US v. Elton Barnes, Jr.

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:14-cr-00091-F-1 Copies to all parties and the district court/agency. [999961403].. [15-4621]

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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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

statement,

other

than

one

made

by

the

United

Hearsay is

declarant

while

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

truth

of

the

matter

asserted.

Hearsay is generally inadmissible.

Fed.

R.

Evid.

801(c).

Fed. R. Evid. 802.

We have thoroughly reviewed the record and conclude that
any

error

harmless.

in

the

admission

of

the

challenged

statement

was

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
2

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Barnes

has

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failed

to

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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.
the

In reviewing the district court’s calculations under

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

serial

defendant

possessed

number.

§ 2K2.1(b)(4)(B)
regardless

of

U.S.

firearm

Such

the

with

Sentencing

(2015).

whether

a

an

defendant

an

obliterated

Guidelines
enhancement

knew

or

had

Manual
“applies

reason

to

believe that the firearm . . . had an altered or obliterated
serial number.”

USSG § 2K2.1 cmt. n.8(B).

§ 922(k)

however,

(2012),

knowledge

that

a

Under 18 U.S.C.
serial

altered or obliterated is an element of the offense.
States

v.

Haywood,

363

F.3d

200,
3

206-07

(3d

number

is

See United
Cir.

2004).

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Moreover,

we

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have

held

that

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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

contentions

with
are

oral

argument

adequately

because

presented

in

the

facts

and

the

materials

legal
before

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

AFFIRMED

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