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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. Haymer 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

of III. The criminal history score included 2 points for
committing the instant offense while on probation, 1 point for a
1987 conviction, and 1 point for a 1991 shoplifting conviction.
The latter is the subject of this appeal. 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 Police Department and charged with
contempt 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 court found that the
original sentence for shoplifting consisted only of 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
- 2 -

charge. Haymer was sentenced to 51 months imprisonment and a five-
year term of supervised release 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 application of the
sentencing guidelines; or outside the range of the applicable
sentencing guideline and is unreasonable." United States 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 the 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 373, 374 (emphasis added). Absent a valid waiver of this
right, "[i]f an uncounseled defendant is sentenced to prison, the
conviction itself is unconstitutional." United 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
- 3 -

criminal cases in which the defendant is not sentenced to
imprisonment. Id. Accordingly, uncounseled misdemeanor
convictions for which no term of imprisonment is imposed are
constitutionally valid, may be introduced into evidence at the
punishment 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 subsequent
misdemeanor into a felony with a prison term." Wilson 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 criminal
history category for a crime that is itself a felony. Follin, 979
F.2d at 376 & n.8. Needless to say, possession with the intent to
distribute crack cocaine is a felony; therefore, Baldasar is
inapplicable.
Consistent 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 provides that "[a] sentence which
specifies a fine or other non-incarcerative disposition as an
- 4 -

alternative to a term of imprisonment ... is treated as a non-
imprisonment 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 convictions at
sentencing hearings." United States v. Canales, 960 F.2d 1311,
1315 (5th Cir. 1992).
Haymer presented no evidence that his shoplifting conviction
had been previously ruled constitutionally invalid, but instead
sought to collaterally attack it at sentencing. The district
court, in the exercise of its discretion, entertained the
challenge, but found that Haymer'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 court held that the
conviction was 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
t e d
and I
- 5 -

m a d e
bond.
I
w e n t
b a c k
t
o
court
. At
t h e
t i m e
I was
worki
n g .
S
o
t h e y
. . .
accus
ed me
o
f
steal
ing a
p a c k
o
f
cigar
ettes
. So
I
t o l d
t h e
judge
I
didn'
t. I
w a s
i
n
h i s
chamb
e r .
I
wasn'
t in
court
. . . .
I
thoug
ht it
would
be a
l o w
f i n e
o
r
whate
- 6 -

v e r .
B u t
h
e
t o l d
m
e
h e ' d
accep
t the
guilt
y
p l e a
a n d
g i v e
me a
fine.
I
thoug
h
t
t h e
f i n e
would
b
e
proba
b l y
$ 5 0 ,
y o u
know,
for a
p a c k
o
f
cigar
ettes
; and
h
e
fined
m
e
3 0 0 -
a n d -
somet
h i n g
dolla
r s .
I
didn'
t
h a v e
t h e
money
, so
event
ually
t h e y
- 7 -

s e n t
me to
j a i l
t
o
w o r k
i
t
off.
....
I wasn't advised 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 Baldasar and Scott, argued that,
because Haymer had served 18 or 19 days in jail "as a result of the
conviction 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 with 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 pay 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 part. 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.
- 8 -

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 documentation 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 penal 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 100, $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.
- 9 -

Based on this conflicting testimony, the district court found:
[T]he original sentence was one that required him
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 that 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 constitutionally invalid. We disagree. The
district 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
unconstitutional. Scott, 440 U.S. at 374 (emphasis added).
Accordingly, 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 the fine, it does not invalidate his prior
shoplifting conviction, for which the only sentence was a fine. We
- 10 -

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 of 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 Assistance 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
*
It is unnecessary for us to address the district court's
alternative finding that, because Haymer was an attorney 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 -

imperative applies to the states through the due process clause of
the fourteenth amendment.***
The majority prudently pretermits review of the district
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 was 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
purpose. 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 rejected the
argument that petty offenses and misdemeanors are too insignificant
to warrant appointment of counsel for indigents. Distinguishing
the right to appointed counsel from the right to trial by jury, the
***Gideon v. Wainwright, 372 U.S. 335 (1963).
****446 U.S. 222 (1980).
*****407 U.S. 25 (1972).

Court established a bright-line rule 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 the 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 Argersinger rule and
summarized its previous holding as follows: "The Court in its
[Argersinger] opinion repeatedly referred to trials where 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 he
******Scott v. Illinois, 440 U.S. 367 (1979) (paraphrasing the
holding in Argersinger).
*******440 U.S. 367 (1979). See 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 require 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 only faced the possibility of jail time in
- 13 -

could not afford the fine without first providing him counsel
violated the rule announced in Argersinger and, moreover, 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.
three scenarios, including cases in which "the convicted individual
was unable to pay the fine imposed." Id. at 38 n.10 (citing
Junker, The Right to Counsel in Misdemeanor Cases, 43 Wash. L. Rev.
685, 711 (1968)). See 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), aff'd, 816 F.2d 29 (1st Cir. 1987); United
States v. Ramirez, 555 F. Supp. 736 (E.D. Cal. 1983); Linkous 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
made bona fide effort to pay the fine or that no alternative
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 long 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 incarceration, 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. Mempa v. Rhay, 389 U.S. 128, 134 (1967).
Sentencing is among those critical stages of trial during which
counsel's presence is constitutionally required. Id. Likewise,
when a fine is converted to a prison term a quantum leap in
severity is affected and counsel's availability is imperative. See
Argersinger.
- 14 -

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
distinct************* 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 result 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
not allow the same conviction to lead to another five months of
incarceration.
*************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. Bearden.
- 15 -

I respectfully DISSENT.
- 16 -