               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                             No. 02-10672
                           Summary Calendar



UNITED STATES OF AMERICA

          Plaintiff - Appellee

     v

RYAN KEITH FIELDS

          Defendant - Appellant

                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                    USDC No. 5:01-CR-127-1-C
                      --------------------
                        January 24, 2003

Before KING, Chief Judge, and SMITH and DENNIS, Circuit Judges.

PER CURIAM:*

     Ryan Keith Fields appeals his jury conviction for

possession with intent to distribute more than 50 grams of

cocaine base, possession of a firearm in furtherance of a drug

trafficking crime, and being a convicted felon in possession of a

firearm, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(iii),

and 18 U.S.C. §§ 2, 922(g)(1) and 924(c).




     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                             No. 02-10672
                                  -2-

     Fields argues that he was denied his right to self-

representation.    A defendant’s desire to exercise the right to

self-representation must be made knowingly and intelligently, and

clearly and unequivocally.     See Faretta v. California, 422 U.S.

806, 835 (1975); United States v. Martin, 790 F.2d 1215, 1218

(5th Cir. 1986).    The right to self-representation extends to

sentencing proceedings.     United States v. Davis, 285 F.3d 378,

385 (5th Cir. 2002).

     Fields filed a written motion prior to trial indicating that

he wished to proceed with self-representation.    At the hearing on

his motion for self-representation, he requested a continuance

premised on his admission that he was not prepared to represent

himself at trial due to his lack of knowledge of the federal

evidentiary rules and his unfamiliarity with the evidence in his

case.   The district court denied his motion for a continuance,

and Fields appeals that denial, arguing that the result of the

denial was unduly harsh.    If the district court’s denial of a

continuance is neither arbitrary nor unreasonable, this court

upholds the decision to deny the continuance, even when the

decision is harsh.     United States v. Hughey, 147 F.3d 423, 431

(5th Cir. 1998).    Fields has not shown that the district court’s

refusal to grant the continuance was an abuse of discretion.

     Once Fields learned that he would not be granted a

continuance and he also learned that stand-by counsel would not

be able to assume an active role in the trial, Fields expressed
                           No. 02-10672
                                -3-

concern about his ability to represent himself and his request to

proceed with self-representation was no longer clear and

unequivocal.   Therefore, Fields did not clearly and unequivocally

assert the right to self-representation, and the district court

did not commit error when it denied his motion.     See Brown v.

Wainwright, 665 F.2d 607, 611 (5th Cir. 1982) (a defendant who

asserts the right to self-representation may be deemed to have

waived that right if he vacillates on the issue or abandons his

request altogether).

     Fields also filed a motion prior to his sentencing hearing

in which he indicated that he wished to exercise the right to

self-representation.   However, after the district court denied

his motion, Fields personally sought a continuance of the

sentencing hearing so that his court-appointed attorney could be

present.   Once his court-appointed attorney returned, Fields

permitted her, without objection, to represent him fully

throughout the course of the proceeding.   Thus, Fields’

subsequent conduct indicates that he equivocated on his assertion

of the right to self-representation, and the district court’s

denial of his motion is not reversible error.     See Brown, 665

F.2d at 611.

     Fields also argues that the district court abused its

discretion when it denied his motion for a new trial based on

newly discovered evidence that he contends supports his

justification defense.   Fields sought a new trial based on police
                           No. 02-10672
                                -4-

reports indicating that the person to whom Fields was purportedly

bringing the drugs was arrested after the trial for possession of

drugs and prior to the trial for a crime of violence.   Motions

for a new trial based on newly discovered evidence are disfavored

and are only properly granted when a defendant shows, inter alia,

that evidence would probably produce an acquittal at a new trial.

United States v. Freeman, 77 F.3d 812, 817 (5th Cir. 1996).

Since a justification defense requires, inter alia, imminent fear

of bodily harm, see United States v. Posada-Rios, 158 F.3d 832,

873-74 (5th Cir. 1998), and the police reports do not establish

that Fields was in imminent fear of bodily harm, Fields has not

shown that the newly discovered evidence would produce acquittal

at a new trial.   Therefore, the district court did not abuse its

discretion when it denied Fields’ motion for new trial.   See

Freeman, 77 F.3d at 817.

     Fields also argues that the district court erred when it did

not hold a hearing on his motion for a new trial.   The district

court may deny a motion for a new trial without holding an

evidentiary hearing.   See United States v. MMR Corp., 954 F.2d

1040, 1046 (5th Cir. 1992).   Fields has not demonstrated that his

situation was sufficiently unique to warrant an evidentiary

hearing.   See United States v. Hamilton, 559 F.2d 1370, 1373 (5th

Cir. 1977) (listing situations).   Thus, the district court’s

decision not to hold a hearing was not error.
                          No. 02-10672
                               -5-

     Fields argues that the felon in possession of a firearm

statute, 18 U.S.C. § 922(g)(1), is unconstitutional because it

does not require a “substantial” effect on interstate commerce.

His argument is foreclosed by United States v. Daugherty, 264

F.3d 513, 517 (5th Cir. 2001), cert. denied, 534 U.S. 1150

(2002).

     Based on the foregoing, the judgment of conviction and

sentence are AFFIRMED.
