United States v. Elton Barnes, Jr. , 670 F. App'x 121 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4621
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
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