                            UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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