United States v. Deangelo McLaurin

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4138

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DEANGELO MCLAURIN,

Defendant - Appellant.

No. 13-4139

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

NICHOLAS LOWERY,

Defendant - Appellant.

Appeals from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., District Judge. (3:11-cr-00111-RJC-DSC-1; 3:11-cr-00111-
RJC-DSC-2)

Argued: March 26, 2014 Decided: August 22, 2014

Before TRAXLER, Chief Judge, FLOYD, Circuit Judge, and HAMILTON,
Senior Circuit Judge.
No. 13-4138 affirmed in part, vacated in part, and remanded; No.
13-4139 affirmed by published opinion. Chief Judge Traxler
wrote the majority opinion, in which Senior Judge Hamilton
joined. Judge Floyd wrote a separate opinion concurring in part
and dissenting in part.

ARGUED: Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Asheville, North Carolina; Lawrence W. Hewitt,
GUTHRIE DAVIS HENDERSON & STATON, Charlotte, North Carolina, for
Appellants. William Michael Miller, OFFICE OF THE UNITED STATES
ATTORNEY, Charlotte, North Carolina, for Appellee. ON BRIEF:
Henderson Hill, Executive Director, FEDERAL DEFENDERS OF WESTERN
NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant
Deangelo McLaurin. Justin N. Davis, GUTHRIE DAVIS HENDERSON &
STATON, Charlotte, North Carolina, for Appellant Nicholas
Lowery. Anne M. Tompkins, United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

2
TRAXLER, Chief Judge:

Working with disgruntled drug couriers, defendants Deangelo

McLaurin and Nicholas Lowery devised a plan to rob a drug “stash

house.” As it turned out, the stash house never existed, and

the supposed drug couriers were undercover law enforcement

officers. McLaurin and Lowery were arrested and ultimately

convicted of various conspiracy and firearms charges. Finding

no reversible trial error, we affirm their convictions. As to

defendant McLaurin, however, we vacate his sentence and remand

for resentencing.

I.

On February 23, 2011, a confidential informant introduced

defendant McLaurin to undercover police officer Rolando Ortiz-

Trinidad of the Charlotte Mecklenburg Police Department. At the

meeting, McLaurin sold Officer Ortiz a .38 caliber revolver for

$200. At the end of the transaction, McLaurin told Ortiz that

he had a shotgun for sale as well. Officer Ortiz and McLaurin

then exchanged telephone numbers in order to contact each other

about future transactions. Two days later, Ortiz and McLaurin

met for a second transaction in which McLaurin sold Ortiz a

sawed-off shotgun for $150. Shortly thereafter, McLaurin called

Officer Ortiz and offered to sell him a third firearm.

Following the firearms transactions, the confidential

informant identified McLaurin as a potential target for a

3
reverse sting operation known as a home-invasion investigation

or a stash-house robbery. A home-invasion investigation is a

law enforcement technique in which law enforcement officers

identify targets who are ready, willing, and able to rob a drug

stash house and then provide them with the opportunity to commit

the crime. The officers who participate in this type of

undercover operation receive specialized training and employ

techniques to weed out individuals who are not inclined to

commit the robberies, including changing locations and

scheduling several meetings in advance of the planned robbery.

The purpose of these obstacles is to give targets the

“opportunity to not participate in this particular style of

robbery.” J.A. 144.

On March 9, 2011, the confidential informant introduced

McLaurin to two different undercover officers -- ATF Special

Agent Shawn Stallo and his partner Task Force Officer Ashley

Asbill (referred to together as the “Undercover Officers”).

This meeting was recorded on audio and video; McLaurin, the

confidential informant, and the Undercover Officers were present

at all times.

During the meeting, the Undercover Officers posed as

disgruntled drug couriers for a Mexican drug trafficking

organization (the Organization), and expressed their desire to

steal drugs from a stash house belonging to the Organization.

4
Agent Stallo told McLaurin that he regularly picked up cocaine

from various rental houses used by the Organization as stash

houses, and that he was looking for someone to rob one of these

stash houses. According to the cover story that Agent Stallo

told McLaurin, each stash house, when stocked, contained between

seven to nine kilograms of cocaine and was guarded by two armed

men; the Organization constantly changed which stash house held

the stock; Stallo picked up two kilograms of cocaine from a

stocked stash house about every 30 days, but would not learn the

address of such stash house until the day of the pick-up.

Stallo proposed to keep two kilograms of the stolen cocaine for

himself, while McLaurin and any others he recruited to help in

robbing the stash house could keep the balance because they

would be responsible for the “heavy lifting.” J.A. 148.

In response, McLaurin indicated that he was interested in

the robbery, assuring the Undercover Officers that he had

committed a similar robbery in the past. McLaurin also told the

Undercover Officers that he would have to obtain a firearm

before the robbery because he had recently sold his gun. When

discussing the type of firearm required for the job, McLaurin

indicated that he would need a large-caliber weapon. McLaurin

also explained that the job was “real big,” J.A. 342, and that

it would therefore take him three or four days to recruit others

to help him in the robbery.

5
 Consistent with his training, Agent Stallo made clear to

McLaurin several times during the meeting that he did not have

to go through with the robbery if he did not want to, including

telling McLaurin to take a few days to consider whether he

wanted to participate. If McLaurin still wanted to participate,

he was to call the confidential informant, who would then get in

touch with Stallo. McLaurin responded that he was “good with

it,” J.A. 151, assuring the Undercover Officers that he would be

in touch and that they would meet again.

A little over two weeks went by without the case agents

being able to contact the confidential informant to learn

whether McLaurin had expressed interest in the potential

robbery. As a result, Agent Stallo attempted to contact

McLaurin by telephone. McLaurin called back within minutes

after Stallo left a message, and the two agreed to meet the next

day, March 25, 2011, to discuss further plans for the robbery.

On the day of the meeting, McLaurin called Stallo and advised

him that he would be bringing along an associate -- codefendant

Nicholas Lowery -- who would assist in the robbery. The

Undercover Officers, McLaurin, and Lowery met in the parking lot

of a restaurant; the 45-minute-long meeting was again recorded

on audio.

During the meeting, McLaurin and Lowery discussed their

specific plans for the robbery. McLaurin stated that upon

6
entering the house, he would demand that everyone “get on the

ground, face down.” J.A. 193. Lowery added that he would

strike anyone who resisted with the butt of his gun or shoot

them in the leg if necessary. With respect to the need for

firearms, Lowery indicated that he had a gun on him then, see

J.A. 177 (Lowery patted himself and stated that he was “strapped

right now”), and that he had additional handguns at his

disposal. According to Lowery, the job potentially called for a

“K,” referring to an AK-47 rifle, because it was more powerful

and could “chop ligaments.” J.A. 177. When discussing the

cocaine that McLaurin and Lowery planned to steal, Lowery

explained in detail how he would distribute it, and he also

offered to help sell Agent Stallo’s share of the drugs.

During the discussion, Lowery stated that there were “three

things you gotta consider . . . when you do stuff. . . . Getting

killed, going to prison, or killing another motherf***er.” J.A.

360. Lowery continued, “And if you ain’t willing to accept

those consequences,” and McLaurin interjected, “Don't get

involved.” J.A. 360. At the conclusion of the meeting, Agent

Stallo reiterated that if McLaurin and Lowery did not want to go

through with the robbery, they should just forget about him and

the plan.

On April 6, 2011, the Undercover Officers again met with

McLaurin and Lowery and again recorded the meeting. The

7
Undercover Officers went over the details of the planned

robbery, and McLaurin and Lowery confirmed their commitment to

the plan. Lowery mentioned purchasing an assault rifle for the

robbery, characterizing the expenditure as an investment. In

discussing the specifics of the robbery, McLaurin reiterated

that his plan was to get everyone on the ground.

In the days following the meeting, Agent Stallo

corresponded with McLaurin nearly every day in calls or text

messages initiated by both parties. During the course of those

conversations, Agent Stallo told McLaurin that the robbery would

take place on April 11, and that he would call McLaurin to give

him the location. The Undercover Officers set up an initial

meeting at a gas station to confirm that McLaurin and Lowery had

the firearms and other tools necessary for the robbery and to

identify any other individuals that McLaurin and Lowery had

recruited to participate in the robbery. After the preliminary

meeting, the plan was to lead the group to a nearby storage

facility that was under law enforcement control so that they

could safely make the arrests.

On April 11, McLaurin and Lowery arrived at the gas station

as scheduled. When McLaurin and Lowery spoke with the

Undercover Officers, Lowery pointed to another vehicle parked

nearby and indicated that the individual in the car would join

in the robbery. The Undercover Officers then drove to the

8
storage facility, with McLaurin and Lowery following in their

car and the other individual trailing in the third car. The

Undercover Officers and McLaurin and Lowery entered the parking

lot, but the unknown participant drove past the storage

facility. When Lowery and McLaurin arrived, Agent Stallo

overheard Lowery on the telephone state, “[E]verything looks

good here. Everything’s looking cool.” J.A. 222.

Agent Stallo then asked McLaurin whether they had the

“tools,” meaning firearms, for the robbery or whether they had

to wait for the third individual. J.A. 223. McLaurin responded

that he thought Lowery had them. At that point, rather than

wait on the other participant, Agent Stallo initiated the

arrests of McLaurin and Lowery, concerned that either one of

them could relay a message to the other unknown individual.

Following the arrests, a search of McLaurin and Lowery’s

vehicle revealed a pair of pants, gloves, a bandana, and a

toboggan hat. Concerned that the guns were in the other

vehicle, Agent Stallo instructed the surveillance team to be on

the lookout for the suspected third participant and told them to

arrest him if they were able to make contact. Despite searching

with a helicopter and several additional officers, law

enforcement was unable to locate the third participant or his

vehicle.

9
 Following their arrests, both McLaurin and Lowery waived

their Miranda rights and agreed to speak with law enforcement.

McLaurin admitted that he was supposed to meet Agent Stallo that

day to “do a job and to make some money.” J.A. 416. After

providing several explanations of what the “job” entailed,

McLaurin eventually admitted that the plan was to go into a

house to get five to seven kilos of cocaine that they would then

sell. McLaurin also claimed that he did not have a gun,

asserting that although he asked Agent Stallo to get him a

firearm, he did not plan on using it. According to McLaurin,

rather than steal the cocaine, he planned to “go to the house

and ask the Mexicans to front him the seven bricks or the 7

kilos.” J.A. 429. McLaurin also initially denied possessing

and selling guns on February 23 and 25, 2011. Eventually,

however, he admitted to his participation in the transactions

but said that he found the pistol and sawed-off shotgun in the

woods.

In his statements to law enforcement, Lowery denied any

involvement in the planned robbery. Lowery acknowledged meeting

with Agent Stallo but asserted that he had no intention of going

through with the robberies and that he had told Stallo that he

would not participate. Lowery claimed that he was only

providing McLaurin a ride to the storage facility and denied any

10
knowledge of the other car that the Undercover Officers

suspected contained the firearms and the third participant.

McLaurin and Lowery were each ultimately charged with three

counts of conspiracy arising directly from the stash-house

sting: (1) conspiracy to interfere with commerce by threats of

violence, in violation of the Hobbs Act, 18 U.S.C. § 1951(a);

(2) conspiracy to possess with intent to distribute five or more

kilograms of cocaine, in violation of 21 U.S.C. §§ 841(b)(1)(A)

and 846; and (3) conspiracy to use or carry a firearm in

furtherance of a crime of violence and a drug trafficking

offense, in violation of 18 U.S.C. § 924(c). In addition to the

conspiracy counts, McLaurin was charged with two counts of

possession of a firearm by a convicted felon, and Lowery was

charged with one count of possession of a firearm by a convicted

felon, all in violation of 18 U.S.C. § 922(g)(1). McLaurin’s

felon-in-possession counts related to his possession of the .38

caliber pistol and sawed-off shotgun during the undercover

transactions with Officer Ortiz on February 23 and 25, 2011.

Lowery’s felon-in-possession count stemmed from his possession

of a .40 caliber pistol on July 28, 2010.

McLaurin and Lowery each moved to sever the

felon-in-possession counts from the conspiracy counts,

contending that the counts were unrelated. The district court

granted the motion with respect to Lowery but denied it with

11
respect to McLaurin. McLaurin and Lowery were tried together

before a jury on the remaining counts, and both relied primarily

on an entrapment defense. The jury rejected the defense and

convicted McLaurin and Lowery on all three conspiracy counts and

convicted McLaurin on both felon-in-possession counts. The

district court sentenced McLaurin to 151 months in prison and

Lowery to 168 months. These appeals followed.

II.

The Defendants first challenge the district court’s

instructions on their entrapment defense. “Although we review a

district court’s refusal to give a jury instruction for abuse of

discretion, we conduct a de novo review of any claim that jury

instructions incorrectly stated the law.” United States v.

Mouzone, 687 F.3d 207, 217 (4th Cir. 2012) (citation omitted),

cert. denied, 133 S. Ct. 899 (2013).

Entrapment is an affirmative defense consisting of “two

related elements: government inducement of the crime, and a lack

of predisposition on the part of the defendant to engage in the

criminal conduct.” Mathews v. United States, 485 U.S. 58, 63

(1988). Consistent with Mathews, the district court instructed

the jury that the elements of the defense were government

inducement and lack of predisposition, see J.A. 615, and the

court then explained the manner in which the defense operates:

12
 Thus, where a person has no previous intent or
purpose to violate the law, but is induced or
persuaded by law enforcement officers or their agents
to commit a crime, that person is a victim of
entrapment, and the law as a matter of policy forbids
that person’s conviction in such a case.

On the other hand, where a person already has the
readiness and willingness to break the law, the mere
fact that government agents provide what appears to be
a favorable opportunity is not entrapment.

For example, it is not entrapment for a
government agent to pretend to be someone else and to
offer either directly or through an informer or other
decoy to engage in an unlawful transaction.

If then, you should find beyond a reasonable
doubt from the evidence in the case that before
anything at all occurred respecting the alleged
offense involved in this case, the defendant was ready
and willing to commit a crime such as charged in the
indictment, whenever opportunity was afforded, and
that government officers or their agents did no more
than offer the opportunity, then you should find that
the defendant is not a victim of entrapment.

On the other hand, if the evidence in the case
should leave you with a reasonable doubt whether the
defendant had the previous intent or purpose to commit
an offense of the character charged, apart from the
inducement or persuasion of some officer or agent of
the government, then it is your duty to find the
defendant not guilty.

The burden is on the government to prove beyond a
reasonable doubt that the defendant was not entrapped.

J.A. 615–17. The Defendants do not challenge these

instructions; instead, they challenge the supplemental

instruction given after the jury requested clarification of the

term “inducement.”

13
 In response to the jury’s inquiry, the district court

instructed the jury that “inducement requires more than mere

solicitation by the government. Inducement is a term of art

necessitating government overreaching and conduct sufficiently

excessive to implant a criminal design in the mind of an

otherwise innocent party.” J.A. 925-26 (emphasis added). The

Defendants contend that the underlined language improperly

permitted the jury to reject the entrapment defense based on a

non-factual, value-laden determination that the government had

not overreached, without ever considering the core issue of an

entrapment defense – predisposition. See Mathews, 485 U.S. at

63 (describing predisposition as “the principal element in the

defense of entrapment” (internal quotation marks omitted)).

We find no error in the district court’s instruction. The

unobjected-to general entrapment instructions quoted above made

it clear to the jury that an entrapment defense consists of two

elements and that the defense could be rejected on either the

inducement prong or the predisposition prong. The supplemental

“inducement” instruction did not remove the predisposition

element from the jury’s consideration any more than the agreed-

upon general instructions did. Instead, the supplemental

instruction simply elaborated on the circumstances that can be

considered inducement, and did so in a manner consistent with

the law of this circuit. See United States v. Daniel, 3 F.3d

14
775, 778 (4th Cir. 1993) (“‘Inducement’ is a term of art: it

involves elements of governmental overreaching and conduct

sufficiently excessive to implant a criminal design in the mind

of an otherwise innocent party.”). Under these circumstances,

we reject the Defendants’ challenge to the jury instructions. 1

III.

The Defendants next contend that the district court erred

by admitting evidence of prior bad acts under Rule 404(b) of the

Federal Rules of Evidence. McLaurin contends the court erred by

admitting evidence that McLaurin had been convicted of common

law robbery in 2003, while Lowery contends the court erred by

admitting evidence that he possessed a firearm on July 28, 2010.

A.

Rule 404 generally prohibits evidence of other crimes or

bad acts to prove the defendant’s character and conduct in

accordance with his character. See Fed. R. Evid. 404(b)(1).

Such evidence, however, may be admissible “for another purpose,

such as proving motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake, or lack of

accident.” Fed. R. Evid. 404(b). Evidence of prior bad acts

1
Because we find no error in the jury instructions, we need
not consider the government’s assertion that Defendant Lowery
waived his right to challenge the issue by affirmatively
informing the district court that he had no objection to the
supplemental instruction.

15
under Rule 404(b) is admissible when the following criteria are

met:

(1) The evidence must be relevant to an issue, such as
an element of an offense, and must not be offered to
establish the general character of the defendant. In
this regard, the more similar the prior act is (in
terms of physical similarity or mental state) to the
act being proved, the more relevant it becomes. (2)
The act must be necessary in the sense that it is
probative of an essential claim or an element of the
offense. (3) The evidence must be reliable. And (4)
the evidence’s probative value must not be
substantially outweighed by confusion or unfair
prejudice in the sense that it tends to subordinate
reason to emotion in the factfinding process.

United States v. Queen, 132 F.3d 991, 997 (4th Cir. 1997).

Although it is not mentioned in the rule, there is no doubt

that proving predisposition is one of the purposes for which

bad-act evidence may be admissible. See, e.g., United States v.

Cervantes, 706 F.3d 603, 615 (5th Cir. 2013) (“[E]vidence of

prior acts intended to rebut an entrapment defense falls within

the ambit of Rule 404(b).”); United States v. Murzyn, 631 F.2d

525, 529 n.2 (7th Cir. 1980) (“[O]ne of the ‘other purposes’

mentioned in Rule 404(b) is proof of predisposition.”); United

States v. Burkley, 591 F.2d 903, 921 (D.C. Cir. 1978)

(“[P]roving predisposition in an entrapment case is not

explicitly mentioned in Rule 404(b) as a permissible basis for

introducing evidence of other crimes, but . . . it has always

been so considered.”).

16
 When applying Rule 404(b) to entrapment cases, however, the

nature of the defense and the burden it places on the government

must be kept in mind. “‘Predisposition’ refers to the

defendant’s state of mind before government agents make any

suggestion that he shall commit a crime,” United States v.

Osborne, 935 F.2d 32, 37 (4th Cir. 1991); the focus of the

predisposition inquiry is on “whether the defendant was an

‘unwary innocent’ or, instead, an ‘unwary criminal’ who readily

availed himself of the opportunity to perpetrate the crime.”

Mathews, 485 U.S. at 63. As the D.C. Circuit has explained,

proving disposition to commit a crime is very close to
proving “criminal propensity,” the very type of
prejudice against which the general prohibition on
admission of evidence of other crimes is directed. In
an entrapment case, however, the issue is precisely
whether the accused, at the time of the government
inducement, had a propensity to commit crimes of the
nature charged -- that is, whether he was predisposed
to do so.

Burkley, 591 F.2d at 922.

The assertion of an entrapment defense does not justify

admission of every bad act ever done by the defendant, see

United States v. Swiatek, 819 F.2d 721, 728 (7th Cir. 1987), but

distinguishing the unwary innocent from the unwary criminal

nonetheless requires a “searching inquiry,” United States v.

Hunt, 749 F.2d 1078, 1082 (4th Cir. 1984) (internal quotation

marks omitted). Predisposition is itself a broad concept, and a

broad swath of evidence, including aspects of the defendant’s

17
character and criminal past, is relevant to proving

predisposition. See Cervantes, 706 F.3d at 618 (explaining that

“the character of the defendant, including past criminal

history” is relevant to predisposition); United States v.

Khalil, 279 F.3d 358, 365 (6th Cir. 2002) (“[T]he character or

reputation of the defendant, including any prior criminal

record” is relevant to establishing predisposition); United

States v. Ramsey, 165 F.3d 980, 985 n.6 (D.C. Cir. 1999)

(defendant’s “past illegal conduct” is relevant to proving

predisposition); United States v. Thomas, 134 F.3d 975, 980 (9th

Cir. 1998) (“For the jury to find predisposition beyond a

reasonable doubt, it must consider the defendant’s character.”).

Given the range of evidence that is relevant to the

predisposition issue, certain bad-act evidence may be admissible

under Rule 404(b) in entrapment cases that would not be

admissible in cases where entrapment is not an issue. See

United States v. Duran, 596 F.3d 1283, 1299 (11th Cir. 2010)

(“[B]ecause similar acts used to demonstrate predisposition are

offered precisely to show propensity, they are more broadly

applicable, and their use is not subject to the normal

constraints of evidence admitted pursuant to Rule 404(b).”);

United States v. Van Horn, 277 F.3d 48, 57 (1st Cir. 2002)

(“[I]n situations where the defendant employs entrapment as a

defense to criminal liability, prior bad acts relevant to a

18
defendant’s predisposition to commit a crime are highly

probative and can overcome the Rule 404(b) bar.”); cf. Sorrells

v. United States, 287 U.S. 435, 451 (1932) (“[I]f the defendant

seeks acquittal by reason of entrapment he cannot complain of an

appropriate and searching inquiry into his own conduct and

predisposition as bearing upon that issue. If in consequence he

suffers a disadvantage, he has brought it upon himself by reason

of the nature of the defense.”). With these principles in mind,

we turn now to the specific claims raised on appeal.

B.

Lowery argues that the district court erred by permitting

the government to introduce evidence establishing that he

possessed a firearm on July 28, 2010, some eight months before

his involvement in the stash-house sting. Lowery’s possession

of a firearm on July 28, 2010, was the subject of Count 6 of the

indictment in this case, the count severed by the district court

prior to trial. When granting Lowery’s motion to sever, the

court concluded that there was no logical relationship between

the firearm count and the conspiracy counts, thus making joinder

improper.

At trial, Lowery suggested through his cross-examination of

Agent Stallo that Lowery’s statement in the March 25, 2011,

meeting that he was “strapped” was “bravado” or “just talk,”

J.A. 246-47, and that no evidence suggested that he actually

19
possessed a gun at such meeting. The government subsequently

argued that such questioning opened the door to evidence of

Lowery’s July 28 possession of a firearm. In overruling

Lowery’s objection to admitting the evidence, the district court

reasoned:

In light of the inchoate nature of this offense and
importance as to the defendant’s intent, whether he
was engaging in talk with the undercover officer . . .
and/or whether he intended to, and had the ability to
bring the kind of tools necessary to conduct a robbery
that was being discussed. I think it’s relevant.
It’s necessary.

J.A. 522. The district court therefore permitted the government

to establish Lowery’s possession of the firearm through the

testimony of Lowery’s former girlfriend, who saw him in

possession of the “distinctive” and “unusual” gun on the

relevant date, J.A. 554, and the testimony of a police officer

who conducted a traffic stop on July 28, 2010, and found the gun

when searching Lowery’s car.

We see no error in the district court’s ruling. In support

of his entrapment defense, Lowery argued that he lacked both the

predisposition to commit such a robbery and the intent to

actually carry it out. Evidence tending to prove that Lowery

had the ability to bring a necessary tool, such as a firearm, to

conduct the proposed stash-house robbery was relevant to the

question of Lowery’s predisposition to commit the robbery, and

Lowery’s prior possession of a firearm showed his familiarity

20
with and access to weapons. Moreover, the firearm that Lowery

possessed was a semi-automatic handgun with “two air ports on

top of the slide,” J.A. 554, and was distinctive enough to be

described as “unusual” by a police officer with twelve years of

law enforcement experience and eight years of military

experience. Given Lowery’s recorded statements that the planned

robbery called for the powerful weapons that could “chop

ligaments,” J.A. 177, Lowery’s possession of such a distinctive

weapon makes it more likely that he had the ability to provide

the kind of weapon that he believed would be necessary for the

task, and that he would be willing to use it.

Possession of a firearm, of course, is not the same crime

as armed robbery. To be admissible under Rule 404(b) to prove

predisposition, however, the past conduct need not be identical

to the crime charged. Rather, the conduct need only be “similar

enough and close enough in time to be relevant to the matter at

issue.” United States v. Lewis, 641 F.3d 773, 783 (7th Cir.

2011); see also United States v. Brand, 467 F.3d 179, 200 (2d

Cir. 2006) (“Predisposition evidence can be established by

evidence of a defendant’s past conduct; this past conduct should

be near enough in kind to support an inference that his purpose

included offenses of the sort charged; although it is not

necessary that the past conduct be precisely the same as that

for which the defendant is being prosecuted.” (internal

21
quotation marks omitted)). We believe the bad act at issue here

is similar enough to establish predisposition because it

involved Lowery’s knowing possession of a firearm, as the

success of the planned robbery depended on Lowery and McLaurin

being willing to sufficiently arm themselves. See Lewis, 641

F.3d at 783 (evidence of 1995 felon-in-possession conviction

properly admitted to prove predisposition to commit armed

robbery of purported stash house in 2007); cf. United States v.

Acosta, 67 F.3d 334, 339 (1st Cir. 1995) (in case where

defendant was charged with possession of a weapon by a felon,

evidence of prior drug-dealing by the defendant was relevant to

the question of predisposition). There is no doubt that the

first-person testimony was reliable, and it was also necessary,

given that the government bears the burden of proving

predisposition. See Queen, 132 F.3d at 997 (explaining that

evidence is “necessary” for purposes of Rule 404(b) if the

evidence “is probative of an essential claim or element of the

offense”). And while the evidence may have been damaging to

Lowery’s case, it was not unfairly prejudicial. See United

States v. Lentz, 524 F.3d 501, 525 (4th Cir. 2008). Under these

circumstances, we cannot say that the district court abused its

discretion by admitting the challenged evidence. See id.

(“Where the evidence is probative, the balance under Rule 403

should be struck in favor of admissibility, and evidence should

22
be excluded only sparingly.” (internal quotation marks

omitted)); United States v. Weaver, 282 F.3d 302, 313 (4th Cir.

2002) (“A district court will not be found to have abused its

discretion unless its decision to admit evidence under Rule

404(b) was arbitrary and irrational.”).

Moreover, even if the evidence were prohibited by Rule

404(b), the district court acted within its discretion by

concluding that Lowery opened the door to its admission. See,

e.g., United States v. Catano, 65 F.3d 219, 226 (1st Cir. 1995)

(“A district court may allow testimony on redirect which

clarifies an issue which the defense opened up on cross-

examination even when this evidence is otherwise

inadmissible.”). When Lowery suggested in his cross-examination

of Agent Stallo that Lowery’s assertion that he was carrying a

gun at the March 25 meeting was “just talk,” J.A. 247, and that

no evidence suggested that he actually possessed a gun at that

meeting, the district court did not err in permitting the

government to introduce the evidence of his prior possession of

a firearm. Lowery’s then-recent possession of a distinctive

handgun makes it less likely that his claim of carrying a gun at

the meeting and his talk of weapons that could chop ligaments

was mere bravado. Accordingly, we find no error in the district

court’s admission of evidence of Lowery’s prior possession of a

firearm.

23
 C.

McLaurin contends the district court violated Rule 404(b)

by admitting a judgment and commitment order establishing that

he had been convicted of common law robbery in 2003.

The district court initially excluded all of the

government’s proposed 404(b) evidence against McLaurin. The

court revisited its ruling, however, after the following

exchange during McLaurin’s cross-examination of Agent Stallo:

Q [McLaurin’s Counsel]. During that meeting you also
testified that –- something to the effect that Mr.
McLaurin indicated to you that he had committed a
robbery of a drug dealer in the past?

A [Agent Stallo]. Yes.

Q. With respect to that particular robbery of the drug
dealer, do you have any information that Mr. McLaurin
actually engaged in that type of conduct?

A. I mean his –- his verbal admission would be the
only thing.

Q. I understand that. So you indicated –- you
testified that Mr. McLaurin gave you that information.
However, do you have any proof -– with respect to that
particular crime –- any proof that Mr. McLaurin
committed that crime?

A. No, ma’am.

J.A. 254-55. The government argued that this line of

questioning left the jury with the misimpression that there was

no proof that McLaurin had previously committed a robbery.

Counsel for McLaurin, however, argued that she had carefully

limited her questions to whether Stallo had proof that McLaurin

24
had previously robbed drug dealers, which she contended did not

open the door to evidence of a common-law robbery that did not

involve drug dealers.

After reviewing the transcript of the questioning, the

district court agreed with the government’s position:

It does appear to the Court that that questioning
does alter the 404(b) analysis, making the excluded
evidence more relevant by establishing a greater
connection to the instant offense. The line of
questioning concerning “any information,” “any proof,”
I believe left the jury with the misimpression that
there wasn’t any proof, not just that the proof had
been excluded.

I don’t think counsel’s attempt to narrow the
question just to the robbery of a drug dealer was
sufficient to not leave that impression.

I think the jury as a result of the questioning
is left with the belief that there is no proof. I
don't believe the defendant should get the benefit of
excluded proof, and then be allowed to convey to the
jury that there is no proof.

J.A. 399. The district court therefore concluded that the

cross-examination “opened the door to the 404(b) evidence

previously excluded,” J.A. 399-400, and the court permitted the

government to introduce evidence of McLaurin’s 2003 robbery

conviction.

We again find no error in the district court’s ruling.

While McLaurin presses on appeal his view that his questions

were limited to whether there was proof that McLaurin had

previously robbed drug dealers, we are not convinced that the

jury could be expected to draw such a fine distinction. Counsel
25
asked about robbing drug dealers, but she also asked if there

was evidence that McLaurin had engaged in “that type of

conduct,” J.A. 254 (emphasis added), language the jury may well

have understood as a broader reference to robberies in general.

The district court was in the best position to determine the

effect of this line of questioning, see United States v. Blake,

571 F.3d 331, 348 (4th Cir. 2009) (whether questioning opened

the door to previously excluded evidence was a matter within the

district court’s discretion), and we cannot conclude that the

court abused its discretion by concluding that McLaurin opened

the door to the introduction of the challenged evidence. See

United States v. Canniff, 521 F.2d 565, 570 (2d Cir. 1975)

(“Despite the distinction between a conviction and a youthful

offender adjudication, it would be unfair to the government to

permit a defendant who had been adjudicated a youthful offender

to create the erroneous impression that he was lily-white by

implying to the jury, which cannot be expected to draw such fine

distinctions, that he had never committed any offense at all.”).

IV.

In a pretrial motion, McLaurin sought to sever his felon-

in-possession counts from his conspiracy counts on the ground

that such counts were improperly joined under Federal Rule of

Criminal Procedure 8. Alternatively, McLaurin sought severance

under Federal Rule of Criminal Procedure 14. The district court

26
denied the motion pretrial and again when McLaurin renewed it at

the close of the government’s evidence. On appeal, McLaurin

contends the district court erred by denying his misjoinder

motion under Rule 8 and his severance motion under Rule 14.

McLaurin contends that the misjoinder of the counts prejudiced

him because the felon-in-possession evidence would not have been

admissible at a separate trial on the conspiracy counts, and he

therefore asks us to vacate his conspiracy convictions and

remand for retrial on the conspiracy counts alone.

Rule 8 of the Federal Rules of Criminal Procedure

authorizes the joinder of multiple counts against a defendant

“if the offenses charged . . . are [(1)] of the same or similar

character, or [(2)] are based on the same act or transaction, or

[(3)] are connected with or constitute parts of a common scheme

or plan.” Fed. R. Crim. P. 8(a). We interpret the second and

third alternative prongs of this rule “flexibly, requiring that

the joined offenses have a logical relationship to one another.”

United States v. Cardwell, 433 F.3d 378, 385 (4th Cir. 2005)

(internal quotation marks omitted). Joined offenses have a

logical relationship to one another for Rule 8(a) purposes,

“when consideration of discrete counts against the defendant

paints an incomplete picture of the defendant’s criminal

enterprise.” Id.

27
 “We review de novo the district court’s refusal to grant

defendants’ misjoinder motion to determine if the initial

joinder of offenses . . . was proper.” United States v.

Mackins, 315 F.3d 399, 412 (4th Cir. 2003). “If the initial

joinder was not proper, however, we review this

nonconstitutional error for harmlessness, and reverse unless the

misjoinder resulted in no actual prejudice to the defendants. .

. .” Id. (internal quotation marks and emphasis omitted).

We find no reversible error in the district court’s

determination that the offenses were properly joined. 2 We agree

with the government that the conspiracy offenses and felon-in-

possession offenses are logically related. The same

confidential informant who introduced McLaurin to the undercover

officer who purchased the firearms also introduced McLaurin to

the Undercover Officers involved in the stash-house sting. The

evidence of the felon-in-possession counts establishes with

temporal congruity that McLaurin stood at the ready to consider

2
The district court’s analysis in its pre-trial denial of
the misjoinder motion did rest in part on a faulty factual
premise -- the district court believed that the confidential
informant who introduced McLaurin to the undercover officers
first proposed the stash-house robbery to McLaurin during the
firearm sale on February 25. As the trial evidence established,
however, the confidential informant was not present for the
February 25 transaction, and there was no conversation about the
stash-house robbery that day. This error provides no basis for
reversal, however, given our independent conclusion that the
counts were properly joined.

28
meeting about a criminal opportunity with anyone whom the

confidential informant suggested could provide him with such

opportunity. From the fact that McLaurin had experienced two

successful criminal transactions -- the gun sales -- that were

directly attributable to the same confidential informant’s

introduction, the jury could reasonably infer that McLaurin had

a higher level of trust in the Undercover Officers than he would

have had absent his history of prior successful outcomes with

criminal opportunities sent his way by the confidential

informant.

Moreover, the jury heard through the testimony of Agent

Stallo and the recorded meetings McLaurin’s statements that he

would need a gun for the robbery and that he had recently sold

his gun, which further establishes the logical relationship

between the charges. In short, McLaurin’s felon-in-possession

counts have a logical relationship to his conspiracy counts in

that they help paint the complete picture of McLaurin’s criminal

enterprise.

Even if we were to conclude that the counts were improperly

joined, we still would not reverse, because the misjoinder

caused no “actual prejudice” to McLaurin. Mackins, 315 F.3d at

412. As discussed above, the assertion of an entrapment defense

obligates the government to prove the defendant’s

predisposition, and proving predisposition is one of the “other

29
purposes” for which evidence of the defendant’s prior bad acts

may be admitted under Rule 404(b). In our view, the evidence of

McLaurin’s two firearm sales would have been admissible under

Rule 404(b) in a separate trial of the conspiracy charges, and

McLaurin therefore suffered no actual prejudice from any error.

See United States v. Lane, 474 U.S. 438, 450 (1986) (any error

in joinder of offenses and defendants was harmless where the

evidence of the improperly joined counts likely would have been

admissible under Rule 404(b) in a separate trial).

The evidence underlying McLaurin’s felon-in-possession

charges would be admissible under Rule 404(b) for largely the

same reasons that Lowery’s prior possession of a firearm was

admissible. McLaurin raised an entrapment defense, thus

requiring the government to prove his predisposition. The

evidence that McLaurin, just weeks before he joined in the

robbery plan, sold two weapons to (undercover) Officer Ortiz

tends to show that McLaurin was familiar with firearms and had

the ability to obtain the weapons necessary to carry out the

planned robbery.

Moreover, one of the weapons McLaurin sold to Officer Ortiz

was a sawed-off shotgun that McLaurin had hidden in his pants

leg. McLaurin showed Ortiz how to operate the shotgun and told

him that he could get a magazine for the gun at Wal-Mart, and

Ortiz testified that McLaurin seemed “comfortable” with the

30
weapon. J.A. 477. As courts have recognized, sawed-off

shotguns are “inherently dangerous and generally lacking

usefulness, except for violent and criminal purposes.” United

States v. Fortes, 141 F.3d 1, 6 (1st Cir. 1998) (internal

quotation marks omitted); accord United States v. Mobley, 687

F.3d 625, 631 (4th Cir. 2012) (sawed-off shotguns have no lawful

purpose), cert. denied, 133 S. Ct. 888 (2013); United States v.

Allegree, 175 F.3d 648, 651 (8th Cir. 1999) (same); cf. District

of Columbia v. Heller, 554 U.S. 570, 625 (2008) (“[T]he Second

Amendment does not protect those weapons not typically possessed

by law-abiding citizens for lawful purposes, such as short-

barreled shotguns.”). In our view, McLaurin’s possession of and

familiarity with an inherently dangerous weapon useful only for

violent, criminal purposes is highly probative of McLaurin’s

predisposition to engage in a very dangerous armed robbery. See

Lewis, 641 F.3d at 783 (evidence of felon-in-possession

conviction properly admitted to prove predisposition to commit

armed robbery of purported stash house).

Accordingly, we conclude that, in a separate trial on the

conspiracy charges, Rule 404(b) would have permitted the

introduction of the evidence underlying McLaurin’s felon-in-

possession charges. McLaurin thus suffered no actual prejudice

from the joinder of the counts, and any error in their joinder

31
is harmless. See Lane, 474 U.S. at 450; Mackins, 315 F.3d at

412.

Our conclusion in this regard also forecloses McLaurin’s

contention that the district court erred in denying his Rule 14

motion to sever the felon-in-possession counts. See Fed. R.

Crim. P. 14(a) (“If the joinder of offenses . . . in an

indictment . . . appears to prejudice a defendant or the

government, the court may order separate trials of counts . . .

or provide any other relief that justice requires.”). Even if

we were to assume that the district court abused its discretion

by denying McLaurin’s severance motion, see United States v.

Dinkins, 691 F.3d 358, 367 (4th Cir. 2012) (stating standard of

review), cert. denied, 133 S. Ct. 1278 (2013), the error did not

prejudice McLaurin, and reversal is not required, see United

States v. Acker, 52 F.3d 509, 514 (4th Cir. 1995) (reversal

under Rule 14 is required only if the defendant shows that

requiring him to defend against the joined offenses in the same

trial resulted in “clear prejudice”). We therefore reject

McLaurin’s challenges to the joinder of the felon-in-possession

charges with the conspiracy charges.

Contrary to McLaurin’s arguments, this court’s decision in

United States v. Hawkins, 589 F.3d 694 (4th Cir. 2009), does not

compel us to conclude otherwise. In Hawkins, we held that the

district court erred by denying the defendant’s motion to sever

32
a felon-in-possession charge from an unrelated carjacking

charge, concluding that the offenses were not of the “same or

similar character” under Rule 8(a). See id. at 704. As we

explained, “[w]hile the offenses all involved firearms, albeit

different firearms, nothing ties them together except the

defendant. There are no additional factors which indicate the

offenses were ‘identical or strikingly similar.’” Id. We

concluded that the joinder error was not harmless because the

evidence supporting the felon-in-possession charge “would have

been only marginally relevant, if relevant at all,” to the

remaining charges and therefore would not have been admissible

had separate trials been conducted. Id. at 705.

As noted above, Rule 8(a) provides multiple bases for the

joinder of charges against a single defendant. The Hawkins

court’s conclusion that, based on the facts of that case, the

joined charges were not “of the same or similar character,” Fed.

R. Crim. P. 8(a), does not preclude us from concluding, on

different facts, that the charges joined in this case have a

logical relationship and thus “are connected with or constitute

parts of a common scheme or plan,” id. Likewise, that the error

in Hawkins was not harmless does not prevent us from concluding

otherwise in this case. Because the defendant in Hawkins did

not assert an entrapment defense, his predisposition was not at

issue. As previously discussed, the assertion of an entrapment

33
defense renders a wider range of bad-act evidence admissible

under Rule 404(b) than might otherwise be the case.

V.

Finally, we turn to McLaurin’s challenge to his sentence.

McLaurin argues that the district court erred by accepting the

PSR’s calculation of his criminal history category.

Specifically, McLaurin contends the PSR erroneously assessed a

total of three criminal history points for two 2003 common law

robbery convictions, because McLaurin committed such robberies

at age sixteen. McLaurin contends the error increased his

sentencing range under the United States Sentencing Guidelines

from 121 to 151 months’ imprisonment to 151 to 188 months’

imprisonment. McLaurin admits that he did not object to the

PSR’s calculation of his criminal history category below, and

therefore, we review only for plain error. See Fed. R. Crim. P.

52(b).

To obtain relief under plain-error review, McLaurin must

first establish that “the district court erred, that the error

was plain, and that it affected his substantial rights. Even

when this burden is met, we have discretion whether to recognize

the error, and should not do so unless the error seriously

affects the fairness, integrity or public reputation of judicial

proceedings.” United States v. Aidoo, 670 F.3d 600, 611 (4th

Cir. 2012) (citation and internal quotation marks omitted).

34
In the sentencing context, the third prong of the plain-error

standard is satisfied if there is “a non-speculative basis in

the record to conclude that the district court would have

imposed a lower sentence upon the defendant but for the error.”

United States v. Knight, 606 F.3d 171, 180 (4th Cir. 2010).

The government concedes that there was error in the

calculation of McLaurin’s criminal history that increased

McLaurin’s advisory sentencing range, and it does not dispute

that the error was plain. As to the third prong, the transcript

of the sentencing hearing provides a non-speculative basis for

us to conclude that the district court would have given McLaurin

a lower sentence than 151 months’ imprisonment had it known that

McLaurin’s correctly calculated sentencing range under the

advisory Guidelines was 121 to 151 months’ imprisonment. The

district court, through several comments at sentencing, made it

clear that it was very troubled by the 151-188 month Guidelines

range, in that the sentencing range was driven by the fictitious

weight of the fictitious drugs contained in the fictitious stash

house. These concerns, when considered along with the district

court’s decision to sentence McLaurin at the low end of the

Guideline range it believed to be applicable, provide a non-

speculative basis for concluding that the district court would

have imposed a sentence of less than 151 months had the

Guidelines range been properly calculated. And because we

35
believe that allowing this error to stand would seriously affect

the fairness, integrity or public reputation of judicial

proceedings, we exercise our discretion to correct the plain

error in calculating McLaurin’s Guidelines’ range by vacating

his sentence and remanding for resentencing.

VI.

Accordingly, for the foregoing reasons, we hereby affirm

the convictions of McLaurin and Lowery, but we vacate McLaurin’s

sentence and remand for resentencing consistent with this

opinion.

No. 13-4138 AFFIRMED IN PART,
VACATED IN PART, AND REMANDED

No. 13-4139 AFFIRMED

36
FLOYD, Circuit Judge, concurring in part and dissenting in part:

I agree with the majority’s opinion except as to Part IV,

in which it concludes that the district court did not err in

joining McLaurin’s felon-in-possession counts with his

conspiracy counts. Federal Rule of Criminal Procedure 8(a)

allows “very broad joinder” such that “joinder is the rule

rather than the exception.” United States v. Hawkins, 589 F.3d

694, 700 (4th Cir. 2009) (quoting United States v. Mackins, 315

F.3d 399, 412 (4th Cir. 2003); United States v. Armstrong, 621

F.2d 951, 954 (9th Cir. 1980)) (internal quotation marks

omitted). “Broad,” however, does not mean “unlimited.” Because

I believe that the district court overstepped Rule 8(a)’s

boundaries, I respectfully dissent.

I.

Pursuant to Rule 8(a), joinder of offenses is appropriate

when the offenses are (1) “of the same or similar character,”

(2) “based on the same act or transaction,” or (3) “connected

with or constitute parts of a common scheme or plan.” This

Court has interpreted Rule 8(a)’s second and third prongs to

allow joinder when “the joined offenses have a ‘logical

relationship’ to one another,” meaning that “consideration of

discrete counts against the defendant paints an incomplete

picture of the defendant’s criminal enterprise.” United States
v. Cardwell, 433 F.3d 378, 385 (4th Cir. 2005) (quoting United

States v. Hirschfeld, 964 F.2d 318, 323 (4th Cir. 1992)). This

Court reviews de novo the question of whether charges were

properly joined. Hawkins, 589 F.3d at 700.

The government contends that joinder was proper because

McLaurin’s felon-in-possession and conspiracy counts were “based

on the same act or transaction” and were “connected with or

constitute[d] parts of a common scheme or plan.” In support of

this argument, the government points out that the confidential

informant who introduced McLaurin to the undercover agent for

the purpose of the firearms sales underlying the felon-in-

possession charges also introduced him to Special Agent Shawn

Stallo, the undercover agent who proposed the stash house

robbery. The government also avers that “law enforcement

identified McLaurin as a target for the home invasion

investigation, at least in part, as a result of McLaurin’s two

firearms sales to the undercover officer.” In sum, the

government argues that “[b]ecause the story of McLaurin’s role

in the home invasion investigation begins with the two firearms

sales, the district court correctly concluded that the felon-in-

possession counts were logically related to the conspiracy

counts.”

The government made a similar argument that two charges

were logically related because they stemmed from a single law

38
enforcement investigation in United States v. Cardwell. In that

case, this Court considered whether the lower court erred in

joining a felon-in-possession count with counts related to an

attempted murder for hire. Law enforcement officials found the

firearm that was the basis for the felon-in-possession charge

when they arrested the defendant for the planned murder. 433

F.3d at 383-84. The government contended that the counts were

logically related because “the firearm count was based on the

seizure of the [gun] during the investigation of the murder-for-

hire-scheme.” Id. at 386 (alteration in original) (internal

quotation marks omitted). The Court rejected the government’s

argument and concluded that the discovery of the gun during the

murder-for-hire investigation established only a temporal link

between the felon-in-possession and murder-for-hire counts,

which was insufficient to create a logical relationship between

the crimes. Id. (“A contrary holding would effectively read

Rule 8(a) to allow limitless joinder whenever the charge

resulted from the fruits of a single investigation.”). However,

the Court ultimately found that the district court had properly

joined the counts due to “additional facts.” Id. at 387

(emphasis omitted). Specifically, after officers arrested the

defendant for the attempted murder, he stated that he would have

used the gun to shoot them if he had known they were about to

arrest him. Id. at 384, 387.

39
 Cardwell establishes that a relationship between the law

enforcement investigations into two crimes does not render those

crimes logically related under Rule 8(a). The government’s

contention that law enforcement officials identified McLaurin as

a target for a home-invasion investigation due to the firearm

sales is therefore beside the point. Accordingly, the only

remaining link between the felon-in-possession counts and the

conspiracy counts is their temporal proximity, and, as I note

above, Cardwell makes it clear that a temporal link between

charges does not make joinder appropriate unless “additional

facts” counsel otherwise. See also Hawkins, 589 F.3d at 704

(“[A] mere temporal connection is not sufficient to establish

the propriety of joinder.”).

The majority brings up two additional considerations in

support of its conclusion that McLaurin’s felon-in-possession

charges are logically related to his conspiracy charges. First,

the majority contends that “[f]rom the fact that McLaurin had

experienced two successful criminal transactions—the gun sales—

that were directly attributable to the same confidential

informant’s introduction, the jury could reasonably infer that

McLaurin had a higher level of trust in the Undercover Officers

than he would have had” otherwise. Ante at 28-29. However, I

cannot discern how this potentiality renders the felon-in-

possession and conspiracy counts logically related. Although

40
McLaurin’s increased trust may have allowed law enforcement

officials to succeed in getting him to participate in the home-

invasion scheme, this consideration speaks only to the

connection between the law enforcement investigations into the

felon-in-possession and conspiracy counts. Cardwell therefore

renders this point irrelevant to the Rule 8(a) calculus.

Second, the majority points out that McLaurin told Special

Agent Stallo that he needed a new firearm to use during the home

invasion, presumably because he sold his only guns during the

controlled buys that resulted in the felon-in-possession

charges. Ante at 29. If anything, this fact renders the

conspiracy and felon-in-possession counts less related because

the firearms sales prevented McLaurin from using those weapons

in furtherance of the home invasion. Because these additional

considerations do not draw a logical connection between the

conspiracy and felon-in-possession counts, I would hold that the

district court should not have joined them.

II.

The fact that the district court erred in joining

McLaurin’s felon-in-possession and conspiracy counts does not

end the inquiry. Misjoinder warrants reversal only if it

“affects substantial rights,” meaning it “result[ed] in actual

prejudice because it had substantial and injurious effect or

41
influence in determining the jury’s verdict.” Hawkins, 589 F.3d

at 704 (quoting United States v. Lane, 474 U.S. 438, 449 (1986))

(internal quotation marks omitted). To determine whether

misjoinder resulted in actual prejudice, this Court considers

the following indicia of harmlessness:

(1) whether the evidence of guilt was overwhelming and
the concomitant effect of any improperly admitted
evidence on the jury’s verdict; (2) the steps taken to
mitigate the effects of the error; and (3) the extent
to which the improperly admitted evidence as to the
misjoined counts would have been admissible at trial
on the other counts.

Id. at 700, 704 (quoting Mackins, 315 F.3d at 414). The

government will prevail if it proves that each of these elements

weigh in favor of harmlessness. Id. at 700.

Under this Court’s precedent, a district court may give an

entrapment instruction only if “there is sufficient evidence

from which a reasonable jury could find entrapment.” United

States v. Hsu, 364 F.3d 192, 198-99 (4th Cir. 2004) (quoting

Mathews v. United States, 485 U.S. 58, 62 (1988)) (internal

quotation marks omitted). The district court held as a matter

of law that this case warranted an entrapment instruction, and

the government does not challenge that determination on appeal.

I therefore conclude that the evidence of McLaurin’s guilt on

the conspiracy counts was not overwhelming.

In addition to inquiring whether the evidence of guilt was

overwhelming, the first harmlessness factor also asks whether

42
the evidence had an effect on the jury’s verdict. McLaurin

contends that joinder affected the verdict because the

government used the facts of the February 25 gun possession to

argue against entrapment. Specifically, during its closing

argument, the government made the following statement:

[Defense counsel] told you in his closing that
this should be concerning to you, that government
agents go out and just make up crimes. No, what
should be concerning to you is if government agents,
law enforcement sat back and waited for crime to
happen.
What should be concerning to you is that members
of the general public are walking around with sawed
off shotguns shoved down their pants leg, selling them
to undercover police officers. That should concern
you.

In other words, the government drew a connection between

McLaurin’s predisposition to commit the home invasion and one of

his felon-in-possession charges. The government does not

attempt to argue that this portion of its closing argument had

no effect on the jury’s verdict. Instead, as I discuss in

greater detail below, the government contends that the evidence

underlying the felon-in-possession charges would have been

admissible to prove McLaurin’s predisposition even if the

district court had declined to join the offenses.

Turning to the second harmlessness factor, the district

court attempted to mitigate the effects of joining McLaurin’s

felon-in-possession and conspiracy counts by giving the

following limiting instruction:

43
 Each count and the evidence pertaining to it
should be considered separately. The case of each
defendant should be considered separately and
individually.
The fact that you may find one or both of the
accused guilty or not guilty of any of the crimes
charged, should not control your verdict as to any
other crime or other defendant.

This Court presumes that juries follow courts’ instructions.

See United States v. Chong Lam, 677 F.3d 190, 204 (4th Cir.

2012). This indicator of harmlessness therefore weighs against

a finding of prejudice.

The government’s argument that misjoinder did not prejudice

McLaurin relies heavily on the third harmlessness factor: the

extent to which the evidence regarding the felon-in-possession

charges would have been admissible at a separate trial on the

conspiracy charges. According to the government, Federal Rule

of Evidence 404(b) would allow admission of the facts underlying

the felon-in-possession charges because they speak to McLaurin’s

predisposition to commit the stash house robbery. Specifically,

the government argues that the evidence “shows that McLaurin had

access to the tools required to complete the robbery” and

therefore serves to “rebut his entrapment defense” by

demonstrating his ability and intent to follow through with the

home invasion.

When a defendant raises an entrapment defense, the

government may demonstrate predisposition through evidence that

44
the defendant committed similar crimes in the past. See United

States v. Tanner, 61 F.3d 231, 238 (4th Cir. 1995) (“[The

defendant] demonstrated his predisposition to [distribute a

drug] over and over again, through his pattern of illegal sales

of various drugs over many years.”); see also United States v.

Abulhawa, 833 F.2d 1006 (4th Cir. 1987) (unpublished table

decision) (“It is clear that the government is permitted broad

latitude under Rule 404(b) to introduce evidence of relevant

prior acts once a defendant has raised a claim of entrapment

thereby putting into issue his predisposition to commit the

crimes with which he is charged.”). As the Second Circuit

explained, “this past conduct should be ‘near enough in kind to

support an inference that his purpose included offenses of the

sort charged;’ although it is not necessary that the past

conduct be precisely the same as that for which the defendant is

being prosecuted.” United States v. Brand, 467 F.3d 179, 200

(2d Cir. 2006) (quoting United States v. Harvey, 991 F.2d 981,

994 (2d Cir. 1993)). The key inquiry in these cases, therefore,

is whether the defendant’s past conduct is similar enough to the

charged crime to render the evidence probative of

predisposition.

Both the majority and the government cite numerous cases

from our sister circuits that illustrate the degree of

similarity required to render past conduct indicative of

45
predisposition to commit the charged crime. For example, in

United States v. Cervantes, 706 F.3d 603, 616 (5th Cir. 2013),

the Fifth Circuit concluded that the defendant’s prior

participation in an attempted home invasion was similar enough

to the charged conspiracy to commit an armed home invasion to

weigh on his predisposition. Other courts have viewed only

comparably similar prior acts as probative of the defendant’s

predisposition in entrapment cases. See United States v.

Brannan, 562 F.3d 1300, 1307-08 (11th Cir. 2009) (evidence that

defendant had engaged in sexual acts at a wildlife refuge

sufficiently similar to charged offenses of indecent exposure

and public lewdness at the same wildlife refuge); United States

v. Abumayyaleh, 530 F.3d 641, 650 (8th Cir. 2008) (convictions

for receiving a stolen firearm and being a felon in possession

of a firearm sufficiently similar to charge for being a felon in

possession of a firearm); Brand, 467 F.3d at 199-200 (evidence

that the defendant possessed child pornography and child erotica

sufficiently similar to charged crimes related to sexual acts

with children); United States v. Van Horn, 277 F.3d 48, 57-58

(1st Cir. 2002) (prior burglary of an explosives depot

sufficiently similar to charged possession of explosives);

United States v. Goodapple, 958 F.2d 1402, 1406-07 (7th Cir.

1992) (evidence that the defendant had engaged in drug

transactions sufficiently similar to charged distribution of and

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possession with intent to distribute controlled substances).

The sole outlier is United States v. Acosta, in which the First

Circuit concluded, without explanation, that the defendant’s

seemingly irrelevant prior drug dealing was “properly made known

to the jury” during his trial on two felon-in-possession

charges. 67 F.3d 334, 339 (1st Cir. 1995) (discussing the merit

of the defendant’s entrapment defense).

The case that comes closest to allowing evidence of gun

possession to demonstrate predisposition to commit an armed

crime is United States v. Lewis, 641 F.3d 773 (7th Cir. 2011),

which concerned counts stemming from a home-invasion

investigation similar to the one at issue in this case. In

Lewis, the Seventh Circuit determined that the court below had

not erred in admitting evidence of the defendant’s prior

convictions for (1) being a felon in possession of a firearm and

(2) theft involving a home invasion. Id. at 779, 783. The

district court allowed the evidence because, together, the two

prior convictions showed “a pattern of behavior by someone who

has an intent, first, to use a firearm unlawfully, and,

secondly, to enter into a residence and commit theft.” Id. at

783 (internal quotation marks omitted). Nothing in the Seventh

Circuit’s opinion indicates that the court would have reached

the same conclusion if the lower court had admitted the felon-

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in-possession conviction without also admitting the theft

conviction.

When I compare the instant case to Lewis and the other

entrapment cases that I cite above, I am compelled to draw the

conclusion that a felon-in-possession charge is not similar

enough to a home-invasion conspiracy to render the former crime

indicative of predisposition to commit the latter crime. In a

typical case, the only similarity between conspiracy to commit

an armed home invasion and possession of a firearm is the fact

that both crimes involve firearms. This Court has made it clear

that the presence of weapons does not render two crimes similar

enough to warrant admitting evidence of one crime at a trial for

the other. In United States v. Hawkins, the Court considered

whether the misjoinder of a defendant’s carjacking and felon-in-

possession charges was harmless. 589 F.3d at 704-07. The Court

concluded that the firearm possession was “only marginally

relevant, if relevant at all,” to the carjacking counts in light

of the fact that the only thing tying the crimes together was

the use of different firearms. Id. at 705. The Court ruled

that the felon-in-possession evidence would be inadmissible

under Rule 404(b) at a separate trial on the carjacking counts.

Id.

I acknowledge that Hawkins did not involve an entrapment

defense. However, this distinguishing factor does not alter my

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conclusion that, like the felon-in-possession evidence at issue

in Hawkins, evidence of McLaurin’s firearms possession would be

inadmissible at a separate trial on his remaining charges. *

There is a fine line between evidence showing predisposition

(which Rule 404(b) allows) and evidence showing criminal

propensity (which Rule 404(b) prohibits). The evidence

underlying McLaurin’s felon-in-possession charges undoubtedly

falls into the latter category. It requires quite a logical

leap to conclude that a felon is predisposed to conspire to rob

a drug stash house simply because he possessed and sold two

firearms, even when one of those firearms was a sawed-off

shotgun. In my view, Rule 404(b) does not permit such an

attenuated connection between a prior bad act and the alleged

crime at issue. A contrary finding would veer dangerously close

to interpreting Rule 404(b) in a way that gives the government

unlimited power to use evidence of prior crimes whenever a

*
I would not reach the same conclusion under an abuse-of-
discretion standard of review. Although I believe that the law
does not support admitting evidence of McLaurin’s firearms
possession to prove his predisposition to commit the home
invasion, concluding that it does so is not arbitrary or
irrational. See United States v. Moore, 27 F.3d 969, 974 (4th
Cir. 1994) (explaining that a district court abuses its
discretion only when it acts “arbitrarily or irrationally”). For
this reason, I join Part III.B of the majority’s opinion, which
concludes that the district court did not abuse its discretion
by admitting evidence of Lowery’s firearm possession pursuant to
Rule 404(b).

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defendant raises an entrapment defense. See, e.g., Acosta, 67

F.3d at 339 (reaching the questionable conclusion that evidence

of the defendant’s drug dealing spoke to his propensity to

possess firearms because “drug dealing is often associated with

access to weapons”). This is precisely the type of trial-by-

character that Rule 404(b) aims to prevent.

III.

I would hold that district court erred in joining

McLaurin’s conspiracy charges with his felon-in-possession

charges. Because this error was not harmless, I would vacate

McLaurin’s conviction on the conspiracy counts and remand for

retrial.

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