                                UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                No. 08-5225


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

WAYNE D. THOMPSON, a/k/a Buck Naked, a/k/a Wayne Donnell
Thompson,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (3:08-cr-00309-RLW-1)


Submitted:    August 31, 2009                 Decided:   November 30, 2009


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


Affirmed by unpublished per curiam opinion.


Mark Diamond, Richmond, Virginia, for Appellant.        Dana J.
Boente, Acting United States Attorney, Angela Mastandrea-Miller,
Assistant United States Attorney, Richmond, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Wayne D. Thompson appeals his conviction after a jury

trial    of    one    count       of    possession           with    intent       to   distribute

cocaine base within 1000 feet of a public school, in violation

of 21 U.S.C. §§ 841(a), 860 (2006), and his 300-month sentence.

We affirm.

              On appeal, Thompson first argues that his waiver of

counsel       and     election         to    proceed          pro    se     was    involuntary,

unknowing,      and       unintelligent,               and    that    the       district    court

compounded      its       error    by       denying      Thompson         the     assistance    of

stand-by counsel.               The Sixth Amendment guarantees not only the

right to be represented by counsel but also the right to self-

representation.               Faretta       v.     California,        422       U.S.    806,    819

(1975).       The decision to represent oneself must be knowing and

intelligent.              Id.    at     835.           Courts       must     entertain      every

reasonable presumption against waiver of counsel.                                      Brewer v.

Williams, 430 U.S. 387, 404 (1977).                           The record must show that

the   waiver        was   voluntary,         knowing,         and    intelligent.          United

States    v.        Gallop,       838       F.2d       105,     110       (4th     Cir.    1988).

Determination of a waiver of the right to counsel is a question

of law to be reviewed de novo.                         United States v. Singleton, 107

F.3d 1091, 1097 n.3 (4th Cir. 1997).

              While       a   trial     court      must       determine      if    a   waiver   of

counsel is knowing and intelligent, no particular interrogation

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of the defendant is required, so long as the court warns the

defendant of the dangers of self-representation so that “‘his

choice is made with his eyes open.’”                  United States v. King, 582

F.2d   888,    890   (4th    Cir.     1978)   (citations      omitted);   see     also

Singleton, 107 F.3d at 1097-98 (court must consider record as a

whole, including the defendant’s background, capabilities, and

understanding        of    the      dangers     and    disadvantages      of    self-

representation).          “The determination of whether there has been

an intelligent waiver of the right to counsel must depend, in

each   case,      upon      the      particular       facts    and    circumstances

surrounding that case, including the background, experience, and

conduct of the accused.”              Johnson v. Zerbst, 304 U.S. 458, 464

(1938).

              Our review of the record leads us to conclude that the

district court did not err in granting Thompson’s request to

waive counsel and proceed pro se.                     Nor did the court err in

limiting      stand-by      counsel’s    participation         during   the     trial.

Although a district court may allow “hybrid” representation in

which the attorney and defendant both participate actively in

the trial, declining to permit this type of representation does

not violate a defendant’s constitutional rights.                        McKaskle v.

Wiggins, 465 U.S. 168, 183 (1984).

              Thompson       next      argues     that        the    evidence      was

insufficient to establish that his crime occurred within 1000

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feet of a school.          A defendant challenging the sufficiency of

the evidence faces a heavy burden.                    United States v. Beidler,

110 F.3d 1064, 1067 (4th Cir. 1997).                    “[A]n appellate court’s

reversal of a conviction on grounds of insufficient evidence

should be confined to cases where the prosecution’s failure is

clear.”     United States v. Jones, 735 F.2d 785, 791 (4th Cir.

1984) (internal quotation marks omitted).

            A jury’s verdict must be upheld on appeal if there is

substantial evidence in the record to support it.                          Glasser v.

United States, 315 U.S. 60, 80 (1942).                   In determining whether

the evidence in the record is substantial, this court views the

evidence   in     the   light     most    favorable    to     the    government,    and

inquires whether there is evidence that a reasonable finder of

fact    could   accept     as     adequate     and    sufficient      to   support   a

conclusion of a defendant’s guilt beyond a reasonable doubt.

United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en

banc).     In   evaluating        the    sufficiency    of     the    evidence,    this

court    does   not     review    the    credibility     of    the    witnesses    and

assumes    that    the     jury    resolved      all    contradictions        in    the

testimony in favor of the government.                  United States v. Romer,

148 F.3d 359, 364 (4th Cir. 1998).                   We have reviewed the trial

transcript and conclude that the evidence was sufficient.

            Thompson next argues that he was deprived of a fair

trial due to the clear bias of the district court against him.

                                           4
He asserts that the court did not allow him to cross-examine

witnesses, present his case, or testify.               A judge must recuse

himself in cases where the party seeking recusal files a timely

and sufficient affidavit stating the judge has a personal bias

or   prejudice      either   against   the   affiant   or   in   favor   of   any

adverse party, 28 U.S.C. § 144 (2006), or where his impartiality

might reasonably be questioned.              28 U.S.C. § 455 (2006).          The

alleged bias must stem from an extrajudicial source.                 Liteky v.

United States, 510 U.S. 540, 555 (1994); Shaw v. Martin, 733

F.2d 304, 308 (4th Cir. 1984).

              Thompson did not file a motion seeking recusal of the

trial judge or the affidavit required by § 144, and we conclude

that    he    has   failed   to   demonstrate    any   grounds    for    recusal

because the record demonstrates that “[t]he district judge did

nothing even remotely inappropriate at any point during this

case.”       United States v. Gordon, 61 F.3d 263, 268 (4th Cir.

1995).       Moreover, the court properly exercised its discretion in

ruling that, if Thompson elected to testify, the court would ask

questions of him and would not allow him to testify in narrative

form.

              Thompson also argues that the district court failed to

adequately consider his motion to exclude photographs stored in

his cell phone.        He argues that he was entitled to prior notice

and the opportunity to examine the photographs pursuant to Fed.

                                        5
R.   Crim.      P.    16(a)(1)(E).          We    review      the    district     court’s

evidentiary ruling for abuse of discretion.                          United States v.

Perkins, 470 F.3d 150, 155 (4th Cir. 2006).                        The record does not

reflect any request for discovery filed by Thompson, which is a

necessary predicate to the government’s obligations under Rule

16(a)(1)(E).          Moreover, the government’s exhibit list included

the cell phone as an item to be introduced at trial.                                   Thus,

Thompson was on notice that the cell phone would be introduced

into    evidence,      and     his    failure     to   file    a    discovery     request

relieved       the    government      of    the     obligation       to   allow   him     to

inspect the phone and its contents prior to trial.                          The district

court    did    not    abuse    its    discretion       in    overruling      Thompson’s

objection.

               Thompson’s final argument is that the district court

erred at sentencing.            He first asserts that the court failed to

specify the offense level and criminal history category it used

to calculate his sentence.              This argument is without merit.                  The

sentencing       hearing     included       an    extensive        discussion     of    the

career   offender       sentencing         range,    and     the    court   specifically

noted the range that would have applied if Thompson were not a

career offender.          In granting Thompson’s motion for a variance

sentence, the court elected to impose a non-Guidelines sentence

that was not linked to an offense level and criminal history

category.

                                             6
            Thompson next asserts that the district court failed

to adequately explain how it applied the 18 U.S.C. § 3553(a)

(2006) factors.         “When rendering a sentence, the district court

‘must   make    an    individualized       assessment     based    on    the   facts

presented.’”         United States v. Carter, 564 F.3d 325, 328 (4th

Cir. 2009) (quoting Gall v. United States, 552 U.S. 38, 128 S.

Ct. 586, 597 (2007)).

     Moreover, the district court must “state in open
     court” the particular reasons supporting its chosen
     sentence.   18 U.S.C. § 3553(c) (2006).  In doing so,
     “[t]he sentencing judge should set forth enough to
     satisfy the appellate court that he has considered the
     parties’ arguments and has a reasoned basis for
     exercising his own legal decisionmaking authority.”
     Rita v. United States, 551 U.S. 338, 127 S. Ct. 2456,
     2468 (2007).

Carter,   564    F.3d    at    328.   Thompson’s       assertion    of    error   is

without   merit.         The    district       court   discussed   the    relevant

§ 3553(a) factors, the purposes of sentencing, and the enhanced

sentencing structure for career offenders.                The district court’s

explanation of its sentence clearly reflects the individualized

assessment required by Carter.

            Thompson’s final assertion of sentencing error is that

the court “said it was going to sentence Mr. Thompson to two

times the statutory minimum sentence of ten years, or 240 months

in prison, and then sentenced Thompson to 300 months in jail,

instead.”       This argument is without merit, as it is clearly




                                           7
based    on    a    misinterpretation       of   the    court’s     statements    in

explaining its sentence.

              Accordingly,       we   affirm     Thompson’s        conviction    and

sentence.      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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