UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 92-7585

_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

NORMAN L. HAYMER,

Defendant-Appellant.

_________________________________________________________________

Appeals from the United States District Court for the

Southern District of Mississippi

_________________________________________________________________ (June 30, 1993)

Before POLITZ, Chief Judge, REAVLEY and BARKSDALE, Circuit Judges.

BARKSDALE, Circuit Judge:

Norman L. Hay mer appeals his sentence, contending that his

Sixth Amendment right to counsel was violated by the inclusion of

an uncounseled misdemeanor conviction in calculating his Sentencing

Guidelines criminal history score. We AFFIRM

.

I.

Haymer pleaded guilty to possession with the intent to

distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1). In

the presentence investigation report (PSR), the probation officer

recommended a guideline range of 51 to 63 months imprisonment,

based upon an offense level of 22 and a criminal history category- 2 -

of III. The criminal history score included 2 points for

committing the instant offense while on probation, 1 point for a

1987 convictio n, and 1 point for a 1991 shoplifting conviction.

The latter is the subject of this app eal. The PSR described the

circumstances of that conviction as follows:

Records of the Jackson Police Department indicate

Haymer was arrested on May 22, 1991 and charged

with shoplifting

.... The defendant entered a plea

of guilty to the charge in Jackson Municipal Court

and was ordered to pay a fine of $300 plus court

costs. On November 13, 1991, Haymer was arrested

by the Jackson Pol ice Department and charged with

contemp t of court for failing to pay the imposed

fine and court costs. Disposition of the contempt

charge has not been received as of this writing,

but according to the defendant, he opted to perform

18 days of work at the Hinds County Penal Farm in

lieu of paying the fine and court costs.

Although he did not file written objections to the PSR, Haymer

objected, at the sentencing hearing, to the inclusion of the

shoplifting conviction in his criminal history score, on the ground

that he was not represented by counsel and had served 18 to 19 days

in jail. Exclusion of that conviction would have lowered his

criminal history score, resulting in a guideline range of 46 to 57,

instead of 51 to 63, months.

After hearing testimony, the district c ourt found that the

original sentence for shoplifting consisted only o f a fine, and

that Haymer's incarceration resulted either from contempt of court

for failure to pay the fine, or from Haymer's decision to

substitute incarceration in lieu of paying it. It also found that

Haymer, who was an attorney in Louisiana from 1976-1986, but was

disbarred in 1990, acted as his own counsel on the shoplifting- 3 -

charge. Haymer was sentenced to 51 months imprisonment and a fiveyear term of supervised relea se and ordered to pay a $50 special

assessment and $1,000 fine.

II.

Haymer's sole contention is that his sentence was imposed in

violation of law, or as a result of an incorrect application of the

Guidelines, because the uncounseled misdemeanor conviction was

included in the calculation of his criminal history score.

We "will uphold a sentence unless it was imposed in violation

of law; imposed as a result of an incorrect a pplication of the

sentencing guidelines; or outside the range of the applicable

sentencing guideline and is unreasonable." U nited St ates v.

Howard

, 991 F.2d 195, 199 (5th Cir. 1993). "[W]hether a prior

conviction is covered under the sentencing guidelines is ...

reviewed de novo

, while factual matters concerning th e prior

conviction are reviewed for clear error." Id

.

In Scott v. Illinois , 440 U.S. 367 (1979), the Supreme Court

held that an indigent criminal defendant may not "be sentenced to

a term of imprisonment " unless the government has afforded him the

right to assistance of counsel guaranteed by the Sixth Amendment.

Id

. at 37 3, 374 (emphasis added). Absent a valid waiver of this

right, "[i]f an uncounseled defendant is sentenced to prison , the

conviction itself is unconstitutional." U nited States v. Eckford

,

910 F.2d 216, 218 (5th Cir. 1990) (emphasis added); United States

v. Follin

, 979 F.2d 369, 376 (5th Cir. 1992). But, the Sixth

Amendment does not require the States to provide counsel in- 4 -

crimin al cases in which the defendant is not sentenced to

imprisonment. I d

. Accordingly, uncounseled misdemeanor

convictions for which no term of imprisonment is impo sed are

con stitutionally valid, may be introduced into evidence at the

punishmen t phase of a trial for a subsequent offense, and may be

used to calculate a defendant's Guidelines criminal history score.

Eckford

, 910 F.2d at 220-21; Wilson v. Estelle

, 625 F.2d 1158, 1159

(5th Cir. Unit A 1980), cert. denied , 451 U.S. 912 (1981).

Haymer seeks shelter under Baldasar v. Illinois

, 446 U.S. 222

(1980); but our court has repeatedly interpreted that case only to

prohibit the use of a prior uncounseled misdemeanor conviction

"under an enhanced penalty statute to convert a sub sequent

misdemeanor into a felony with a prison term." W ilson v. Estelle

,

625 F.2d at 1159 n.1; see also Eckford

, 910 F.2d at 220. Likewise,

we have repeatedly held that Baldasar does not prohibit the use of

an uncounseled misdemeanor conviction to determine a crimin a l

history category for a crime that is itself a felony. F ollin

, 979

F.2d at 376 & n.8. Needless to say, possession with the intent to

distribute crack cocaine is a fel ony; therefore, B aldasar is

inapplicable.

C o nsistent with these cases, the Guidelines provide that

"uncounseled misdemeanor sentences where imprisonment was not

imposed" are to be included in calculating the criminal history

score. U.S.S.G. § 4A1.2, comment. (backg'd) (1991). The

commentary to that section provid es that "[a] sentence which

specifies a fine or other non-incarcerative disposition as an- 5 -

alternative t o a term of imprisonment ... is treated as a nonimprisonment sentence." U.S.S.G. § 4A1.2, comment. (n.4).

Application note 6 to § 4A1.2 states that "sentences resulting from

convictions that a defendant shows to have been previously ruled

constitutionally invalid are not to be counted" in computing a

defendant's criminal history score. U.S.S.G. § 4A1.2, comment.

(n.6) (1991). Application note 6 "allows a district court, in its

discretion, to inquire into the validity of prior con victions at

sentencing hearings." U nited States v. Canales , 960 F.2d 1311,

1315 (5th Cir. 1992).

Haymer presented no evidence that his shoplifting conviction

had been previously ruled consti tutionally invalid, but instead

sou ght to collaterally attack it at sentencing. The district

court, in the exercise of its discretion, entertained the

challenge, but found that H aymer's sentence for shoplifting

consisted only of a fine, and that his incarceration resulted

either from contempt of court for failure to pay the fine, or from

Haymer's decision to substitute incarceration in lieu of paying it.

Based on those findings, the district c ourt held that the

conviction wa s not constitutionally invalid. Our task is to

determine whether the district court's factual findings, regarding

the circumstances of Haymer's shoplifting conviction and subsequent

incarceration, are clearly erroneous.

In his testimony at the sentencing hearing, Haymer described

the circumstances of his shoplifting conviction as follows: I was

arres

ted

and I- 6 - made

bond.

I

went

back

t o

court

. At

the

time

I was

worki

ng.

S o

they

...

accus

ed me

o f

steal

ing a

pack

o f

cigar

ettes

. So

I

told

the

judge

I

didn'

t. I

was

i n

his

chamb

er.

I

wasn'

t in

court

.... I

thoug

ht it

would

be a

low

fine

o r

whate- 7 - ver.

But

h e

told

m e

he'd

accep

t the

guilt

y

plea

and

give

me a

fine.

I

thoug

h t

the

fine

would

b e

proba

bly

$50,

you

know,

for a

pack

o f

cigar

ettes

; and

h e

fined

m e

300-

andsomet

hing

dolla

rs.

I

didn'

t

have

the

money

, so

event

ually

they- 8 - sent

me to

jail

t o

work

i t

off.

....

I wasn't advi sed that I had a right to a

lawyer at the time or I would have chose to have a

lawyer, if I knew that that particular thing could

come back and haunt me at a later date. Or if I

could have got some jail time. I didn't know I was

-- you know, because he told me it was going to be

a fine.

Defense counsel, relying on Balda sar and S cott

, argued that,

because Haymer had served 18 or 19 days in jail "as a result of the

convi ction and his failure to pay," the conviction was

unconstitutional, and could not be used to calculate the criminal

history score.

The court then questioned the probation officer, who testified

as follows:

Mr. Haymer was charged wi th shoplifting. He was

convicted and fined $300. There was no term of

imprisonment imposed, no term suspended, nothing.

He failed to pay the fine. They issued a bench

warrant for contempt for failing to pa y the fine.

According to Mr. Haymer, he opted to do or perform

18 days of work at the penal farm instead of paying

the fine. In our opinion it appears to us that it

was not a mandatory term of imprisonment imposed as

a result of the conviction. It was an option taken

on his pa rt. And I will point out to Your Honor

that I believe Mr. Haymer is -- he is an attorney.

We're not dealing with someone who is ignorant of

the law or his rights.

THE COURT: The prison term came -- the time

that was set forth in the sentence came as a result

of a contempt --

[PROBATION OFFICER]: That's correct.- 9 - THE COURT: -- rather than the crime itself.

[PROBATION OFFICER]: That's correct.

Defense counsel responded that Haymer's incarceration was "a direct

result of the crime itself. What Mr. Haymer did was work off this

fine."

The district court then asked the probation officer if she had

any documentation showing that the jail time resulted from the

contempt charge, rather than the initial sentence for shoplifting.

She responded that she did not have any documen tation as to the

contempt charge, because the records of the Jackson municipal court

were "awful", but that "[t]he disposition as to the contempt and

the 18 days or 19 days on the pe nal farm came straight from Mr.

Haymer." She testified that she did have documentation as to the

original sentence imposed, which was a fine only. (That

documentation was not introduced into evidence at the hearing, and

is not part of the record.)

Haymer then testified:

[A]t the time I was sentenced I was ordered to pay

$342. If I had told the judge at that time I did

not have $342 to pay, he would have sentenced me to

jail. I told him I would see if I could raise

$342, which he gave me about a week or two weeks or

whatever. I couldn't come up with the money. I

went to the penal farm because I couldn't pay the

fine of $342, not because I was in contempt but

because I didn't have the fine money to pay. Even

after I was arrested, they asked if I could pay 50

or 10 0, $200, they would let me out, you know,

until I could get the balance. I told them I

didn't have that money. Therefore I -- they sent

me to

-- and it wasn't voluntary. It was mandatory

that I go and work it off since I couldn't pay it.- 10 -

Based on this conflicting testimony, the district court found:

[ T]he original sentence was one that required h i m to pay a fine and ... his subsequent incarceration

came as a result of either his failure to pay the

fine and therefore his arrest for contempt or some

other situation wherein he decided to substitute

time in lieu of paying the fine tha t was imposed

upon him.

The district court did not clearly err in finding that

Haymer's sentence for shoplifting consisted only of a fine. That

finding was based on the uncontradicted testimony of the probation

officer, and Haymer does not challenge it. Instead, Haymer

contends that, because he was incarcerated for failure to pay the

fine to which he was sentenced for shoplifting, his conviction for

shoplifting is constit utionally invalid. We disagree. The

distri ct court found that Haymer's incarceration did not result

from his shoplifting conviction, but from a contempt charge for

failure to pay the fine, or because he opted to serve time in lieu

of paying it. The evidence at the sentencing hearing amply

supports that finding; it is not clearly erroneous.

Because Haymer was not "sentenced to a term of imprisonment "

for shoplifting, his uncounseled conviction is not

u nconstitutional. S cott

, 440 U.S. at 374 (emphasis add ed).

According ly, the conviction was properly included in calculating

his criminal history score. Haymer was subsequently incarcerated

only because he failed to pay the fine. Regardless of whether the

incarceration was based on a contempt charge or his choice to serve

time in lieu of t h e fine, it does not invalidate his prior

shoplifting conviction, for which the only sentence was a fine. We* It is unnecessary for us to address the district court's

alternative finding that, because Haymer was an attor ney who had

practiced law for ten years, he "knew full well that he had the

right to counsel" and "represented himself".

** Smith v. Collins , 964 F.2d 483 (5th Cir. 1992).

- 11 - stress that the constitutionality of any subsequent contempt charge

resulting in incarceration is not at issue, because it was not used

to calculate Haymer's criminal history score. *

III.

For the foregoing reasons, the sentence is

AFFIRMED

.

POLITZ, Chief Judge, dissenting:

The majority suggests that Haymer went to a penal farm of his

own accord or for contempt as a result of his failure to pay a

fine. Apart from the speculation of a probation officer, I find no

evidence in the record of either and, in any event, perceive no

controlling significance in those conclusions, absent evidence that

the punishment ultimately assessed was independent o f the

conviction we now review. Accordingly, I respectfully dissent.

The sixth amendment provides: "In all criminal prosecutions,

the accused shall have the right

. . . to have the Assist ance of

Counsel for his defence." That is an important right. Indeed, the

Supreme Court has long recognized that it is a fundamental aspect

of a fair trial, the denial of which strongly implicates the

reliability of the fact-finding process. ** This constitutional*** Gideon v. Wainwright , 372 U.S. 335 (1963).

  446 U.S. 222 (1980).

** *** 407 U.S. 25 (1972). imperative applies to the states through the due process clause of

the fourteenth amendment. ***

The majority prudently pretermits review of the d i strict

court's conclusion that Haymer waived counsel and represented

himself in his 1991 prosecution. There is no evidence of either.

Likewise, there is no evidence that Haymer wa s sent to the Hinds

County Penal Farm for conduct discrete from his theft of a pack of

cigarettes. The only thing the record shows is that Haymer

admitted stealing a pack of cigarettes from a grocery store, pled

guilty, was unable to pay a fine and, according to the completely

inadequate state court records, somehow found his way to the county

penal farm for 18 or 19 days.

The question before us is not whether a valid uncounseled

misdemeanor conviction is being used for a constitutionally invalid

pur pose. Our prior interpretations of the Supreme Court's

plurality opinion in Baldasar v. Illinois * *** limit that challenge

to cases in which a subsequent conviction is being enhanced from a

misdemeanor to a felony. Rather, the question before us is

whether, in light of the punishment imposed, the prior conviction

is itself valid.

In Argersinger v. Hamlin ***** the Supreme Court rejec ted the

argument that petty offenses and misdemeanors are too insignificant

to warrant appoin tment of counsel for indigents. Distinguishing

the right to appointed counsel from the right to trial by jury, the****** Scott v. Illinois

, 44 0 U.S. 367 (1979) (paraphrasing the

holding in Argersinger ).

******* 440 U.S. 367 (1979). S ee also United States v. Eckford , 910

F.2d 216, 218 (5th Cir. 1990) ("If an uncounseled defendant is

sentenced to prison, the conviction itself is unconstitutional.").

******** Scott , 440 U.S. at 373 (quotations omitted).

********* "The judge can preserve the option of a jail sentence only by

offering counsel to any defendant unable to retain counsel on his

own." Argersinger

, 407 U.S. at 42 (Burger, C.J., concurring). The

Court noted that traffic offenses typically do not require counsel.

Such prosecutions would only requ ire appointed counsel where

"imprisonment actually occurs." The court pointed to a study in

Washington as an example and noted that the accused in traffic

court in that state o nly faced the possibility of jail time in

- 13 - Court established a bright-line r ule based on the punishment

ultimately imposed, concluding "that incarceration was so severe a

sanction that it should not be imposed unless an indigent defendant

had been offered appointed counsel." ******

Any doubt about whether t he Court was concerned with the

potential or actual punishment imposed was put to rest in Scott

v.Illinois

. ******* There the Court held that an indigent misdemeanant

could not obtain relief from an uncounseled conviction which,

although it could have, did not ultimately result in incarceration.

The Court was careful to preserve the A rgersinger rule and

summarized its previous holding as follows: "Th e Court in its

[ Argersinger ] opinion repeatedly referred to trials w here an

accused is deprived of his liberty and to a case that leads to

imprisonment even for a brief period." ******** Thus, if an indigent

defendant has been convicted without the assistance of counsel and

without expressly waiving his right to same, incarceration is not

an available punishment. ********* Sending Haymer to jail because hethree scenarios, including cases in which "the convicted individual

was unable to pay the fine imposed." I d. a t 38 n.10 (citing

Junker, The Right to Counsel in Misdemeanor Cases

, 43 Wash. L. Rev.

685, 711 (1968)). S ee also Wang v. Whitworth , 811 F.2d 952, 956

(6th Cir.), cert. denied

, 481 U.S. 1051 (1987); Sweeten v. Sneddon

, 463 F.2d 713, 716 (10th Cir. 1972); Colson v. Joyce , 646 F. Supp.

102 (D. Me. 1986), a ff'd , 816 F.2d 29 (1st Cir. 1987); U nited

States v. Ramirez

, 555 F. Supp. 736 (E.D. Cal. 1983); L inkous v.

Jordan , 401 F. Supp. 1175 (W.D. Va. 1975).

********** Bearden v. Georgia

, 461 U.S. 660 (1983) (state may not

convert fine to prison term absent finding that defendant has not

m ade bona fide effort to pay the fine or that no alte rnative

punishment could serve the state's interests).

*********** Miss. Code Ann. § 99-19-20(2); Cassibry v. State

, 453 So.2d

1298, 1299 (Miss. 1984) ("So lon g as Cassibry is "financially

unable to pay a fine" and the trial court so finds, he may not be

imprisoned, period .") (emphasis in original).

************ Of course, if the prosecution hopes to punish that contempt

with incarc eration, then it must provide counsel at that point.

Ridgway v. Baker

, 720 F.2d 1409 (5th Cir. 1983). The existence of

the right to counsel varies according to the acuity of the

defendant's jeopardy. M empa v. Rhay

, 389 U.S. 128, 134 (1967).

Sentencing is among th ose critical stages of trial during which

counsel's presence is con stitutionally required. I d. Likewise,

when a fine is converted to a prison term a quantum leap in

severity is affected and counsel's availability is imperative. S ee Argersinger

.

- 14 - could not afford the fi ne without first providing him counsel

violated the rule announced in Argersinger and, mor eover, also

violated the due process guarantee ******* *** and controlling state

law. ***********

I do not suggest that during or after the disposition of the

case the defendant is or should be immune from punishment for

contempt. ************ I do suggest, however, that when reviewing the

validity of the underlying conviction we should ask whether there

is a meaningful difference between the punishment for contempt and

punishment for the offense.************* If this were true, then one would expect that the fine

would not be discharged after his time in jail. Again, the record

does not support such a finding. The majority apparently assumes

that the jail time was simply substituted for the fine as punishment.

************** There is no evidence, for example, that Haymer was

disrespectful of the court or brazenly refused to pay the fine

despite being able financially to do so. The evidence indicates to

the contrary; he simply was impecunious and could not afford it.

*************** Of course, this also would be unconstitutional. B earden.

- 15 - The majority assumes from a silent record, as did the district

court, that Haymer must have been sent to jail for contempt as a

result of his failing to pay the fine. The record gives no

indication whatever that this assumed punishment for contempt was

distinc t ************* from his punishment for stealing

cigarettes. ************** Indeed, the government suggested that the

contempt charge was really a vehicle for converting the form of

Haymer's punishment in view of his inability to pay. ***************

Under these circumstances, characterizing the subsequent jail time

as a res ult of contempt rather than the underlying conviction

elevates form over substance.

Ultimately, Haymer's punishment for stealing cigarettes, and

apparently for being too impoverished to afford the fine imposed,

was 18 or 19 days hard labor. The conviction is invalid absent

some indication either that he waived the right to counsel before

that punishment was imposed or that the jail time was for conduct

other than that giving rise to the underlying conviction. I would

no t allow the same conviction to lead to another five months of

incarceration.- 16 -

I respectfully DISSENT.