US v. Jason Batt

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 7:14-cr-00049-FL-1 Copies to all parties and the district court/agency. [999930721].. [15-4691]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4691

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JASON BATTS,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Louise W. Flanagan,
District Judge. (7:14-cr-00049-FL-1)

Submitted:

September 12, 2016

Decided:

September 16, 2016

Before NIEMEYER, MOTZ, and DIAZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Rudolph A. Ashton, III, DUNN PITTMAN SKINNER & CUSHMAN, PLLC,
New Bern, North Carolina, for Appellant. John S. Bruce, Acting
United States Attorney, Jennifer P. May-Parker, Kristine L.
Fritz, Assistant
United
States
Attorneys,
Raleigh,
North
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Jason Batts pled guilty to one count of possession of a
firearm by a convicted felon, 18 U.S.C. § 922(g)(1) (2012), and
was convicted by a jury of possession with intent to distribute
a

quantity

(2012).

of

cocaine

base

(crack),

21

U.S.C.

§ 841(a)(1)

He was sentenced to 169 months in prison for the drug

offense and 120 months, concurrent, for the firearm offense.
Batts now appeals, raising several issues.

We affirm.

I
Batts contends that the district court improperly denied
his Fed. R. Crim. P. 29 motion for judgment of acquittal.

We

review de novo a district court’s denial of a Rule 29 motion.
United

States

v.

Reed,

780

F.3d

denied, 136 S. Ct. 167 (2015).

260,

269

(4th

Cir.),

cert.

“Applying that standard, . . .

the verdict . . . must be sustained if there is substantial
evidence, taking the view most favorable to the government, to
support it.”

Id. (internal quotation marks omitted).

To establish a violation of § 841(a)(1), the Government had
to prove beyond a reasonable doubt that Batts “possessed cocaine
base, that he did so knowingly, and [that he had] an intent to
distribute.”
572

(4th

Cir.

See United States v. Penniegraft, 641 F.3d 566,
2011).

Having

reviewed

the

trial

record,

we

conclude that there was sufficient evidence upon which a jury
could have convicted Batts.
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Officers responding to a “shots fired” call were directed
by an eyewitness to an apartment, where they found Batts lying
prone on a bed in the first floor master bedroom.
Detective
residence.

Simpson

that

there

was

“some

Batts told

marijuana”

in

the

In the bedroom where Batts was located, officers

found men’s shoes and clothing.

On the top shelf of the bedroom

closet officers saw a pistol atop a locked safe.
safe was taped to the closet’s frame.

The key to the

When they opened the

safe, officers found another handgun, marijuana, jewelers bags,
a large amount of crack cocaine, and smaller amounts of crack
packaged in jewelers bags.

The large amount of crack weighed

8.21 grams; the four smaller bags together weighed 3.6 grams.
During an interview at the police station, Batts admitted
that he had been staying at the apartment.

He was familiar with

the contents of the safe and said he was not sure how much crack
was in the safe.

Batts said that a keyring inside the safe held

a second key to the safe as well as a key to his vehicle.

He

denied using crack cocaine, admitted that he had purchased all
“the guns the way they were,” and said that activity in the area
was “messing up his money.”
Lovell

testified

that

8.21

Both Detective Simpson and Officer
grams

distribution quantity.

3

of

crack

constitutes

a

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Given

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this

evidence,

we

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conclude

that

the

evidence

was

sufficient to support the jury’s finding that Batts knowingly
possessed the crack and that it was intended for distribution.
II
Both Officer Lovell and Detective Simpson testified that
8.21 grams of crack was a distribution amount.

The district

court overruled Batts’ objections to this testimony.
contends that the court’s rulings were erroneous.

He now

We review a

district court’s evidentiary rulings for abuse of discretion.
United States v. Johnson, 617 F.3d 286, 292 (4th Cir. 2010).
The

district

court

did

not

admitting the testimony in question.
years

of

experience

investigating

abuse

its

discretion

in

Both officers had multiple
narcotics

crimes.

It

was

permissible for them to testify based on their experience that
the crack in question was a distribution quantity.

Further,

even if the testimony effectively was expert testimony, it was
not

excludable

because

neither

Officer

Lovell

nor

Detective

Simpson expressed an opinion about whether Batts intended to
distribute the crack.

See Fed. R. Evid. 704(b).
III

Batts claims that the district court erred when it refused
his request that the jury be instructed on the lesser-included
offense

of

possession

of

crack.

We

review

instructional error for abuse of discretion.
4

an

alleged

United States v.

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Lespier, 725 F.3d 437, 449 (4th Cir. 2013).

Because evidence of

the

differentiates

element

(intent

to

distribute)

that

the

offense of conviction from the lesser-included offense was not
sharply

conflicting,

court’s ruling.

we

find

no

abuse

of

discretion

in

the

See United States v. Wright, 131 F.3d 1111,

1116 (4th Cir. 1997).
IV
Batts raises a number of issues related to the calculation
of

his

Guidelines

range.

In

assessing

a

district

court’s

application of the Guidelines, we review factual findings for
clear error and legal conclusions de novo.

United States v.

Horton, 693 F.3d 463, 474 (4th Cir. 2012).
Batts
erroneous:

contends
a

that

two-level

the

following

enhancement

based

enhancements
on

the

were

number

of

firearms (four) recovered, see U.S. Sentencing Guidelines Manual
§ 2K2.1(b)(1)(A)
obliterated

(2015);

serial

number

a

four-level
on

one

of

increase
the

based

handguns,

on

see

an
USSG

§ 2K2.1(b)(4)(B); and a four-level enhancement based on Batts’
possession of the firearms in connection with another felony
offense, see USSG §

2K2.1(b)(6)(B).

The presence of guns and drugs in close proximity suggests
that Batts possessed the guns in connection with a felony drug
offense.
Batts,

and

Further,
two

of

four
those

guns

were

were
5

located

either

in

in
or

the

room

with

atop

the

safe

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containing the drugs.
one

of

the

handguns

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Additionally, there is no dispute that
had

an

obliterated

serial

number.

We

conclude that the district court did not commit clear error with
respect to any of the enhancements.
V
Because Batts possessed the firearm after sustaining one
conviction

of

a

felony

controlled

substance

offense,

the

district court at sentencing assigned him base offense level 20.
Batts

unsuccessfully

claimed

below

that

the

pertinent

North

Carolina state conviction, for which he received a sentence of
9-20 months, was not a felony and that his base offense level
should have been 14.

He concedes on appeal that United States

v. Barlow, 811 F.3d 133 (4th Cir. 2015), cert. denied, 136 S.
Ct. 2041 (2016), decided after Batts’ sentencing, renders this
argument meritless.

We agree.

See United States v. Posey, 644

F. App’x 253 (4th Cir. 2016).
VI
We

therefore

affirm.

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

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