United States v. Elton Barnes, Jr.

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4621

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

ELTON BARNES, JR., a/k/a Reggie Woodard,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:14-cr-00091-F-1)

Submitted: October 25, 2016 Decided: November 3, 2016

Before NIEMEYER, MOTZ, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. John Stuart Bruce, Acting United States Attorney,
Jennifer P. May-Parker, Barbara D. Kocher, Assistant United
States Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

A federal jury convicted Elton Barnes, Jr. of possession of

a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1)

(2012). The district court sentenced Barnes to 120 months of

imprisonment and he now appeals. For the reasons that follow,

we affirm.

Barnes first argues on appeal that the district court erred

in admitting a hearsay statement at trial, and that admission of

the statement violated his right to confront witnesses against

him guaranteed by the Sixth Amendment. We review the district

court’s admission of evidence for abuse of discretion. United

States v. Moore, 810 F.3d 932, 939 (4th Cir. 2016). Hearsay is

a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove

the truth of the matter asserted. Fed. R. Evid. 801(c).

Hearsay is generally inadmissible. Fed. R. Evid. 802.

We have thoroughly reviewed the record and conclude that

any error in the admission of the challenged statement was

harmless. See United States v. Weaver, 282 F.3d 302, 313-14

(4th Cir. 2002) (evidentiary rulings are subject to review for

harmless error). In addition, we reject Barnes’ argument that

admission of the statement violated his Sixth Amendment rights.

“Only ‘testimonial’ statements are excludable under the Sixth

Amendment’s Confrontation Clause”, Moore, 810 F.3d at 939, and

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Barnes has failed to demonstrate that the statement was

testimonial.

Barnes also argues that the district court erred in

applying an enhancement in offense level under the Sentencing

Guidelines for possession of a firearm with an altered or

obliterated serial number where the jury acquitted him of the

charge of possession of a firearm with an obliterated serial

number. In reviewing the district court’s calculations under

the Guidelines, “we review the district court’s legal

conclusions de novo and its factual findings for clear error.”

United States v. Manigan, 592 F.3d 621, 626 (4th Cir. 2010).

Here, the district court committed no error in applying the

Guidelines enhancement as the charged offense and the Guidelines

enhancement have different elements. The Guidelines direct a

court to apply a four-level enhancement in the offense level

when the defendant possessed a firearm with an obliterated

serial number. U.S. Sentencing Guidelines Manual

§ 2K2.1(b)(4)(B) (2015). Such an enhancement “applies

regardless of whether the defendant knew or had reason to

believe that the firearm . . . had an altered or obliterated

serial number.” USSG § 2K2.1 cmt. n.8(B). Under 18 U.S.C.

§ 922(k) (2012), however, knowledge that a serial number is

altered or obliterated is an element of the offense. See United

States v. Haywood, 363 F.3d 200, 206-07 (3d Cir. 2004).

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Moreover, we have held that a district court may consider

acquitted conduct at sentencing as long as the court finds such

relevant conduct by a preponderance of the evidence. See United

States v. Perry, 560 F.3d 246, 258 (4th Cir. 2009).

Accordingly, we affirm the judgment of the district court.

We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before

this court and argument would not aid in the decisional process.

AFFIRMED