UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 96-4070

JOSEPH ALVAREZ, a/k/a Joe Hill,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 96-4075

CLINT R. LAWSON,
Defendant-Appellant.

Appeals from the United States District Court
for the Southern District of West Virginia, at Bluefield.
David A. Faber, District Judge.
(CR-95-72)

Argued: October 27, 1997

Decided: May 5, 1998

Before WIDENER and MURNAGHAN, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion. Judge Murnaghan
wrote a concurring and dissenting opinion.

_________________________________________________________________
COUNSEL

ARGUED: William D. Turner, III, Lewisburg, West Virginia, for
Appellant Lawson; Phillip A. Scantlebury, WHITE, SMITH, MOR-
GAN & SCANTLEBURY, L.C., Bluefield, West Virginia, for Appel-
lant Alvarez. Philip Judson Combs, Assistant United States Attorney,
Charleston, West Virginia, for Appellee. ON BRIEF: Rebecca A.
Betts, United States Attorney, John C. Parr, Assistant United States
Attorney, Charleston, West Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Joseph Alvarez, Clint R. Lawson and William P. Haskins were
indicted for conspiracy and other drug related offenses in the same
multi-count, multi-defendant indictment. Alvarez was convicted in a
bench trial of conspiring to distribute and to possess with intent to dis-
tribute crack cocaine in violation of 21 U.S.C.§ 846 (1994) and was
sentenced to 360 months imprisonment, five years supervised release,
and a $10,000 fine. Lawson pleaded guilty to one count of cocaine
distribution and was sentenced to 84 months imprisonment, three
years supervised release, and a $2,000 fine. Haskins pleaded guilty to
three counts of crack cocaine distribution and one count of aiding and
abetting the distribution of crack cocaine and was sentenced to 420
months imprisonment, five years supervised release, and a $15,000
fine. In this consolidated appeal, Alvarez appeals his conviction and
sentence, and Lawson appeals his sentence.* We have jurisdiction
pursuant to 28 U.S.C. § 1291 and 18 U.S.C.§ 3742. We affirm.
_________________________________________________________________
*Haskins also appealed his sentence, and appellate counsel was
appointed. Haskins later moved to strike the brief previously filed on his
behalf by his counsel and notified the court that he would proceed pro

                    2
I. ALVAREZ

Viewed in the light most favorable to the government, the evidence
at trial showed that in late March or early April 1995 Alvarez met
Jose Ortiz, a longtime friend, in the Bronx, New York. Ortiz told
Alvarez he was selling crack in Beckley, West Virginia, and Alvarez
decided to join him. Alvarez then traveled to West Virginia with con-
spirators William Haskins and others. Ortiz remained in New York
because his source was temporarily out of crack. Alvarez and Haskins
began selling small amounts of locally-obtained crack while they
waited for Ortiz to return with a larger supply of crack.

On April 23, 1995, Ortiz arrived in Beckley with 250 grams of
crack, and Alvarez was fronted 28 grams. Ortiz, Mason and Haskins
each took a portion of the crack, and Haskins hid the remainder in his
aunt's house, where he and Alvarez were living. On April 26, Ortiz
and Haskins met with state and federal undercover agents at a motel
and exchanged cash and crack for firearms and a silencer. Ortiz and
Haskins were immediately arrested.

While in jail, Ortiz telephoned Alvarez and told Alvarez that he
needed money. Alvarez told Ortiz he had collected money owed to
Ortiz from people who had been fronted crack, and Ortiz asked him
to send the money to his family in New York. In addition, Haskins
called Alvarez from jail and told him to sell the hidden crack. Haskins
also called Clint Lawson and asked him to contact Alvarez and
Mason about collecting some of the money owed Lawson.

Lawson saw Alvarez on several occasions and requested Haskins'
money. At first, Alvarez said he would get money orders for Lawson.
In fact, Alvarez never provided any money to Lawson or Haskins.
During this time, Alvarez came to Mason with an ounce of crack that
_________________________________________________________________
se. This court construed Haskins' motion to include a motion to relieve
his counsel. By order, we relieved Haskins' counsel of his obligation of
representation and permitted Haskins to proceed pro se. Consequently,
we have severed Haskins case from those of Alvarez and Lawson for the
purpose of the appeal and will decide it separately. Cf. United States v.
Jackson, 863 F.2d 1168, 1170 n.1 (4th Cir. 1989).

                    3
he said he found, and they split and sold it. In September 1995, Alva-
rez was arrested while in possession of 4.51 grams of crack.

Although Alvarez wanted to go to trial with his co-defendants who
had been previously arrested, the co-defendants all entered guilty
pleas. Originally, attorney Mark Wills represented Alvarez, but was
replaced by Clinton W. Smith when Wills fell ill. At a pre-trial hear-
ing, Alvarez requested new counsel because, he claimed, attorney
Smith wanted him to plead guilty, and the court declined. Alvarez
then said he wanted to waive a jury trial because his lawyer told him
he could not receive a fair trial before a white West Virginia jury. The
district court assured Alvarez that he could get a fair trial and deferred
accepting his waiver so that he could consult with his attorney. Later,
Alvarez executed a written waiver of a jury trial and was tried before
the court. Ortiz, Haskins, Mason, and Clint Lawson testified at the
trial. Alvarez did not testify, and the court found him guilty. Alvarez
challenges his conviction on multiple grounds.

Alvarez first maintains that the district court erred in failing to
advise him of his right to testify and in failing to determine in the
record that his decision not to testify was knowing and intelligent. A
district court has no duty to advise a defendant of his right to testify
or to obtain an on-the-record waiver. United States v. McMeans, 997
F.2d 162, 163 (4th Cir. 1991). Alvarez's attorney had the primary
responsibility for advising him that he had the right and whether he
should exercise it. See United States v. Ortiz , 82 F.3d 1066, 1070
(D.C. Cir. 1996). In this case, the district court did not advise Alvarez
of his right to testify or ask whether he knew he had the right. Never-
theless, there is nothing in the record that reveals Alvarez did not
know of the right or wished to testify but was prevented from doing
so by his attorney. Representation by counsel gives rise to a presump-
tion of waiver. Ortiz, 82 F.3d at 1071. Accordingly, we find this claim
has no merit.

Alvarez next asserts that his jury trial waiver was unknowing and
involuntary because the district court did not question him on the
record about the voluntariness of the waiver. Under Fed. R. Crim. P.
23(a), a defendant may waive a jury trial if the waiver is in writing
and has the approval of the court and the consent of the government.
The government and the court consented to a bench trial. We have

                     4
held that an in-court colloquy to determine voluntariness of the
waiver is good practice, but it is not required by the Constitution or
Rule 23(a). United States v. Hunt, 413 F.2d 983, 984 (4th Cir. 1969).
We find it noteworthy, but not legally significant, that although not
required, the district court made Alvarez aware of the fact that the
jury would consist of members of the community, that he could par-
ticipate in the selection of the jury, and that the court would try him
if he waived a jury trial.

Alvarez also contends that his attorney was ineffective. Claims of
ineffective assistance are not properly raised on direct appeal unless
the record conclusively discloses that the defendant received inade-
quate representation. United States v. Smith, 62 F.3d 641, 651 (4th
Cir. 1995). The record does not conclusively establish ineffective
assistance in this case.

In addition, Alvarez argues that the district court should have
appointed new counsel based on his representations that his attorney
advised him to waive a jury trial because he could not get a fair trial
from a white West Virginia jury. Nonetheless, the record demon-
strates that when Alvarez made the statement regarding a fair trial
from a white jury the court had already denied his request for new
counsel. A district court's decision to deny a request for new counsel
is reviewed for abuse of discretion. United States v. Mullen, 32 F.3d
891, 895 (4th Cir. 1994). The factors to consider are the timeliness of
the motion, the adequacy of the court's inquiry into the defendant's
complaint about his current counsel, and whether the attorney-client
relationship had deteriorated to the point that there was a complete
lack of communication preventing an adequate defense. Mullen, 32
F.3d at 895.

Alvarez made his request 15 days after new counsel was appointed
to replace his first attorney, who withdrew for health reasons. Alvarez
complained that the second attorney did not want to go to trial and
urged him to plead guilty. The district court conducted a brief but
adequate inquiry. The attorney explained that he had read all of the
relevant materials and had simply presented the government's plea
offer for Alvarez's consideration. There is no indication that commu-
nications had broken down completely at that point, and the attorney
subsequently conducted a vigorous defense of Alvarez during his

                    5
bench trial. On these facts, we find that the district court did not abuse
its discretion in denying the motion for new counsel.

Alvarez further claims that there was insufficient evidence to con-
vict him of participation in the conspiracy because the testimony of
Ortiz, Haskins and Mason was inconsistent and incredible. He notes
that the witnesses gave slightly different accounts of the conversation
in which Ortiz and Alvarez agreed that Alvarez would go to West
Virginia. Viewing the evidence in the light most favorable to the gov-
ernment, a verdict must be upheld if it is supported by substantial evi-
dence such that a trier of fact could find the elements of the crime
proven beyond a reasonable doubt. Glasser v. United States, 315 U.S.
60, 80 (1942). The elements of conspiracy are: an agreement between
two or more persons to violate the federal drug laws; and the defen-
dant's willful joinder in that agreement or undertaking. 21 U.S.C.
§ 846; United States v. Clark, 928 F.2d 639, 641-42 (4th Cir. 1991).
We agree with the district court that the slight differences in detail on
which Alvarez bases his argument do not outweigh the evidence that
Alvarez agreed to sell crack with the others in West Virginia and did
so.

Alvarez contests the district court's decision not to give him a
minor or minimal role adjustment. United States Sentencing Guide-
lines Manual § 3B1.2 (1995). In addition, he challenges the district
court's decision to give him a 2-level adjustment for obstruction of
justice because of the threats he made to other conspirators. United
States Sentencing Guidelines Manual § 3C1.1, comment. n.3(a)
(1995) (threatening or attempting to threaten co-defendant or wit-
ness). Alvarez also disputes the enhancement he received under the
United States Sentencing Guidelines Manual § 2D1.1(b)(1) (1995),
which provides for a 2-level increase if a dangerous weapon, includ-
ing a firearm, was possessed during the offense. The district court's
factual findings on these matters were not clearly erroneous. United
States v. Brooks, 957 F.2d 1138, 1149 (4th Cir. 1992).

Also regarding his sentence, Alvarez argues that the 250 grams of
crack that Ortiz brought to West Virginia from New York on April
23, 1995, should not be attributed to him because he did not help
obtain it and only sold a small portion of it. The district court, how-
ever, properly found that the entire amount was part of Alvarez's rele-

                     6
vant conduct because he was responsible for all acts undertaken by
his co-conspirators in furtherance of the conspiracy and within the
scope of his own agreement. United States Sentencing Guidelines
Manual § 1B1.3(a)(1)(B) (1995).

Finally, Alvarez contends that the district court erred by admitting
all evidence concerning the activities of Ortiz, Haskins, and Mason
before the time he came to West Virginia, as well as evidence of the
crack-for-guns exchange with undercover police. Such evidentiary
rulings by the district court are reviewed for abuse of discretion.
United States v. Boyd, 53 F.3d 631, 635 (4th Cir.), cert denied, 116
S.Ct. 322 (1995). Assuming that the issues were preserved for appeal,
the district court did not abuse its discretion in admitting this evi-
dence. Evidence is relevant if it has "any tendency to make the exis-
tence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the
evidence." Fed. R. Evid. 401. The challenged evidence was relevant
to prove the existence of the conspiracy that Alvarez joined and also
to show that the conspirators' methods included firearms. Finding
Alvarez's claims meritless, we affirm.

II. LAWSON

Lawson pleaded guilty to a charge of distributing cocaine base in
violation of 21 U.S.C. § 841(a)(1). The activity giving rise to the
charge was the sale of .49 grams of cocaine base to a government
informant in January 1994. In sentencing Lawson, the district court
found that the 28 grams of crack that he distributed to guests at a
Super Bowl party, including the same government informant, in Janu-
ary 1995 was part of the same course of conduct as the three grams
of crack he possessed in January 1994, .49 grams of which he distrib-
uted to the government informant. See United States Sentencing
Guidelines Manual § 1B1.3(a)(2) (1995). The result was that Law-
son's Base Offense Level was 28, and his Total Offense Level was
25. Lawson contends that the district court erred in its relevant con-
duct assessment. We review the court's factual findings for clear
error. United States v. Williams, 977 F.2d 866, 870 (4th Cir. 1992).

The United States Sentencing Guidelines Manual § 1B1.3(a)(2)
(1995) provides for a sentencing adjustment for"all acts and omis-

                    7
sions . . . that were part of the same course of conduct or common
scheme or plan as the offense of conviction." Activities are part of the
same course of conduct or common scheme or plan if they meet the
"similarity, regularity and temporal proximity" test of United States
v. Mullins, 971 F.2d 1138, 1143-44 (4th Cir. 1992). Weak evidence
for one prong of the Mullins test can be overcome by a strong show-
ing as to the other prongs. Mullins, 971 F.2d at 1144. Because the
charge to which Lawson pleaded guilty was a distribution charge, a
proper frame of reference in evaluating the Mullins test is distribution,
rather than necessarily conspiracy.

Two transactions were described in Lawson's presentence report,
and the government presented no further evidence at his sentencing.
The district court concluded that the activities were similar. The gov-
ernment conceded that the crack came from different sources, but
demonstrated that it was distributed in the same area on both occa-
sions. The fact that the cocaine base in the two instances may have
originated from different sources does not make the distributive con-
duct dissimilar. Moreover, it is clear from United States v.
Washington, 41 F.3d 917 (4th Cir. 1994), that the sharing of cocaine
base with friends at the 1995 Super Bowl party is a distribution of
cocaine base equivalent to the sale of the drug. Thus, both distribu-
tions were similar in that they both involved cocaine base and
occurred in the same area.

The district court also concluded that the activities were temporally
proximate. In United States v. Santiago, 906 F.2d 867 (2d Cir. 1990),
the court found that drug sales that were eight to fourteen months
prior to the drug distribution that resulted in conviction had sufficient
temporal proximity and were properly attributed to the defendant as
relevant conduct. The district court in the present case made a like
finding, and we do not conclude that it was clearly erroneous.

We need not address whether the two transactions are sufficiently
regular because a sufficiently strong showing was made with regard
to temporal proximity and similarity to overcome any weakness in
regularity. Nevertheless, we observe that the district court may have
construed the evidence regarding the 1995 Super Bowl party distribu-
tion as evidence of Lawson's intent to continue distributing cocaine
base. Cf. Santiago, 906 F.2d at 873. Therefore, the district court did

                     8
not err by including the January 1995 cocaine base distribution in
Lawson's sentencing.

For the reasons discussed above, the judgments of the district court
with regard to Alvarez and Lawson are

AFFIRMED.

MURNAGHAN, Circuit Judge, concurring in part and dissenting in
part:

While I concur in that portion of the majority's opinion which
affirms the conviction and sentence of Alvarez, I respectfully dissent
from the majority's conclusion that Lawson was properly sentenced.
Accordingly, I would vacate Lawson's sentence and remand for
resentencing.

Because the government did not seek to prosecute Lawson for the
distribution of 28 grams of cocaine base in January 1995, but obtained
a conviction only with respect to Lawson's sale of cocaine base in
January 1994, Lawson's 1995 conduct may not be taken into consid-
eration for sentencing purposes unless the 1995 distribution and 1994
sale were part of the same "course of conduct" under § 1B1.3(a)(2)
of the Sentencing Guidelines. I agree with the majority that the course
of conduct inquiry is guided by the three-part test of temporal proxim-
ity, regularity, and similarity set forth in United States v. Mullins, 971
F.2d 1138 (4th Cir. 1992). Unlike the majority, however, I believe the
government failed to establish that Lawson's 1994 offense of convic-
tion and 1995 conduct were "sufficiently connected or related to each
other as to warrant the conclusion that they [were] part of a single epi-
sode, spree, or ongoing series of offenses." U.S. Sentencing Guide-
lines Manual § 1B1.3 cmt. 9(B) (1995).

I cannot reconcile the majority's finding that Lawson's two
offenses are temporally proximate with either the definition of prox-
imity* or our conclusion in Mullins that a lapse of six months
_________________________________________________________________
*Webster's Third New International Dictionary defines "proximate" as
"very near," or "immediately adjoining," and "proximity" as "the quality
or state of being proximate, next, or very near." Webster's Third New
International Dictionary 1828 (1993).

                     9
between offenses rendered the element of temporal proximity "ex-
tremely weak . . . , if present at all." Mullins, 971 F.2d at 1144. If
offenses separated by six months are temporally remote, logic coun-
sels that offenses divided by an interval of twice that duration are not
temporally proximate.

The majority relies on United States v. Santiago , 906 F.2d 867 (2d
Cir. 1990), in which the Second Circuit held that the defendant's
course of conduct included twelve sales of heroin which occurred
more than eight months before the offense of conviction. Id. at 872-
73. The Santiago court did not find, contrary to the majority's asser-
tion, that the offenses were temporally proximate, but determined that
the strength of the evidence on the factors of similarity and regularity
supported attribution of the twelve drug sales to the defendant. Rec-
ognizing that the interval was "considerably longer" than that
involved in prior cases, the court remarked "[n]onetheless, whether
two or more transactions may be part of the same course of conduct
is not determined by temporal proximity alone." Id. at 872.

Moreover, it was clear in Santiago that the lapse between offenses
had been caused by the arrest of the defendant's buyer, and not by a
voluntary abandonment of the course of conduct. The absence of tem-
poral proximity will not preclude a course of conduct finding if the
interval results because "participants are forced to put the venture `on
hold.'" United States v. Hill, 79 F.3d 1477, 1483 (6th Cir. 1996). The
government here, however, failed to show that the twelve-month
lapse between Lawson's offenses was caused by something other than
Lawson's voluntary abandonment of the course of conduct. Nothing
in the record suggests that Lawson, for example, was unable to obtain
cocaine base for distribution between January 1994 and January 1995,
or that he could not locate purchasers for his product. Moreover, the
government failed to demonstrate that Lawson distributed drugs dur-
ing the interval. Therefore, I believe that the unexplained suspension
of drug distribution for an entire year must bar a determination that
Lawson's offenses were part of the same course of conduct unless the
government has made a strong showing of both similarity and regular-
ity.

With respect to similarity, I am unconvinced that the government
may make the required showing merely by asserting that two offenses

                     10
involved the same controlled substance and occurred in approxi-
mately the same location. The fact that offenses are"of the same
kind" does not demonstrate that they are part of the same course of
conduct. See Mullins, 971 F.2d at 1145. Particularly when uncharged
conduct is temporally remote from the offense conduct, "it is not
enough that the extraneous conduct merely amounts to the same
offense as the offense for which the defendant was convicted. Rather,
in looking beyond the offense of conviction, [the] court must consider
whether specific similarities exist between" the two offenses. United
States v. Hahn, 960 F.2d 903, 910 (9th Cir. 1992) (emphasis added)
(internal citations omitted). Relevant factors include "the similarity of
the offenses (i.e., two sales of cocaine as opposed to a sale of cocaine
and a sale of LSD); the quantities involved; the location of the
offenses; [and] the identity of the supplier, buyer, or other partici-
pants." United States v. Wilson, 106 F.3d 1140, 1144 (3d Cir. 1997)
(citing Hill, 79 F.3d at 1484-85).

Specific similarities between Lawson's 1994 and 1995 offenses are
few. The government conceded that Lawson's supplier for the 1994
sale was not the person who supplied Lawson with cocaine base in
1995. Furthermore, I find no support in the record for the majority's
conclusion that the government informant who purchased cocaine
base from Lawson in 1994 was present at the 1995 Super Bowl party.
Lawson's presentence investigation report does not indicate that the
informant was a guest at that party, and Lawson did not admit during
sentencing that the informant had attended. Moreover, the quantities
involved in the two offenses--.49 grams in 1994 and 28 grams in
1995--were markedly different.

The fact that both offenses may be swept within the broad defini-
tion of "distribution" does not establish an aspect of similarity. "In
evaluating offenses under the similarity prong, a court must not do so
at such `a level of generality that would render worthless the relevant
conduct analysis.'" Wilson, 106 F.3d at 1144 (quoting Hill, 79 F.3d
at 1483). The dissimilar methods of distribution used in Lawson's
offense of conviction and uncharged conduct undermine a finding of
similarity.

Finally, regularity is not established where the government has
proved only one dissimilar offense in addition to the offense of con-

                     11
viction. See Mullins, 971 F.2d at 1144 (finding an absence of regular-
ity where the uncharged conduct comprised one prior scheme to
defraud several life insurance companies); Hill , 79 F.3d at 1484
(holding that "[r]egularity is completely absent here, for the govern-
ment proved only one prior offense."). I cannot agree with the major-
ity, in the absence of any evidence that Lawson regularly engaged in
the distribution of narcotics, that a finding of regularity may be based
on speculation that Lawson intended to continue to distribute cocaine
base in the future.

In sum, the government here proved only that Lawson twice dis-
tributed cocaine base, to different persons, on discrete occasions sepa-
rated by an unexplained twelve-month interval, obtained from
different suppliers, in vastly different amounts, and by varying meth-
ods. Both temporal proximity and regularity are absent, and there is
only the most general similarity between Lawson's two offenses.
Because I believe that the evidence is insufficient to support a conclu-
sion that Lawson's 1994 and 1995 offenses were part of the same
course of conduct, I would vacate Lawson's sentence and remand for
resentencing.

                    12
