UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 96-4855

HENRY HYMAN,
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-95-27-ALL)

Argued: March 6, 1998

Decided: April 27, 1998

Before MOTZ, Circuit Judge, PHILLIPS, Senior Circuit Judge,
and KEELEY, United States District Judge for the
Northern District of West Virginia,
sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Hunt Lee Charach, Federal Public Defender, Charleston,
West Virginia, for Appellant. Nancy Spodick Healey, Assistant
United States Attorney, Charlottesville, Virginia, for Appellee. ON
BRIEF: Robert P. Crouch, United States Attorney, Charlottesville,
Viginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

A jury convicted Henry Hyman of two counts of possession with
intent to distribute cocaine base in violation of 21 U.S.C.A.
§ 841(a)(1) (West 1981). On appeal, Hyman challenges his conviction
and sentence of 192 months imprisonment and 5 years supervised
release. Hyman argues, inter alia, that the district court erred in deny-
ing him the opportunity to proceed pro se at the sentencing hearing,
in not verifying that he had discussed the presentence report with
counsel, and in its adoption of the presentence report. Finding no
reversible error, we affirm.

I.

On February 10, 1995, Hyman applied for credit to purchase a
$20,000 Cadillac Seville automobile from a car dealer. In so doing,
Hyman left personal identification information with the car dealer.
The dealer found the identification to be suspicious and contacted the
Charlottesville police. The police then obtained information indicat-
ing that Hyman was wanted on an outstanding warrant in New York.
Relying on this information, the police had the dealership lure Hyman
back to the car lot based on the premise that his credit application had
been approved. The police subsequently arrested Hyman based on the
New York warrant. During the search incident to his arrest, the police
seized 23.97 grams of cocaine base and $2,857 in cash from Hyman's
person.

Two weeks later, on February 25, 1995, the police seized evidence
in an unrelated search of a Charlottesville apartment in which Hyman
resided with several other individuals. Pursuant to a search warrant,
the police seized 14.76 grams of cocaine base from the battery com-
partment of a portable television located in the closet of a bedroom
where the police found Hyman and his personal belongings. During

                    2
the course of that search, the police also found $1,022 in cash on
Hyman's person, $100 of which was marked money a police infor-
mant had used earlier that same day to make a crack cocaine purchase
from another individual who resided in the same apartment.

Based on the February 10 and 25 incidents, the Government
charged Hyman with two counts of possession with intent to distrib-
ute cocaine base in violation of 21 U.S.C.A. § 841(a)(1) (West 1981).
The district court denied Hyman's motion to suppress the evidence
seized from his person during both of the arrests. Trial began on June
18, 1996, and three days later a jury convicted Hyman on both counts.
The district court then ordered the preparation of a presentence report
and scheduled sentencing for October 1996.

Over the course of the proceedings, three different attorneys repre-
sented Hyman. His first appointed attorney, Steven Rosenfield, with-
drew early in the proceedings because of a disagreement over the
appropriate approach to take in the case. Hyman then retained his own
attorney, Billy Ponds, who represented Hyman at the pretrial suppres-
sion hearing but failed to appear for trial due to illness. Citing irrecon-
cilable differences, Ponds then asked to withdraw as counsel. The
district court granted the motion over Hyman's objection. Hyman
would not allow Ponds' co-counsel to represent him and insisted that
he would represent himself before allowing such representation.
However, when the court questioned Hyman about representing him-
self, Hyman indicated that he did not want to do so.

The district court then appointed Onzlee Ware, who represented
Hyman through trial and sentencing. Several times during the trial,
Hyman expressed dissatisfaction with Ware's performance. Occasion-
ally, Hyman stated his belief that Ware was in a conspiracy with the
government. In addition, when the court denied his motion to call the
government's case agent as a witness, Hyman described the proceed-
ings as a "lynching." As a result of this comment, the court held
Hyman in summary contempt and sentenced him to imprisonment of
120 days.

After the trial's guilt phase, Hyman and Ware had no verbal com-
munication until the sentencing hearing. Ware sent Hyman several
letters, including a copy of the presentence report, and asked Hyman

                     3
to review the report and to respond with any objections to it. How-
ever, Hyman never responded to any of Ware's correspondence.
Instead, Hyman wrote a letter to the district court, requesting that it
dismiss Ware as counsel. The district court denied the request.

At the beginning of the sentencing hearing, the court asked both
Ware and Hyman if they had reviewed the presentence report, and
they both responded affirmatively. Ware did not prepare any objec-
tions to the presentence report but informed the court that Hyman
might raise some issues. During the sentencing hearing, the court per-
mitted Hyman to make any objections he had to the presentence
report. Hyman then proceeded to object to the report's use of prior
convictions of burglary and manslaughter in computing his criminal
history category. He claimed that he did not commit the offenses and
pointed out that they were committed by individuals with different
names. The court overruled Hyman's objections based on evidence
presented by the probation officer that Hyman had assumed aliases
and was, in fact, the individual convicted of those other charges.

Hyman's final objection pertained to the conversion of $3,879
found on him during his arrests into an additional 19.93 grams of
cocaine base for purposes of sentencing. This conversion was based
on trial testimony from a DEA agent who testified that one-tenth of
a gram of cocaine sold for approximately $20 in the Charlottesville
area. The court rejected Hyman's objections, adopted the findings in
the presentence report, and sentenced Hyman to 192 months impris-
onment and 5 years supervised release.

II.

Hyman initially contends that the district court erred in not permit-
ting him to represent himself at the sentencing hearing. Hyman argues
that in denying his written request to represent himself pro se in the
sentencing phase of his case, the district court violated his Sixth
Amendment right to self representation.

In order to invoke one's right to proceed pro se , a defendant is
required to make a clear and unequivocal invocation of this right. See
Fields v. Murray, 49 F.3d 1024, 1029 (4th Cir. 1994) (en banc). In
this instance, the record does not indicate that Hyman made such an

                     4
unequivocal statement. To the contrary, Hyman stated that he would
"like counsel of my own choosing;" nowhere in his letter to the court
did Hyman state explicitly that he wanted to represent himself.
Despite the fact that Hyman's letter to the court did not clearly state
that he wanted to proceed pro se, the district court seemed to assume
he requested this relief and ruled that "defendant's motion to proceed
pro se at this stage in the proceedings . . . is denied." Thus, for pur-
poses of this appeal we, too, assume that Hyman had made the requi-
site unequivocal request to proceed pro se.

Although the Supreme Court has concluded that a defendant has a
Sixth Amendment right of self-representation, this right is not abso-
lute. See Faretta v. California, 422 U.S. 806 (1975). Moreover, once
a defendant has proceeded to trial with counsel, we have consistently
held that the right to proceed pro se lies within the discretion of the
court. See, e.g., Bassette v. Thompson, 915 F.2d 932, 941-42 (4th Cir.
1990); United States v. Lawrence, 605 F.2d 1321 (4th Cir. 1979),
cert. denied, 444 U.S. 1084 (1980); United States v. Dunlap, 577 F.2d
867 (4th Cir. 1977), cert. denied, 439 U.S. 858 (1978); cf. Faretta,
422 U.S. at 813 (the defendant attempted to proceed pro se before
trial began).

Hyman does not dispute that his request to proceed pro se (if he
did request this) occurred prior to the sentencing phase, after he had
been represented by counsel throughout the guilt phase. In rejecting
this request, the district court noted that Hyman had been represented
by multiple lawyers during the proceedings and stated that his then-
current counsel, Ware, had "provided excellent and professional rep-
resentation." In addition, the court permitted Hyman to make his own
objections and comments to the court at the sentencing hearing. In
Bassette, we held that the district court had not abused its discretion
when it refused to permit a defendant, who had been represented by
counsel during the guilt phase, to proceed pro se at sentencing.
Bassette, 915 F.2d at 941-42. In view of the fact that the trial court
in Bassette provided far less rationale for its holding than the district
court here, we cannot conclude that the court's denial of Hyman's
request to represent himself at the sentencing phase constituted an
abuse of discretion.

                     5
III.

Hyman challenges his sentence on several grounds. We review
legal issues with respect to the sentence de novo. United States v.
Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989). The district court's
factual findings, however, are reviewed under a"clearly erroneous"
standard. United States v. Strandquist, 993 F.2d 395, 401 (4th Cir.
1993). We accord "due deference" to the district court's application
of the Sentencing Guidelines to the facts. Daughtrey, 874 F.2d at 217.

A.

Hyman contends that the district court committed reversible error
at sentencing because it failed to comply with Rule 32 of the Federal
Rules of Criminal Procedure by not verifying that he and his attorney
had not only read but also discussed the presentence report. Fed. R.
Cr. P. 32.

Because this argument was never made before the district court,
our review is for plain error. See United States v. Lockhart, 58 F.3d
86, 89 (4th Cir. 1995) (citing United States v. Olano, 507 U.S. 725
(1993)). Before vacating this sentence we must determine whether:
1) an error was committed; 2) the error was plain; and 3) the error
affected Hyman's substantial rights. See Olano , 507 U.S. at 731. In
addition, if these requirements are satisfied, we then must determine
whether the error is one that "seriously affect[s] the fairness, integrity
or public reputation of judicial proceedings." Lockhart, 58 F.3d at 88
(quoting Olano, 507 U.S. at 731).

Rule 32(c)(3)(A) provides that, prior to imposing a sentence, "the
court must . . . verify that the defendant and defendant's counsel have
read and discussed the presentence report." Fed. R. Cr. P. 32(c)(3)(A).
We have interpreted this rule to require that there be "evidence in the
record from which one could reasonably infer" that defendant and
counsel have read and discussed the report. See United States v.
Miller, 849 F.2d 896, 897 (4th Cir. 1988).

In this case, the district court initially inquired whether "Mr.
Hyman, together with both Counsel, had full opportunity to review

                     6
the pre-sentence report." Hyman and his counsel responded affirma-
tively. Without more, this question and answer might be read to sat-
isfy the requirements to Rule 32(c)(3)(A). However, when considered
with Ware's later statement that he had forwarded the report to
Hyman and asked for, but never received, a response from Hyman,
it is clear that Hyman and his counsel had not "discussed" the pre-
sentence report. Thus, the record indicates that the district court veri-
fied that both Hyman and his attorney had read the presentence
report; but the court had knowledge that Hyman and his attorney had
not discussed the report.

However, regardless of the completeness of the district court's
inquiry, clearly the reason Hyman and his counsel did not communi-
cate with respect to the presentence report was due solely to Hyman's
own actions. At sentencing, Hyman's attorney told the court that he
had sent Hyman the presentence report and requested correspondence.
In fact, the record reflects that Ware sent Hyman"several letters [in]
trying to correspond with him." Thus, the court was on notice that
Hyman was responsible for the fact that he and Ware had not "dis-
cussed" the report. As we have stated in other contexts, a defendant
cannot create a lack of communication between himself and his coun-
sel and then rely on this lack of communication. See United States v.
Morsley, 64 F.3d 907, 918 (4th Cir. 1995) (denying defendant's
request for substitute counsel because "any difficulties [defendant]
was experiencing were due to his own belligerence").

Furthermore, even if Hyman had not been responsible for the lack
of communication with his counsel, resentencing would not be
required here. As we held in Lockhart, if the defendant fails to show
that the error would have affected his sentence then remanding for
resentencing "would be a fruitless exercise." Lockhart, 58 F.3d 86, 89
(4th Cir. 1991) (quoting Lewis, 10 F.3d at 1092). In this case, the
court permitted Hyman, without his counsel, to make any arguments
that he wanted with respect to the presentence report. In fact, Hyman
raised several issues that the court considered before imposing sen-
tence. Based on the information that it was Hyman's own decision not
to communicate with his attorney, the district court attempted to
ensure that Hyman received a fair sentencing hearing by permitting
him to make his own objections to the presentence report. Thus, as

                     7
in Lockhart, Hyman "has failed to show that the [Rule 32(c)(3)(A)]
error would have affected his sentence." 58 F.3d at 89.

In sum, the district court did not plainly err in failing to verify that
Hyman and his counsel had discussed the presentence report.

B.

When the district court sentenced Hyman, it adopted the presen-
tence report's recommendation that the money found on Hyman be
converted into its cocaine base equivalent under the§ 2D1.4 of the
Sentencing Guidelines. This section permits the sentencing judge to
approximate the quantity of drugs involved if the amount of a drug
seized does not reflect the scale of the offense. U.S.S.G. § 2D1.4,
Note 2. We have previously approved similar conversions of seized
currency into its drug equivalent where there was evidence of a con-
nection between the money and drug transactions. See United States
v. Hicks, 948 F.2d 877, 881-83 (4th Cir. 1991) (there was "ample evi-
dence on which the district court could have found that all of the
money was the proceeds of drug transactions"). Nevertheless, Hyman
asserts the district court erred when it converted the money found to
its drug equivalent in this case.

First, Hyman contends that the district court did not make a finding
on his objection during the sentencing hearing as to the relevant drug
weight used in determining the sentencing guideline calculations.
Specifically, Hyman claims that the court violated Rule 32(c)(1) of
the Federal Rules of Criminal Procedure and § 6A1.3(a) of the Sen-
tencing Guidelines when it did not make express findings regarding
the conversion of money to drugs. Fed. R. Cr. P. 32(c)(1); U.S.S.G.
§ 6A1.3(a). But the court explicitly adopted the pre-sentence report;
and we have held that the adoption of a pre-sentence report satisfied
the need for findings "when the context of the ruling makes clear that
the district court intended [by the adoption] to rule on each of the
alleged factual inaccuracies." United States v. Walker, 293d 908, 911
(4th Cir. 1994). Thus, we clarified that "a sentencing court need not
articulate a finding as to disputed factual allegations with minute
specificity." Rather, "[s]imply adopting the [pre-sentencing report's]
findings in toto is sufficient." Id.

                     8
Hyman also maintains that the evidence fails to support the find-
ings the court adopted from the presentence report. We note that nei-
ther Hyman nor his attorney ever made a clear objection to the
conversion of money to drugs in the presentence report. Indeed,
Hyman's counsel never made any objection at the sentencing hearing
concerning the conversion of money to drugs. As for Hyman himself,
during the course of the sentencing hearing, the court informed him
that it was "going to throw the reins over the dashboard. You can go
as long as you want. Take off and tell me everything you want to tell
me right now." After making several objections to the presentence
report without mentioning the conversion argument, Hyman told the
court that he was "finished." Only later, when the court was ready to
pronounce sentence, did Hyman for the first time raise a question
about the money found on his person; he asked, "how does it get to
be criminal?" After the court responded that it was "not going to get
into that," Hyman acknowledged that he was ready for his sentence
to be pronounced.

Assuming that this constitutes an objection to the conversion, the
record indicates that the district court did not err in converting the
money to drugs. At the time of Hyman's arrest on February 10, 1995,
the police found $2,857 on Hyman's person along with approximately
24 grams of cocaine base. The evidence seized in the unrelated Febru-
ary 25 search of the apartment in which Hyman resided, resulted in
the police finding $1,022 on Hyman's person, $100 of which was
marked money from a police informant used to make a cocaine pur-
chase from another individual who also resided in the same apart-
ment. An agent testified that a gram of cocaine base would sell for
approximately $20 in the Charlottesville area; the presentence report
findings converting the entire $3,879 into its drug equivalent.

Hyman maintains that the court had no basis for converting the
money into its drug equivalent; he asserts that he was employed and
had a bank account that constituted the source of this money. On the
credit application Hyman filled out at the car dealership, when he
sought to purchase the $20,000 Cadillac Seville, Hyman provided his
address and stated that he earned an annual salary of $47,500 as a
marketing manager and had worked for the same employer for six
years. However, at trial the Government severely impeached his
account. Hyman ultimately conceded in trial testimony that the

                    9
address he provided the car dealer was false, that he did not know his
salary, and that he had worked for his most recent employer as "an
assistant to an insurance broker" for less than a year, and that he could
not remember if he had paid any income taxes. Moreover, Hyman tes-
tified that he could not recall the city in which the branch of his bank
was located. Finally, the district court noted that Hyman refused to
provide any financial information and employment history to the pro-
bation officer completing the presentence report. This refusal and the
evidence at trial led the court to determine that Hyman was "not in
a position to pay a fine."

Although the above evidence was not abundant, it was sufficient to
sustain the district court's conversion decision as based on the pre-
ponderance of the evidence. Cf. United States v. Terry, 916 F.2d 157,
161 (4th Cir. 1990) ("Without an affirmative showing [by the defen-
dant that] the information is inaccurate, the court is free to adopt the
findings of the presentence report without more specific inquiry or
explanation").

C.

Hyman also argues that the district court erred in adopting the pre-
sentence report's attribution to him of criminal history points for two
prior convictions. We review factual determinations relating to sen-
tencing for clear error. United States v. Blake , 81 F.3d 498, 503 (4th
Cir. 1996).

Hyman's main contention is that the Government did not provide
sufficient evidence that he was, in fact, the person previously con-
victed of the crimes listed in the presentence report. The record, how-
ever, indicates that there was sufficient evidence linking Hyman to
those convictions.

First, the probation officer testified that Hyman, under a different
name, had previously been convicted of burglary in New York and
manslaughter in Washington, D.C. At sentencing, Hyman did not
deny that he had been convicted of manslaughter, but rather main-
tained that the presentence report attributed the wrong date to this
conviction. With respect to the burglary, the probation officer testified
that "[t]here's a cross-reference to Henry Hyman and the other aliases

                    10
that come back identifying him through fingerprint, social security,
date of birth and those types of cross-reference information that's
used by the FBI."

Ultimately, the district court concluded that the probation officer's
testimony and the information from the New York Parole Commis-
sion "appears to be trustworthy," despite Hyman's assertions to the
contrary. The district court did not clearly err in making this determi-
nation.*

IV.

Hyman has filed two lengthy pro se briefs, making numerous addi-
tional arguments on appeal. The Supreme Court has stated that a
defendant "has no absolute right to argue his own appeal or even to
be present in the appellate court." Price v. Johnston, 334 U.S. 266,
285 (1948). In United States v. Gillis, 773 F.2d 549 (4th Cir. 1985),
we permitted the defendant to submit a supplemental pro se brief,
concluding that this provided the defendant with"any `right' he has
to self-representation on appeal." Id. at 560. In Gillis, however, the
defendant had filed a motion to proceed pro se on appeal, and the
court determined that the complexity of the issues warranted the
appointment of counsel. In contrast here, Hyman actively filed a
request for the appointment of appellate counsel because he stated
that he "lack[ed] the legal training to proceed as a pro se litigant."

Nevertheless, we have carefully examined Hyman's pro se argu-
ments and have concluded that they are meritless. His principal con-
tention is that the police officers who arrested him at the car
dealership on February 10, 1995 did not have the requisite probable
_________________________________________________________________
*Hyman also maintains in his formal brief that he should receive a
new trial based on grounds of ineffective assistance of counsel. He does
not dispute, however, that his ineffective assistance claim "is not yet ripe
for review by the Court." Brief of Appellant at 23. We agree with
Hyman's assessment concerning the ripeness of this claim. An ineffec-
tive assistance of counsel claim in this instance should be raised collater-
ally through a petition for habeas corpus rather than on direct appeal. See
United States v. DeFusco, 949 F.2d 114, 120 (4th Cir. 1991), cert.
denied, 503 U.S. 992 (1992).

                     11
cause to do so. Hyman also raised this probable cause issue several
times during the course of trial. This contention ignores patrol officer
Gregory Irwin's testimony that he determined through the credit
information Hyman provided the auto dealership that there was an
outstanding warrant on file in New York for Hyman. Irwin not only
verified this information by computer, but he telephoned New York
to confirm it. The information Irwin received from New York pro-
vided a description of Hyman, including his social security number,
date of birth, height, weight and the fact that Hyman had a scar on
his neck. Prior to arresting Hyman at the dealership, Irwin asked
Hyman several questions, including whether or not he had such a scar
on his neck. Based on the information Irwin received from New York
and from Hyman himself, there is no question that even if Hyman was
not the individual wanted on charges in New York, the arresting offi-
cers had probable cause to arrest him.

V.

For all of these reasons, the judgment of the district court is, in all
respects,

AFFIRMED.

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