                            UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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    of    cocaine     base     (crack),       21     U.S.C.    § 841(a)(1)

(2012).      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    260,     269    (4th     Cir.),   cert.

denied, 136 S. Ct. 167 (2015).                 “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.”        See United States v. Penniegraft, 641 F.3d 566,

572   (4th   Cir.    2011).       Having       reviewed    the    trial     record,   we

conclude that there was sufficient evidence upon which a jury

could have convicted Batts.

                                           2
     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.                 Batts told

Detective    Simpson    that   there       was   “some   marijuana”   in    the

residence.    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.              The key to the

safe was taped to the closet’s frame.                 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.”           Both Detective Simpson and Officer

Lovell   testified      that   8.21    grams     of   crack   constitutes     a

distribution quantity.




                                       3
      Given       this   evidence,       we    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.                                He now

contends that the court’s rulings were erroneous.                            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     abuse     its      discretion    in

admitting the testimony in question.                    Both officers had multiple

years   of    experience      investigating            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     an     alleged

instructional error for abuse of discretion.                         United States v.

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

the    element        (intent    to     distribute)                that   differentiates           the

offense of conviction from the lesser-included offense was not

sharply     conflicting,         we    find       no     abuse       of       discretion     in     the

court’s ruling.           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       contends      that        the        following             enhancements         were

erroneous:        a    two-level       enhancement                based   on       the    number    of

firearms (four) recovered, see U.S. Sentencing Guidelines Manual

§ 2K2.1(b)(1)(A)          (2015);       a    four-level              increase        based    on    an

obliterated        serial     number        on    one        of    the    handguns,        see     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.          Further,      four    guns          were    located         in   the    room     with

Batts,      and    two   of     those       were       either        in       or   atop    the     safe

                                                  5
containing the drugs.             Additionally, there is no dispute that

one   of     the    handguns    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




                                            6
