Defendant-Appellant Ronald Pena appeals both his conviction and sentence for possession of cocaine base with intent to distribute and carrying a firearm during and in relation to a drug trafficking crime. His primary contentions are that his conviction rested on improperly admitted fingerprint evidence and that there was insufficient evidence to convict him of either charge. After a careful review, we reject Pena’s claims and affirm the district court.
I. Facts and Procedural Background
Because Pena challenges the sufficiency of the evidence brought against him, we recite the facts in the light most favorable to the jury’s verdict.
United States v. Garda-Alvarez,
Officers then searchеd for evidence in the area where Pena had been observed running. They found a Sidekick II cell phone as well as a green baseball cap. Pena had been wearing such a cap before fleeing the police. The officers also found a loaded Smith & Wesson Model .357 Magnum revolver lying on the ground in plain view and, a few feet from the firearm, a clear plastic bag with other, smaller clear plastic bags inside of it containing a white substance. A state laboratory analysis later determined that the bags contained a net weight of 43.19 grams of cocaine base. 1
When Pena was transported to the Brockton Police Department for booking, officers recovered $2,781 in United States currency from his front right pocket. Pena was fingerprinted and advised of his Miranda rights. He subsequently asked the officers if they had found his cell phone, and when Pena was shown the Sidekick II phone, he identified it as his.
On Dеcember 7, 2005, the grand jury returned a two-count indictment charging Pena with possession of cocaine base with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) (the “drug charge” or *109 “Count One”); and carrying a firearm during and in relation to a drug trafficking crime, and possession of a firearm in furtherance of that crime, in violation of 18 U.S.C. § 924(c) (the “firearm charge” or “Count Two”).
A ten-day jury trial commenced on May 29, 2007. At a motions hearing prior to opening statements, Pena moved to exclude testimony regarding fingerprint evidence, arguing that it failed to meet the standard for expert testimony under Fed. R.Evid. 702. The district court provisionally denied the motion and allowed three troopers from the Massachusetts State Police trained in fingerprint analysis to testify at trial that they compared a partial latent fingerprint found on the revolver to an inked fingerprint of Pena’s left thumb using the ACE-V method (analysis, comparison, evaluation, and verification), and mаtched the latent fingerprint with the inked fingerprint to the exclusion of all others. Pena renewed his objection to the testimony, and the district court again denied the motion in an oral ruling.
Also, Christina Rosado, a civilian witness residing at 95 North Warren Avenue, testified that on the afternoon of August 27, 2005, she looked out her kitchen window and saw a man run across her backyard, reach into the area of his right hip, and make two separate throwing motions, as if he were throwing something away. Rosado testified that she then observed the man continue to run until he was out of her line of sight.
On June 8, 2007, on the seventh day of trial, Pena moved for judgment of acquittal, asserting that the evidence was insufficient to sustain a conviction on either count charged in the indictment. The district court orally denied the motion, and on June 14, 2007, Pena was convicted on both counts of the indictment. Pena filed a post-judgment motion for acquittal on Count Two, and that motion was also denied. On February 26, 2008, the district court sentenced Pena to consecutive terms of imprisonment totaling 120 months as well as four years of supervised release.
II.
On appeal we consider the following issues: (1) whether the district court erred in admitting the testimony of the Massachusetts State Troopers regarding the fingerprint evidence, and (2) whether the totality of the evidence was sufficient to support the verdict. 2
A. Admissibility of Expert Testimony Regarding Fingerprint Evidence
We review Pena’s claim that the district court erred in admitting expert testimony regarding fingerprint evidence for abuse of discretion.
United States v. Diaz,
Pena challenges the ACE-V method used by the state troopers in matching the partial latent fingerprint recovered from the firearm to Pena’s inked fingerprint. Pena claims that the method was not scientific and that the troopers’ conclusion that his fingerprint matched the partial latent print was based on no discerniblе standard. Specifically, Pena argues that the ACE-V method was unreliable because it involved merely a visual comparison of the two prints where the trooper conducting the initial analysis knew that the inked print was taken from a suspect and the trooper made no diagrams, charts, or notes as part of his evaluation. Given our standard of review, we are not persuaded.
*110
Federal Rule of Evidence 702 permits a witness qualified as an expert to offer opinion testimony if “(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.” As the Supreme Court has held, it is the task of the trial judge to ensure that an expert’s testimony “both rests on a reliable foundation and is relevant to the task at hand.”
Daubert v. Merrell Dow Pharmaceuticals, Inc.,
In this case, the district court declined to hold a Daubert hearing and initially denied Pena’s motion to exclude the fingerprint evidence. On Day 6 of trial, Massachusetts State Trooper Kevin Halle gave extensive testimony about the ACE-V method, his training and experience using the method for fingerprint identification, and how he used the method in Pena’s case. He explained that after he had analyzed the partial latent print, compared it to the prints on Pena’s fingerprint card, and determined that it matched Pena’s left thumb print, he had two other troopers independently verify his findings. Those two troopers then testified as to their vеrification of the match.
Though Trooper Halle acknowledged that the Massachusetts State Police used no specific minimum number of points to confirm a fingerprint match, and the district court expressed some reservation about the reliability of the testimony on that basis, 3 the court ultimately decided to admit the testimony, noting that “the case law is overwhelmingly in favor of admitting fingerprint experts under virtually any circumstance.” Consequently, the court reasoned, the only way it would have considered excluding the testimony or giving a limiting instruction “is if there had been data, real evidence presented about the limitations of fingerprinting.” Instead, as the court acknowledged, Pena’s motion to exclude relied on “one article from the Fordham Law Review, and that’s not enough to carry the weight of the exclusion motion.”
The district court did not abuse its discretion. Numerous courts have found expert testimony on fingerprint idеntification based on the ACE-V method to be sufficiently reliable under
Daubert. See United States v. Baines,
B. Sufficiency of the Evidence
We review preserved challenges to sufficiency of the evidence de novo.
United States v. Azubike,
1. The Drug Charge 5
In his pro-se Supplemental Brief, Pena challenges the sufficiency of the evidence as to Count One of the indictment, which charged him with possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1). 6 Pena claims that the testimony of Ms. Rosado was “uncorroborated and unsubstantiated” and that “no other evidence showed that [he] possessed a firearm or any drugs, at any time at all.” According to Pena, the only other evidence relied upon by the government was his sudden flight from police. Viewing the evidence in the light most favorable to the prosecution, as we must, we find Pena’s argument unavailing.
*112 Ms. Rosado testified that on the date and time in question, she observed a man matching Pena’s general description 7 run across her backyard, reach into his right hip area, and make two separate throwing motions. She recountеd the same to officers searching the area minutes after the incident. The officers then found the cell phone, firearm, and plastic bag containing drugs along the flight path. Pena admitted the phone was his, and a fingerprint match was made as to the firearm. Based on this evidence, a rational jury could conclude beyond a reasonable doubt that Pena possessed the bag containing cocaine base before discarding it (along with the firearm and cell phone) while fleeing the police. 8
2. The Firearm Charge
Pena also argues that the government did not produce sufficient evidence to support his conviction on Count Two of the indictment, which charged him with violation of 18 U.S.C. § 924(c) (“Section 924(c)”). Title 18 U.S.C. § 924(c)(1)(A) prescribes a mandatory minimum sentence for any person who “during and in relation to any ... drug trafficking crime ... uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm.” We focus here on the possession offense.
9
To obtain a conviction, the government must prove that the defendant: 1) committed a drug trafficking crime; 2) knowingly possessed a firearm; and 3) possessed the firearm in furtherance of the drug trafficking crime.
United States v. Marin,
To prove that a defendant possessed a firearm “in furtherance” of the predicate drug crime, the government must show a sufficient nexus between the firearm and the drug crime such that the firearm advances or promotes the drug crime.
Marin,
In this case, each of these factors supports a conclusion that Pena possessed the gun “in furtherance of’ the drug crime. The .357 Magnum was loaded, and there was circumstantial evidence that Pena was carrying both it and the drugs on his person.
Cf Grace,
In addition to this evidence, the government presented evidence that could lead a rational jury to infer that Pena was carrying the firearm to protect his drugs and drug proceeds, a purpose that we have found establishes the required nexus between the drugs and the firearm.
Grace,
This evidence was sufficient to convince a rational jury beyond a reasonable doubt that Pena possessed the .357 Magnum “in furtherance of’ a drug trafficking crime.
C. Other Matters
In his pro-se Supplemental Brief, Pena mounts a potpourri of arguments, none of which were raised below. We thus briefly consider each, reviewing only for plain error.
United States v. Garcia-Carrasquillo,
First, Pena argues that the court’s instruction on reasonable doubt confused jurors and allowed the jury to return a cоnviction based on a finding that Pena was “probably guilty” rather than guilty beyond a reasonable doubt. Pena cites only a small portion of the court’s reasonable doubt instruction, which comprises over two pages of the trial transcript. In viewing the instruction as a whole, we find that it did not mislead the jury as to the government’s burden of proof. The instruction made it eminently clear that the *114 jury had to find Pena guilty beyond a reasonable doubt.
Pena also contends that the court erroneously instructed the jury with regard to the term “use,” citing
Bailey v. United States,
While the court did, in fact, use the term “use” once in the context of its instruction on the “in furtherance of’ element, “use” of a firearm was not an issue in this case, and in any event the court’s use of that term did not prеjudice Pena. There was ample evidence that Pena possessed a firearm in furtherance of the drug crime, and even if the jury thought it had to find “use,” that would have been a benefit not a detriment to Pena. 11
Finally, Pena argues that he was improperly sentenced as a crack offender, attempting to draw a distinction between the terms “crack” and “cocaine base,” which were used somewhat interchangeably by the court and the govеrnment at trial and sentencing. However, for the purpose of the statute under which Pena was sentenced, 21 U.S.C. § 841(b)(l)(B)(iii),
12
the distinction between crack and cocaine base is meaningless. Unlike the Sentencing Guidelines, 21 U.S.C. § 841(b) does not define “cocaine base,” and we have held that the term, as used in the statute, includes
all
forms of cocaine base, including but not limited to crack.
United States v. Richardson,
III.
For the reasons stated above, we affirm Pena’s conviction and sentence.
Affirmed.
Notes
. At trial, the jury heard testimony that the street value of that amount of cocaine base, packaged in that fashion, would be close to $2,100.
. We also briefly consider claims of error which Pena raises in his pro-se Supplemental Brief regarding the court’s charging instructions on reasonable doubt and the elements of the offenses as well as the identification of the drug type as crack for purposes of sentencing.
. The court also expressed concern about "the lack of uniform standards, the problem that the proficiency rates, error rates are basically determined without a controlled group" and the fact that "no one has ever tested the premise of uniqueness.”
. Pena also argues that the district court erroneously shifted to him the burden of refuting the reliability of the expert testimony. Though somewhat vague, Pena’s argument appears to be that once the trial judge acknowledged the questiоnable nature of the evidence, she “abdicated her role” by not holding a Daubert hearing and instead requiring Pena to produce data and experts to demonstrate why the evidence should not be admitted. This argument also fails.
A district court does not abuse its discretion by dispensing with a
Daubert
hearing if no novel challenge is raised.
See Mitchell,
. The government argues that Pena waived his sufficiency challenge as to Count One by failing to renew his motion for judgment of acquittal at the close of evidence and by also failing to contest his conviction as to that count in his post-verdict motion. However, a review of the trial transcript indicates that Pena appears to have renewed his motion after both parties rested, so his motion was not waived. Whatever the standard of review, Pena’s claim fails as there is more than sufficient evidence to support his conviction.
. In addition to challenging the sufficiency of the evidence, Pena appears to raise a separate argument that the police did not have grounds to stop or arrest him. Pena claims that the anonymous tip on which the Brock-ton Police were acting when they approached him did not exhibit sufficient indicia of reliability under
Florida v. J.L.,
. Ms. Rosado testified that the man she saw looked to be about twenty years old, with dark skin. She stated that he was chubby, had black hair in braids, and was wearing black pants and a white short-sleeve shirt. One of the officers testified that the defendant was wearing a white tee shirt and blue jeans — a distinction without a difference.
. The jury could also easily have concluded that the drugs were intended for distribution. The jury heard testimony that such a large amount (43.19 grams), packaged in individual sandwich bags and with a street value of over $2,100, would ordinarily be possessed by a dealer rather than an end user.
. Cоngress added the "possess[ion]” “in furtherance of” language to the statute in 1998 in response to
Bailey v. United States,
. In his pro-se Supplemental Briеf, Pena states that his counsel’s concession on this point contradicted his own position. He states that he "negates any inference whatsoever that suggests he threw the firearm and drugs allegedly recovered on [the day in question]." Though Pena denies that the firearm recovered by the police was ever in his possession, the fingerprint evidence taken from the firearm, the fact that the gun was found along the flight path, and the testimony of Ms. Rosado wеre sufficient to allow a reasonable *113 jury to conclude that Pena had, in fact, been in possession of the revolver when initially stopped by police.
. Pena raises numerous additional challenges to the court's instructions as to each count, each of which is without merit. With regard to Count One, possession with intent to distribute, Pena contends that the district court defined "to possess" without defining "to distribute” or "trafficking.” It is unclear how the definition of trafficking is relevant to the elements of Count One, and the court did define the term "to distribute.” Pena next argues that the court constructively amended the indictment by using the term "crack” in the verdict slip when the indictment charged him with possession with intent to distribute "cocaine base.” Pena’s claim is incorrect because the verdict slip in fact uses the term "cocaine base,” not "crack.”
Additionally, Pena contends that the court gave the jury contradictory instructions аs to whether or not the government was required to prove what type of drug was possessed. Here, too, Pena is incorrect. The court specifically instructed the jury that the government must prove beyond a reasonable doubt that the substance actually possessed was cocaine base.
Regarding Count Two, Pena argues that the court failed to explain the first element of the Section 924(c) offense and to define the term "trafficking” within thаt element. Again, Pena’s claim is without foundation. The court did, in fact, explain that the first element of Count Two was that Pena committed a drug trafficking offense and further instructed that the crime of possessing cocaine base with intent to distribute charged in Count One was a "drug trafficking crime” for the purpose of the statute.
. Though the district court did not note the statute or its terms on the record at sentencing, the indictment specifically charged Pena with a violation of 21 U.S.C. § 841 (b)(l)(B)(iii), possession with intent to distribute "5 grams or more of a mixture or substance ... which contains cocaine base.”