UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 03-4638

DONELL DONTE PADGETT,

Defendant-Appellant. 

Appeal from the United States District Court

for the Southern District of West Virginia, at Charleston.

John T. Copenhaver, Jr., District Judge.

(CR-03-44)

Submitted: February 27, 2004

Decided: May 26, 2004

Before WIDENER, LUTTIG, and MICHAEL, Circuit Judges.

Affirmed by unpublished per curiam opinion. 

COUNSEL

Donald L. Stennett, Charleston, West Virginia, for Appellant. Kasey

Warner, United States Attorney, R. Gregory McVey, Assistant United

States Attorney, Huntington, West Virginia, for Appellee. 

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

Vacated by Supreme Court, January 24, 2005
OPINION

PER CURIAM: 

Donell Donte Padgett was convicted of conspiracy to distribute

more than five grams of cocaine base, 21 U.S.C. § 846 (2000), two

counts of distribution of cocaine base, 21 U.S.C. § 841(a)(1) (2000),

and aiding and abetting the possession with intent to distribute

cocaine base, 18 U.S.C. § 2 (2000), 21 U.S.C. § 841(a)(1). Padgett

appeals his conviction and 108-month sentence. We affirm. 

I

Law enforcement officials in Kanawha County, West Virginia,

learned that an individual known as "Who-dini" was selling cocaine

base (crack) in Dunbar and Charleston, West Virginia. The officials

arranged to have two confidential informants make a series of controlled buys from Who-dini. Each time, the informant called Padgett’s

cell phone number to arrange to purchase crack. On January 7, 2003,

John Corey Neal arrived to sell 2.2 grams of crack to the informant.

On January 13, Padgett met the informant and sold him 1.3 grams of

crack. On January 16, a second informant purchased .78 grams of

crack from Padgett. On January 17, the second informant called Padgett’s cell phone number to arrange a purchase of crack. Padgett

arrived at a designated meeting place in a maroon Suburban and sold

the informant 2.2 grams of crack. Police who had been monitoring a

residence in Dunbar from which crack allegedly was being sold had

often observed a maroon Suburban parked outside the residence. 

When officers surveilling the residence learned that the January 17

controlled buy was about to take place, they began to videotape the

front door of the home. Padgett and three others left the house and got

into the maroon Suburban. Officers followed the vehicle to the place

where the buy occurred, then followed it back to the residence. Padgett exited the Suburban. 

On January 27, the first informant called Padgett’s cell phone number and arranged to purchase crack. Corey Allison arrived in a Dodge

Intrepid, which also often was parked outside the residence, and sold

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crack to the informant. Police closed in, and Allison fled. He was

soon captured, and officers found on Allison’s person $200 of marked

buy money that had been given to the informant. 

The informants testified about the controlled buys at trial and identified the defendant, Padgett, as the man they knew as Who-dini. Allison testified that he, Padgett, and John Corey Neal lived at the

residence, that the cell phone number the informants called belonged

to Padgett, and that Padgett generally drove the Suburban. There was

testimony that officers found mail addressed to Padgett at the residence. Finally, there was testimony that, during a search of the residence, officers found firearms, drug paraphernalia, and thirty grams

of crack. Padgett arrived during the execution of the search warrant

with $2400 and marijuana on his person. 

II

Padgett first contends that the evidence was insufficient to convict

him because the testimony of the two informants was inherently unreliable. Witness credibility is within the sole province of the jury, and

we will not evaluate the credibility of testimony. United States v.

Saunders, 886 F.2d 56, 60 (4th Cir. 1989). 

We conclude that, "taking the view most favorable to the Government," substantial evidence supports the verdict. See Glasser v.

United States, 315 U.S. 60, 80 (1942); United States v. Murphy, 35

F.3d 143, 148 (4th Cir. 1994). First, Padgett was convicted of violating § 841(a)(1) on January 16 and 17. On each occasion, a confidential informant called Padgett’s cell phone, and Padgett himself sold

crack to the informant. Second, Padgett clearly aided and abetted the

sale of crack on January 27: the informant called his cell phone number to arrange the transaction, and Allison testified that he conducted

the transaction at Padgett’s request. The evidence thus was sufficient

to convict on Counts Four, Five, and Six. See United States v. Burgos,

94 F.3d 849, 873 (4th Cir. 1996) (en banc) (stating elements of

offense). Finally, there was sufficient evidence to establish that Padgett, Allison, and Neal voluntarily entered into a conspiracy to distribute crack. See id. at 857 (stating elements of conspiracy). 

UNITED STATES v. PADGETT 3
III

Padgett next alleges that the district court should not have included

as relevant conduct the thirty grams of crack found inside the residence. Under the sentencing guidelines, drug quantities not specified

in the counts of conviction are considered relevant conduct when they

are part of the same course of conduct or common scheme or plan.

U.S. Sentencing Guidelines Manual § 1B1.3(a)(2) (2002). In calculating drug amounts, the court may consider any relevant information,

"provided that the information has sufficient indicia of reliability to

support its probable accuracy." United States v. Uwaeme, 975 F.2d

1016, 1021 (4th Cir. 1992) (quoting USSG § 6A.13(a), p.s.). Given

Padgett’s significant ties to the residence and his leaving from the residence, where crack was stored, to complete the January 17 drug

transaction, the district court did not clearly err when it included the

thirty grams as relevant conduct. 

IV

Finally, Padgett contests the district court’s finding that the firearms discovered at the residence were connected to drug trafficking

and that their presence was reasonably foreseeable to Padgett. We

review this finding for clear error. See United States v. McAllister,

272 F.3d 228, 234 (4th Cir. 2001). 

The guidelines provide for a two-level increase in offense level for

drug offenses "[i]f a dangerous weapon (including a firearm) was possessed." USSG § 2D1.1(b)(1). "[I]n the case of a jointly undertaken

criminal activity . . . , all reasonably foreseeable acts . . . of others in

furtherance of" that activity are included as relevant conduct. USSG

§ 1B1.3(a)(1)(B). The presence of guns to perpetrate illicit drug activity typically is reasonably foreseeable. "Absent evidence of exceptional circumstances, . . . it [is] fairly inferable that a codefendant’s

possession of a dangerous weapon is foreseeable to a defendant with

reason to believe that their collaborative criminal venture includes an

exchange of controlled substances for a large amount of cash." United

States v. Kimberlin, 18 F.3d 1156, 1160 (4th Cir. 1994) (internal quotation and citation omitted). 

Several firearms were found in the residence. Coconspirator Neal

was in a bedroom with a loaded firearm under his pillow and another

4 UNITED STATES v. PADGETT
under his bed. It was logical to infer that these and another gun were

in the residence to protect the drugs that also were there. It was reasonably foreseeable that Padgett, who lived at the residence, would

have known of the guns’ presence, and it was not clear error for the

district court to apply the firearm enhancement. 

V

We accordingly affirm. 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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