a total of $7170 in cash. The bulk
of seized money ($7042) was found in an upstairs bedroom, while the
remainder was found in Smith's other pocket. Of the money found on
Smith's person, $30 was "marked" money used by the police opera-
tive to purchase drugs.

At trial, Smith denied selling cocaine and testified that the seized
currency represented lottery winnings and profits from his business
selling clothes from his home for cash only. Smith presented evidence
from several clerks from neighborhood convenience stores who testi-
fied they remembered paying Smith on winning lottery tickets and
witnesses who were acquainted with Smith's clothing business.

Prior to instructing the jury, the Government and defense counsel
participated in the court's instructions conference held in chambers.
_________________________________________________________________

1 See 21 U.S.C. § 841(a)(1) (1994).

                    2
Smith's counsel objected to the court instructing the jury on the rele-
vancy of unexplained and unreported wealth, arguing that the seized
currency did not represent "wealth" and was not "unexplained." Not-
withstanding, he negotiated a change in the language of the instruc-
tion to Smith's favor. At the conclusion of the conference, the court
informed counsel that it would entertain objections after instructing
the jury. Yet when the court finished instructing the jury, Smith's
counsel specifically responded to the court that he had no objections
to the jury charge.

Because Smith's counsel did not object to the instructions after
they were given to the jury, as required by Fed. R. Crim. P. 30, we
must determine if the error has been forfeited or waived. If forfeited,
we review for plain error.2 If the error has been waived, it is not sub-
ject to appellate review.3 Here, Smith's counsel had an opportunity to
object to the jury instructions to correct any error or to preserve the
issue for appeal, and he stated he had no objection. We find that such
an "intentional relinquishment or abandonment of a known right"
waives any error based on the jury instructions. 4

Smith also contends that he should not have been held accountable
for both the quantity of cocaine base that was seized from his person
and for the cocaine base equivalent of the seized currency. The dis-
trict court converted the total amount of seized currency ($7170) to
35.85 grams of cocaine base and combined it with the 14.67 grams
of cocaine base recovered from Smith's person, for a total of 50.52
grams of cocaine base that the court attributed to Smith as relevant
conduct. Smith contends the entire $7170 should not have been used
to determine his relevant conduct since he presented evidence that he
had won the lottery and that he was engaged in a cash-only clothing
business. However, since Smith provided no evidence that the partic-
ular money seized derived from lawful sources, we reject this claim.
_________________________________________________________________
2 See Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725,
730-32 (1993).
3 See United States v. David, 83 F.3d 638, 641 n.5 (4th Cir. 1996) (not-
ing distinction between forfeiture and waiver).
4 Olano, 507 U.S. at 731; see United States v. Byrd, 542 F.2d 1026,
1028 (8th Cir. 1976) (finding counsel's failure to object after jury charge
foreclosed appellate review).

                    3
We review the district court's calculation of drug amounts for clear
error.5 When calculating the amount of narcotics attributable to a
defendant, the court should include all relevant quantities of drugs in
this calculation.6 Seized currency may be converted to its drug equiv-
alent for purposes of sentencing when the Government furnishes
some evidence that the currency was derived from the defendant's
drug related activity.7

Here, the Government demonstrated an adequate connection
between the seized currency and Smith's drug activity. There was evi-
dence that officers assisted an operative with buying crack cocaine
from Smith on three occasions, and "marked" money was found on
Smith's person. The currency seized was an unusually large sum of
money, especially since Smith was unemployed and had not reported
any earnings to either the Internal Revenue or to his probation officer.
Although Smith claimed to have obtained thousands of dollars by
winning the lottery and selling clothes and presented witnesses who
testified to this fact, "[t]he judge present at the sentencing hearing
[was] in the best position to determine the credibility of the witnesses
and the source of the currency."8 Therefore, we find that the district
court did not clearly err in discrediting Smith's explanations and con-
verting the seized currency into its drug equivalent.

Accordingly, we affirm Smith's conviction and sentence. We dis-
pense 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
_________________________________________________________________

5 See United States v. Hicks, 948 F.2d 877, 881 (4th Cir. 1991).

6 See U.S. Sentencing Guidelines Manual § 1B1.3(a)(2) (1995) (rele-
vant conduct provision); USSG § 2D1.1 comment. (n.12) ("Types and
quantities of drugs not specified in the count of conviction may be con-
sidered in determining the offense level").

7 See Hicks, 948 F.2d at 882 (holding that cash seized from defendant's
home should be considered as relevant conduct and used in determining
the base offense level).

8 United States v. Jackson, 3 F.3d 506, 512 (1st Cir. 1993).

                    4
