UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 97-4904

MICHAEL ANTHONY SMITH, SR., a/k/a

Michael A. Smith,

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-96-58)

Submitted: August 31, 1998

Decided: September 16, 1998

Before ERVIN and MICHAEL, Circuit Judges, and

HALL, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Raymond Lee Clarke, Charlottesville, Virginia, for Appellant. Robert

P. Crouch, Jr., United States Attorney, Ray B. Fitzgerald, Jr., Assistant United States Attorney, Charlottesville, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

A jury convicted Michael Anthony Smith of possession with intent

to distribute cocaine base;1 he was sentenced to serve 360 months'

imprisonment. On appeal, Smith challenges the district court's jury

instructions on unreported and unexplained wealth being indicative of

narcotics trafficking. He also contends that the court erroneously

determined his relevant conduct during sentencing by converting the

currency seized upon his arrest to its equivalent in cocaine base. Finding no reversible error, we affirm.

Based on a tip from a confidential informant that Smith was selling

crack cocaine from his residence, local police officers arranged for an

operative to purchase crack cocaine from Smith using marked money.

On three occasions, the operative went to Smith's residence with the

marked money and returned with crack cocaine. Within hours of the

third transaction, officers executed a search warrant for Smith's residence. The search resulted in the recovery of 14.67 grams of crack

cocaine from Smith's pocket and a total of $7170 in cash. The bulk

of seized money ($7042) was found in an upstairs bedroom, while the

remainder was found in Smith's other pocket. Of the money found on

Smith's person, $30 was "marked" money used by the police operative to purchase drugs.

At trial, Smith denied selling cocaine and testified that the seized

currency represented lottery winnings and profits from his business

selling clothes from his home for cash only. Smith presented evidence

from several clerks from neighborhood convenience stores who testified they remembered paying Smith on winning lottery tickets and

witnesses who were acquainted with Smith's clothing business.

Prior to instructing the jury, the Government and defense counsel

participated in the court's instructions conference held in chambers.

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1 See 21 U.S.C. § 841(a)(1) (1994).

 2
Smith's counsel objected to the court instructing the jury on the relevancy of unexplained and unreported wealth, arguing that the seized

currency did not represent "wealth" and was not "unexplained." Notwithstanding, he negotiated a change in the language of the instruction to Smith's favor. At the conclusion of the conference, the court

informed counsel that it would entertain objections after instructing

the jury. Yet when the court finished instructing the jury, Smith's

counsel specifically responded to the court that he had no objections

to the jury charge.

Because Smith's counsel did not object to the instructions after

they were given to the jury, as required by Fed. R. Crim. P. 30, we

must determine if the error has been forfeited or waived. If forfeited,

we review for plain error.2 If the error has been waived, it is not subject to appellate review.3 Here, Smith's counsel had an opportunity to

object to the jury instructions to correct any error or to preserve the

issue for appeal, and he stated he had no objection. We find that such

an "intentional relinquishment or abandonment of a known right"

waives any error based on the jury instructions. 4

Smith also contends that he should not have been held accountable

for both the quantity of cocaine base that was seized from his person

and for the cocaine base equivalent of the seized currency. The district court converted the total amount of seized currency ($7170) to

35.85 grams of cocaine base and combined it with the 14.67 grams

of cocaine base recovered from Smith's person, for a total of 50.52

grams of cocaine base that the court attributed to Smith as relevant

conduct. Smith contends the entire $7170 should not have been used

to determine his relevant conduct since he presented evidence that he

had won the lottery and that he was engaged in a cash-only clothing

business. However, since Smith provided no evidence that the particular money seized derived from lawful sources, we reject this claim.

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2 See Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725,

730-32 (1993).

3 See United States v. David, 83 F.3d 638, 641 n.5 (4th Cir. 1996) (noting distinction between forfeiture and waiver).

4 Olano, 507 U.S. at 731; see United States v. Byrd, 542 F.2d 1026,

1028 (8th Cir. 1976) (finding counsel's failure to object after jury charge

foreclosed appellate review).

 3
We review the district court's calculation of drug amounts for clear

error.5 When calculating the amount of narcotics attributable to a

defendant, the court should include all relevant quantities of drugs in

this calculation.6 Seized currency may be converted to its drug equivalent for purposes of sentencing when the Government furnishes

some evidence that the currency was derived from the defendant's

drug related activity.7

Here, the Government demonstrated an adequate connection

between the seized currency and Smith's drug activity. There was evidence that officers assisted an operative with buying crack cocaine

from Smith on three occasions, and "marked" money was found on

Smith's person. The currency seized was an unusually large sum of

money, especially since Smith was unemployed and had not reported

any earnings to either the Internal Revenue or to his probation officer.

Although Smith claimed to have obtained thousands of dollars by

winning the lottery and selling clothes and presented witnesses who

testified to this fact, "[t]he judge present at the sentencing hearing

[was] in the best position to determine the credibility of the witnesses

and the source of the currency."8 Therefore, we find that the district

court did not clearly err in discrediting Smith's explanations and converting the seized currency into its drug equivalent.

Accordingly, we affirm Smith'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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5 See United States v. Hicks, 948 F.2d 877, 881 (4th Cir. 1991).

6 See U.S. Sentencing Guidelines Manual § 1B1.3(a)(2) (1995) (relevant conduct provision); USSG § 2D1.1 comment. (n.12) ("Types and

quantities of drugs not specified in the count of conviction may be considered in determining the offense level").

7 See Hicks, 948 F.2d at 882 (holding that cash seized from defendant's

home should be considered as relevant conduct and used in determining

the base offense level).

8 United States v. Jackson, 3 F.3d 506, 512 (1st Cir. 1993).

 4