UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 99-4083

ANTHONY ROY DRAKE,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
James A. Beaty, Jr., District Judge.
(CR-98-211)

Submitted: July 27, 1999

Decided: September 20, 1999

Before NIEMEYER and HAMILTON, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Louis C. Allen III, Federal Public Defender, Gregory Davis, Assistant
Federal Public Defender, Greensboro, North Carolina, for Appellant.
Walter C. Holton, Jr., United States Attorney, Sandra J. Hairston,
Assistant United States Attorney, Greensboro, North Carolina, for
Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Anthony Roy Drake pled guilty to conspiracy to possess more than
50 grams of crack cocaine with intent to distribute, 21 U.S.C. § 846
(1994), and was sentenced to a term of 210 months imprisonment.
Drake challenges his sentence on the grounds that the district court
clearly erred in holding him responsible for 829 grams of crack seized
from a closet in his home, see U.S. Sentencing Guidelines Manual
§ 2D1.1 (1998), and in making a two-level enhancement to account
for firearms found in the same room. See USSG § 2D1.1(b)(1). We
affirm.

Drake testified at sentencing that a co-conspirator, Rodney Wil-
liams, had placed the crack in his closet without his knowledge or
permission. He admitted buying seven grams of crack from Williams
and distributing this amount to a government informant, but insisted
that his agreement with Williams was limited to the seven grams. He
asserted that Williams told him later that he put the crack in Drake's
closet intending to ask if he could hide the crack in the woods behind
Drake's home. Drake's sister testified that Williams had arrived at his
mobile home shortly before the search warrant was executed and had
gone directly into the master bedroom, where he stayed for a few
minutes, although neither Drake nor his wife were at home. Drake, his
wife, and his sister testified that, after the search and their arrest, Wil-
liams took the blame and apologized to them all in the police van.

However, the government informant had observed three ounces of
crack in Drake's bedroom when he bought a small amount of crack
from Drake a few days earlier. He reported that the sale took place
in a room without working lights; the officers who executed the
search confirmed that the lights in the master bedroom did not work.
Moreover, Drake acknowledged that he and Williams sold marijuana
together in the past and that he had pending firearms charges in New

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Jersey. The district court found that Drake had conducted at least one
drug transaction in the back bedroom, not outside as Drake asserted,
that Williams' conduct in storing 829 grams of crack in Drake's bed-
room was within the scope of Drake's agreement with him, and that
it was reasonably foreseeable to Drake that Williams would supply
him with additional crack at his residence for distribution purposes.
The court further found that, because there was evidence that Drake
conducted at least one drug transaction in the bedroom where the fire-
arms were found, it was not clearly improbable that the firearms were
connected to the drug trafficking. Accordingly, the court added two
offense levels under USSG § 2D1.1(b)(1).

Under USSG § 1B1.3, a defendant who is convicted of conspiracy
is accountable for "all reasonably foreseeable acts and omissions of
others in furtherance of the jointly undertaken criminal activity." A
defendant is not responsible for drug quantities that were outside "the
scope of the criminal activity that he jointly undertook." USSG
§ 1B1.3, comment. (n.2). In determining the scope of the defendant's
agreement, "the court may consider . . . any implicit agreement fairly
inferred from the conduct of the defendant and others." Id.

Drake principally argues that the government failed to prove that
he knew the crack was in his home, that he consented to have the
crack placed there, or that such a large amount was within the scope
of his agreement with Williams or was reasonably foreseeable to him.
While the government had no direct evidence establishing the scope
of Drake's agreement with Williams, we find that the district court
did not clearly err in finding that circumstantial evidence permitted
the inference that Drake's agreement was not limited to the seven
grams of crack he distributed to the informant and that, even if it was
Williams who placed the crack in Drake's closet, his action was rea-
sonably foreseeable to Drake.

Drake further argues that the district court should not have consid-
ered the government's hearsay evidence concerning the informant's
dealings with him because a matter so important should not be
decided on hearsay evidence. It is well established that any informa-
tion, including hearsay evidence, is acceptable at a sentencing hear-
ing, as long as it has "sufficient indicia of reliability to support its
probable accuracy." USSG § 6A1.3, p.s., comment. (citing United

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States v. Watts, 117 S. Ct. 633, 637 (1997)). Drake suggests that the
informant could not have observed three ounces of crack in Drake's
bedroom because the room was dark. However, the sale could not
have been carried out in total darkness. If some light entered the room
from the doorway, the informant could have observed the three
ounces of crack when Drake retrieved the small amount of crack he
sold to the informant from its storage place. Therefore, the district
court did not clearly err in finding that Drake was accountable for the
829 grams of crack found in his closet.

Because the district court found that the crack was at least reason-
ably foreseeable to Drake, and Drake failed to show that it was clearly
improbable that the firearms were connected to the drug offense, the
enhancement for the presence of weapons was not clearly erroneous.
Application Note 3 to § 2D1.1 explains that the enhancement should
be made if a dangerous weapon is present, unless it is clearly improb-
able that the weapon is connected to the offense. It is sufficient that
a firearm be located in a place where the drug conspiracy is carried
out. See United States v. Harris, 128 F.3d 850, 853 (4th Cir. 1997).

We therefore affirm the 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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