                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                            No. 01-4647
DONALD MCKAY HALE, JR.,
            Defendant-Appellant.
                                       
            Appeal from the United States District Court
     for the Southern District of West Virginia, at Charleston.
              Joseph Robert Goodwin, District Judge.
                            (CR-00-222)

                  Submitted: February 21, 2002

                      Decided: March 14, 2002

Before NIEMEYER, WILLIAMS, and TRAXLER, Circuit Judges.



Affirmed by unpublished per curiam opinion.


                            COUNSEL

Donald L. Stennett, Charleston, West Virginia, for Appellant. Kasey
Warner, United States Attorney, Monica K. Schwartz, Assistant
United States Attorney, Charleston, West Virginia, for Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2                       UNITED STATES v. HALE
                              OPINION

PER CURIAM:

   Donald McKay Hale was convicted by a jury of conspiracy to dis-
tribute less than five grams of crack, 21 U.S.C. § 846 (1994) (Count
One), and possession of a quantity of crack with intent to distribute,
21 U.S.C.A. § 841 (West 1999 & Supp. 2000) (Count Two). He
appeals the 151-month sentence imposed by the district court, arguing
that the district court clearly erred in determining that he was respon-
sible for seventy-nine grams of crack, and in finding that a two-level
enhancement applied for possession of a dangerous weapon during
the offense. U.S. Sentencing Guidelines Manual § 2D1.1(b)(1)
(2000). We affirm.

   On September 26, 2000, police in Charleston, West Virginia, con-
ducted a search at an apartment rented by Alma Jean Bryant. They
recovered 45.7 grams of crack, $4835 in cash (later converted for sen-
tencing purposes to 29.18 grams of crack), and three firearms. Bryant,
Randolph Henderson, and Wilber Monroe pled guilty to drug traffick-
ing offenses while Michael Rowe and Hale went to trial on charges
that they conspired with Henderson, Monroe, and others to distribute
more than fifty grams of crack and related offenses. Bryant, Hender-
son, and Monroe testified at trial and implicated Hale in the activities
of the conspiracy. Although both Rowe and Hale were convicted of
the conspiracy charge, the jury returned a special verdict finding that
Hale had conspired to distribute no more than five grams of crack.
The jury also acquitted Hale on Count Four, which charged that he
possessed more than five grams of crack on September 26, 2000, with
intent to distribute.

   Hale contends on appeal that the district court’s finding at his sen-
tencing that he was responsible for seventy-nine grams of crack was
inconsistent with the jury’s verdict. Hale argues that the jury acquitted
him of involvement in the Bryant-Rowe-Henderson-Monroe conspir-
acy, which he concedes sold more than fifty grams of crack, and
instead convicted him of conspiring with unknown persons to distrib-
ute less than five grams of crack.

   The district court’s determination of the drug amount attributable
to a defendant for sentencing purposes is a factual issue reviewed for
                        UNITED STATES v. HALE                         3
clear error. United States v. Randall, 171 F.3d 195, 210 (4th Cir.
1999). Hale’s argument ignores the fact that the jury convicted him
of participation in the conspiracy. The district court was not limited
by the special verdict as to quantity because the sentencing court may
consider conduct of which the defendant has been acquitted in deter-
mining his relevant conduct for sentencing purposes. United States v.
Watts, 519 U.S. 148, 157 (1997); United States v. Love, 134 F.3d 595,
605 (4th Cir. 1998) (district court has obligation to make factual find-
ings independent of jury verdict concerning relevant conduct for sen-
tencing purposes). The district court found that Hale was a participant
in the conspiracy by virtue of the assistance he gave the other conspir-
ators. The court also found that the crack and proceeds from crack
sales present in Bryant’s apartment on September 26, 2000, were
attributable to Hale because it was reasonably foreseeable to him that
there would be crack and money in the apartment. See USSG
§ 1B1.39a)(1)(B). The district court’s finding was not clearly errone-
ous.

   Hale next argues that the enhancement for possession of a danger-
ous weapon was incorrectly made because the witness testimony that
implicated him in the drug offense was not credible, and because none
of the guns present in the apartment on September 26 were specifi-
cally identified as belonging to him. Hale contends that he was acquit-
ted of participation in the conspiracy being carried on in Bryant’s
apartment on September 26, 2000, and argues that it necessarily fol-
lows that it is clearly improbable that the weapons were connected to
any offense committed by him. See USSG § 2D1.1(b)(1), comment.
(n.3) (the adjustment applies if a weapon is present during a drug traf-
ficking crime unless it is clearly improbable that it was connected to
the offense).

   This argument fails because Hale was convicted of being a partici-
pant in the conspiracy centered in Bryant’s apartment, where firearms
were present. There was no evidence which would have enabled the
court to find that it was clearly improbable that the guns were con-
nected to the drug offense. Therefore, the enhancement was properly
made. See United States v. Harris, 128 F.3d 850, 852 (4th Cir. 1997)
(proximity of guns to illegal drugs is sufficient to justify enhance-
ment).
4                       UNITED STATES v. HALE
  We therefore affirm the 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
