UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 98-4876

ROBERT PADGETT, a/k/a Snoop,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                               No. 98-4885
ANTHONY WALTER WILLIAMS, a/k/a
Tone,
Defendant-Appellant.

Appeals from the United States District Court
for the District of West Virginia, at Huntington.
Joseph Robert Goodwin, District Judge.
(CR-98-48)

Submitted: July 30, 1999

Decided: August 20, 1999

Before WIDENER, WILLIAMS, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________
COUNSEL

Lawrence J. Lewis, FLESHER & LEWIS, Huntington, West Virginia;
George B. Vieweg, III, LESTER & VIEWEG, Charleston, West Vir-
ginia, for Appellants. Rebecca A. Betts, United States Attorney, Lisa
A. Green, Assistant United States Attorney, Huntington, West Vir-
ginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Robert Padgett (No. 98-4876) and Anthony Walter Williams (No.
98-4885) appeal from their convictions and sentences for conspiracy
to distribute and possess with intent to distribute cocaine and cocaine
base, in violation of 21 U.S.C.A. § 846 (West 1999). In addition, Wil-
liams appeals from his conviction and sentence for making a house
available for unlawfully distributing and using cocaine base, in viola-
tion of 21 U.S.C.A. § 856(a)(2) (West Supp. 1999).

On appeal, Padgett and Williams first challenge the sufficiency of
the evidence on the conspiracy charge; Williams further challenges
the sufficiency of the evidence to support his conviction for operating
and maintaining a crack house. In the face of such a challenge, a jury
verdict must be upheld if there exists substantial evidence to support
the verdict, viewing the evidence most favorable to the government.
See Glasser v. United States, 315 U.S. 60, 80 (1942). Substantial evi-
dence is evidence "that a reasonable finder of fact could accept as
adequate and sufficient to support a conclusion of a defendant's guilt
beyond a reasonable doubt." United States v. Burgos, 94 F.3d 849,
862 (4th Cir. 1996) (en banc).

In resolving issues of substantial evidence, this Court does not
weigh evidence or review witness credibility, see United States v.

                    2
Saunders, 886 F.2d 56, 60 (4th Cir. 1989), rather, the credibility of
witnesses is within the sole province of the jury. See United States v.
Lamarr, 75 F.3d 964, 973 (4th Cir. 1996); see also United States v.
Manbeck, 744 F.2d 360, 392 (4th Cir. 1984) (role of jury to judge
credibility of witnesses, resolve conflicts in testimony, and weigh the
evidence). This Court may reverse a jury verdict only when there is
a complete absence of probative facts to support the conclusions
reached by the jury, see Sherrill White Constr., Inc. v. South Carolina
Nat'l Bank, 713 F.2d 1047, 1050 (4th Cir. 1983), and this Court has
previously held that even the uncorroborated testimony of an accom-
plice may be sufficient to sustain a conviction. See United States v.
Burns, 990 F.2d 1426, 1439 (4th Cir. 1993).

The sole argument made by Padgett and Williams is that the only
evidence to support their convictions for conspiracy came from wit-
nesses who signed plea agreements and/or immunity agreements.
They claim that because all these witnesses had something to gain,
they were clearly motivated to lie or exaggerate. Because this Court
may not review witness credibility, see Saunders , 886 F.2d at 60, we
affirm the conspiracy convictions as to both Padgett and Williams.

With regard to Williams' challenge to his conviction on the crack
house charge, we have reviewed the record and find that there exists
substantial evidence when viewing the evidence in the light most
favorable to the prosecution. See Glasser, 315 U.S. at 80. We there-
fore sustain the verdict.

Padgett next claims that the district court abused its discretion in
admitting evidence that Padgett previously sold crack while in jail,
contending that revealing to the jury that he was in jail was unfairly
prejudicial to him, and the probative value of the testimony was out-
weighed by the prejudice. We find that the challenged evidence was
not introduced to inflame the jury beyond its evidentiary value, and,
thus, was not an abuse of the district court's discretion. See United
States v. Love, 134 F.3d 595, 603 (4th Cir.), cert. denied, 118 S. Ct.
2332 (1998).

Padgett next claims that the district court clearly erred in attributing
235.065 grams of cocaine base to him, and for increasing his offense
level for possession of a firearm pursuant to USSG§ 2D1.1(b)(1).

                     3
The basis for Padgett's objection is his claim that 198.45 grams of the
total drug weight was based upon the testimony of four witnesses who
benefitted from plea and immunity agreements with the Government,
and whose testimony allegedly was therefore inherently unreliable.
He also objects to the increase in his offense level for firearm posses-
sion based upon the allegedly unreliable testimony of one of those
witnesses.

We review the district court's factual findings at sentencing,
including the determination of relevant conduct, for clear error. See
United States v. Fletcher, 74 F.3d 49, 55 (4th Cir. 1996). The United
States needs to prove the existence of the quantities of drugs that were
included in the defendant's course of conduct only by a preponder-
ance of the evidence. See United States v. Goff , 907 F.2d 1441, 1444
(4th Cir. 1990). This Court has held that the district court's determi-
nation as to relevant conduct is reviewed with great deference to the
court's opportunity to assess credibility. See United States v. D'Anjou,
16 F.3d 604, 614 (4th Cir. 1994).

In this case, after a full and careful consideration of all pertinent
evidence, the district court made specific findings relative to the cred-
ibility of the witnesses when making its determination as to drug
weight, basing its determination not only on the testimony of the wit-
nesses, but on the presentence investigation report as well. Moreover,
the district judge had the opportunity to first-hand observe the wit-
nesses during the trial and to assess their demeanor and credibility.
Given these circumstances, we cannot say that the district court's con-
clusions regarding drug weight were clearly erroneous. See D'Anjou,
16 F.3d at 614.

The question of whether Padgett possessed a firearm during the
conspiracy is a factual determination likewise subject to the clearly
erroneous standard of review. See United States v. Rusher, 966 F.2d
868, 880 (4th Cir. 1992). The district court's two-level enhancement
of Padgett's offense level for possession of a firearm was based on
witness testimony, as well as a series of pictures entered into evidence
of Padgett and another man with guns, scales on a table, and a white
substance on the scale, which were taken at a location where there
was much testimony that crack was stored. We find that the district
court properly relied upon the photographs and the witness testimony,

                     4
and that its enhancement of Padgett's offense level under USSG
§ 2D1.1(b)(1) was not clearly erroneous. See Rusher, 966 F.2d at 880;
United States v. Harris, 128 F.3d 850, 852 (4th Cir. 1997) (the prox-
imity of guns to illicit drugs can support a district court's enhance-
ment of a defendant's sentence under § 2D1.1(b)(1)).

Finally, Williams claims that the district court erred in denying his
pretrial motion and subsequently renewed motions to dismiss Count
Six of the indictment charging him with a violation of 21 U.S.C.
§ 856(a)(2), on the ground that the indictment failed to allege essen-
tial statutory elements. The district court's determination regarding
the sufficiency of an indictment where, as here, the defendant moved
against the indictment at trial, is subject to de novo review. See
United States v. Loayza, 107 F.3d 257, 260 (4th Cir. 1997). In assess-
ing the sufficiency of an indictment the issue is whether the indict-
ment as a whole is so vague that it violates the defendant's rights. The
purpose of the indictment is: (1) to appraise a defendant of the charge
against him so that he can prepare a defense; and (2) to enable a
defendant to plead a double jeopardy bar, if applicable. See Russell
v. United States, 369 U.S. 749, 763-64 (1962); United States v. Cobb,
905 F.2d 784, 790 (4th Cir. 1990).

We find Williams' argument that the indictment is constitutionally
impaired because the word "residence" was used in the indictment
rather than "building, room or enclosure" to be without merit. Wil-
liams does not allege that he did not understand that he was being
charged with maintaining a crack house as charged under § 856(a)(2).
Our review of the indictment in this case demonstrates that the indict-
ment revealed the charge Williams was facing, the structure which
was the basis of the crack house count, and the activities which sup-
ported the count. We therefore find Williams' indictment was not so
vague as to violate his constitutional rights, and that the district court
did not err in denying his pretrial motion and subsequently renewed
motions to dismiss Count Six of the indictment. See Loayza, 107 F.3d
at 260.

Accordingly, we affirm Padgett's and Williams' convictions and
sentences. 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

                     5
