                             PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-4108


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

CHARLES ROBERT BAREFOOT, JR.,

                Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (5:05-cr-00166-BO-1)


Argued:   March 20, 2014                   Decided:   June 9, 2014


Before WILKINSON, KING, and FLOYD, Circuit Judges.


Affirmed in    part,   reversed  in   part,  and   remanded with
instructions by published opinion.        Judge King wrote the
opinion, in which Judge Wilkinson and Judge Floyd joined.


ARGUED:   Joseph  Edward   Zeszotarski,  Jr.,   GAMMON,  HOWARD,
ZESZOTARSKI, PLLC, Raleigh, North Carolina, for Appellant. Seth
Morgan Wood, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee.     ON BRIEF:   Thomas G. Walker,
United States Attorney, Jennifer P. May-Parker, Assistant United
States Attorney, Kristine L. Fritz, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
KING, Circuit Judge:

     Charles Robert Barefoot, Jr., appeals the February 6, 2013

judgment    of   conviction   entered        against    him    by   the    district

court, in conformance with the jury’s verdict, on all six counts

of a 2006 Superseding Indictment stemming from several instances

of criminal conduct that Barefoot was accused of undertaking

between October 2001 and June 2002.              Barefoot also appeals the

180-month sentence of imprisonment imposed by the court on his

various    convictions.       As   described     in     particular    below,      we

affirm Barefoot’s convictions on Counts One through Four of the

Superseding Indictment, but we reverse his convictions on Counts

Five and Six.      Nevertheless, because the latter two convictions

did not materially affect his sentence — which was otherwise

properly    calculated    —   we   do   not    remand    for    Barefoot     to   be

resentenced.



                                        I.

                                        A.

     Acting on information supplied by a confidential informant

to the Bureau of Alcohol, Tobacco and Firearms (the “ATF”), a

deputy     of    the   Johnston    County,      North     Carolina        Sheriff’s

Department stopped Barefoot’s van in traffic during the morning

of July 19, 2002.        The deputy searched the van with Barefoot’s



                                        2
consent, finding two loaded semiautomatic handguns beneath the

driver’s seat.

        Not   quite   two    hours     later,   the    ATF   executed          a   search

warrant at Barefoot’s residence, where they discovered component

materials for explosives, Ku Klux Klan clothing and propaganda,

and twenty-five firearms (predominantly shotguns and rifles) in

proximity to more than four thousand rounds of ammunition.                                A

concurrent search of the house where Barefoot’s son, Daniel,

lived     with    several     others,    turned       up   two    Kinestik         binary

explosive      cartridges     wrapped     in    newspaper        and    stored      in    a

freezer.         Daniel,    eighteen    years   old    and   a    Klansman         in    his

father’s group, told federal agents that Barefoot had given him

the explosives, which other residents referred to as “liquid

dynamite.”

       On August 20, 2002, Barefoot was indicted in the Eastern

District of North Carolina on a single count of possessing a

firearm while subject to a domestic violence restraining order,

in violation of 18 U.S.C. § 922(g)(8).                 The predicate order was

entered in state court in Johnston County after the presiding

judge found that Barefoot, on March 15, 2002, had held a 9mm

pistol to the head of his wife, Sharon, and threatened to kill

her.     Barefoot pleaded guilty to the federal indictment pursuant

to an agreement with the government by and through the United

States    Attorney     for    the    Eastern    District     of        North   Carolina

                                          3
(referred to in the agreement as the “USA-EDNC”).                   Paragraph 4

thereof provided, in pertinent part:

        The Government agrees:

                                          * * * *

        c.   That the USA-EDNC will not further prosecute the
        Defendant for conduct constituting the basis for the
        Indictment; [and]

                                          * * * *

        f.   That   the  USA-EDNC   agrees  not  to   use  any
        information provided by the Defendant pursuant to this
        agreement to prosecute him for additional crimes,
        except for crimes of violence[.]

Memorandum of Plea Agreement, United States v. Barefoot, No.

5:02-cr-00219-01 (E.D.N.C. Jan. 21, 2003), ECF No. 39 (the “Plea

Agreement” or the “Agreement”). 1

     The “information provided by the Defendant” specified in

Paragraph         4.f   referred    to   Barefoot’s   obligation   to     “disclose

fully       and    truthfully      in    interviews   with   Government    agents,

information concerning all conduct related to the Indictment and

any other crimes of which the Defendant has knowledge.”                       Plea

Agreement ¶ 2.h.          As the result of their inquiry into Barefoot’s

activities, the ATF and FBI had come to suspect him of a number

of crimes.         Eyewitnesses had reported Barefoot in possession of


        1
       The Plea Agreement is found at J.A. 57-64.     (Citations
herein to “J.A. ___” refer to the contents of the Joint Appendix
filed by the parties to this appeal.)



                                             4
a thirty-pound homemade bomb, and the agents were informed that

local authorities had investigated Barefoot for alleged threats

against    the   Sheriff’s      Department     and    other      law   enforcement

agencies.

     The district court accepted Barefoot’s guilty plea at a

hearing on January 21, 2003, after which the debriefing mandated

by the    Plea   Agreement     took   place.        There,      Barefoot    admitted

having    obtained      the   Kinestik   cartridges        in    exchange     for   a

hunting   dog.       Barefoot     also   recounted     a     meeting       with   Glen

Gautier, Michael Brewer, and Mark Denning.                 The men had convened

at Barefoot’s home one evening during the late summer of 2001 to

discuss a “problem” with Lawrence Petit, a fellow Klansman in

coastal Carteret County, North Carolina, whom Brewer had branded

an informant.     J.A. 70.

     After considerable deliberation, the group resolved to have

Petit moved inland to Robeson County, or, failing that, to “get

rid of him.”      J.A. 71.     Barefoot permitted the others to use his

van, and he lent Gautier two firearms.               The trio returned a few

hours later to inform Barefoot that Denning had shot and killed

Petit,    with    the    corpse   having     been     buried      in   a    hayfield

belonging to Gautier’s brother.              Gautier handed Petit’s wallet

to Barefoot as proof of death; Barefoot destroyed it with a

blowtorch.       At the time of Barefoot’s interview, Gautier and



                                         5
Denning    had    been       arrested   and       charged    with    the   murder,    and

Brewer was about to be.

     Barefoot unequivocally denied having made any bombs, and he

omitted all mention of a series of incidents in October 2001,

which began when Daniel and two Klan associates — Jonathan Avery

and Jonathan Maynard — stole more than thirty firearms from an

outbuilding.          The three thieves took their haul to Barefoot’s

residence,       where    Barefoot,        Sharon,     and    Gautier      assisted    in

wiping down the weapons to remove any fingerprints.                            The next

day, Barefoot and Gautier transported some of the firearms to an

area barn for safekeeping, and about ten or fifteen ultimately

made their way to Brewer for sale on consignment.

     On June 18, 2003, the district court sentenced Barefoot to

27 months in prison for his § 922(g)(8) conviction, granting him

credit for time served since his July 2002 arrest.                             Upon his

release from federal imprisonment on October 18, 2004, Barefoot

was charged and detained by state authorities in connection with

the Petit murder.

                                             B.

     While in state custody, Barefoot was again indicted by the

grand   jury     in    the    Eastern      District    of    North    Carolina.       The

operative Superseding Indictment, filed August 2, 2006, charged

Barefoot    in    Count       One   with    conspiracy       to     receive,   possess,

conceal, store, barter, sell, and dispose of stolen firearms,

                                             6
see 18 U.S.C. §§ 371, 922(j); in Count Two with the substantive

§ 922(j) offense; in Count Three with solicitation of another to

assist   in   damaging   and    destroying       by    explosive   the   Johnston

County Courthouse and Sheriff’s Office, part of which was leased

to the United States Department of Veterans Affairs, see id.

§§ 373(a), 844(f)(1), 844(i); in Count Four with receiving an

explosive (the Kinestik cartridges) with the intent that it be

used to kill, injure, or intimidate other persons and to damage

and destroy buildings, see id. § 844(d); in Count Five with a

misdemeanor    charge    of   improperly    storing       explosive   materials,

see id. §§ 842(j), 844(b); and in Count Six with distributing

explosive materials to an individual (Daniel) under twenty-one

years of age, see id. § 842(d)(1).

      At the outset of a motions hearing on February 14, 2007,

defense counsel apprised the district court that the judge in

the   state    murder    proceedings       had        expressed    concern    over

Barefoot’s mental condition.         Counsel had thus elected to retain

the services of a psychiatrist, who, after evaluating Barefoot,

opined that he was not competent to stand trial.                   Based on the

representations     before     it   and    on    its     own   observations    of

Barefoot’s demeanor, the court directed that he be delivered to

the custody of the Attorney General for examination.                      See 18

U.S.C. § 4241(b).



                                      7
      During a hearing on November 14, 2007, the district court

reviewed     the        report       of    the        government’s             mental     health

professionals,          who    diagnosed             Barefoot       as     suffering          from

delusional       disorder,         mixed     type      (persecutory            and     grandiose

delusions),       and     from      personality            disorder,      NOS        (antisocial

traits).     In accordance with the recommendation set forth in the

report, the court found Barefoot incompetent, and it recommitted

him   to   the    Attorney         General      to    determine       his      prospects      for

improvement.            See   18     U.S.C.         § 4241(d).           As     a     collateral

consequence      of     the   court’s        finding,        the    state       court    murder

charge     was     dismissed         on      December         6,     2007,          subject    to

reinstatement.

      On November 26, 2008, the district court convened another

hearing    to    decide       whether      Barefoot          should      be     involuntarily

medicated in an attempt to restore his competency.                                      Barefoot

appealed from the court’s ruling in the affirmative, and, on

February    9,     2010,      we    vacated         that    ruling       and    remanded       for

further consideration in light of our decision in United States

v. Bush, 585 F.3d 806 (4th Cir. 2009).                             Before the medication

question     could       be   resolved          on    remand,       however,          Barefoot’s

condition       was     determined         to        have    spontaneously             partially

remitted.       On March 15, 2011, without objection, the court found

that Barefoot had regained his competency to stand trial and

ruled that the case could proceed.

                                                8
        Prior to Barefoot’s competency having come into question,

he had moved the district court to dismiss the indictment as

violative of the Plea Agreement, and to suppress the statements

he    made       during     his    January       21,        2003      debriefing.            The    court

conducted a hearing on those motions on May 18, 2011, and, by

its    order        filed       August     22,    2011,          denied       them.         Barefoot’s

counsel          moved    for     reconsideration               on    February       21,     2012,    and

then,       on    March     8,    2012,     Barefoot            filed     a    pro     se    motion    to

represent himself at trial.                  See Faretta v. California, 422 U.S.

806,        832     (1975)        (recognizing              criminal           defendant’s          Sixth

Amendment right to self-representation).                                  The parties appeared

on March 29, 2012, to be heard on the latter motion, which the

court denied by its memorandum order of April 3, 2012.                                                See

United States v. Barefoot, No. 5:05-cr-00166 (E.D.N.C. Apr. 3,

2012), ECF No. 257 (the “Faretta Order”). 2                                    By separate order

entered that same day, the reconsidered motion to suppress was

denied       as    moot     after    the     government               agreed     not    to     use    the

debriefing statements at trial.

        On September 18, 2012, within a week of trial, Barefoot

moved       the    district        court    in        limine         to   exclude      any    evidence

concerning          his    involvement           in       the    Petit        murder    (the       “Petit

evidence”).               The     government              had    previously          given     notice,

        2
            The Faretta Order is found at J.A. 468-72.



                                                      9
pursuant to Federal Rule of Evidence 404(b), of its intent to

introduce the Petit evidence, as well as evidence of Barefoot’s

bomb-making, of his threats against the Johnston County Sheriff

and others, and of his Klan activities.                        Trial commenced on

September      24,   2012,     with    the    jury    being    empaneled     and   then

excused.       The parties remained in the courtroom for a hearing on

the motion in limine, which the court denied.                       The trial resumed

and concluded the following day, with the jury finding Barefoot

guilty of all six counts.

       The district court, on February 6, 2013, entered judgment

on    the   jury’s    verdict,       sentencing      Barefoot    to    60   months   in

prison on Count One; to a consecutive term of 120 months on

Counts Two, Three, Four, and Six, running concurrently with each

other; and to 12 months on Count Five, to be served at the same

time as the cumulative 180-month term.                     By timely notice filed

February 11, 2013, Barefoot appeals.



                                            II.

       Barefoot      maintains       that    his     trial    and     sentencing     was

riddled with legal infirmities.                   He assigns specific error to

the    district      court’s    rulings:           (1)   denying      his   motion   to

represent himself; (2) denying his motion in limine to exclude

the    Petit    evidence;      (3)    declaring      the     government’s     evidence

sufficient to sustain his convictions on Counts Three and Four,

                                             10
thus       leading     to   the    denial      of    his       motions    for   judgments     of

acquittal on those charges; (4) denying his motion to dismiss

Counts Four through Six as having been brought in violation of

the Plea Agreement; and (5) overruling his objections to the

manner      in   which      his    sentence         was    calculated      pursuant    to   the

Sentencing Guidelines. 3

       In order to accurately determine whether the accused may

competently exercise his constitutional right to defend himself,

“realistic        account          of    the        particular         defendant’s     mental

capacities” must be taken.                    Indiana v. Edwards, 554 U.S. 164,

177 (2008).          As a practical matter, “the trial judge . . . will

often prove best able to make more fine-tuned mental capacity

decisions,       tailored         to    the   individualized           circumstances     of    a

particular       defendant.”            Id.         We    therefore      will   not   disturb,

absent       a   palpable         abuse,      the    district         court’s   exercise      of

discretion        in     that      regard. 4             The   same      abuse-of-discretion


       3
        Though represented by counsel, Barefoot himself has
submitted for our review a pair of supplemental briefs appended
with various exhibits. On February 7, 2014, we entered an order
accepting the supplemental briefs for filing, and, in resolving
this appeal, we have fully considered them and the exhibits
attached thereto.
       4
       Once trial has begun under the stewardship of counsel, the
necessity that it proceed efficiently, without inconvenience,
delay, or confusion of the jury, affords the district court in
the exercise of its supervisory role an alternative source of
discretion to refuse a request from a defendant — even an
indisputably competent one — to proceed pro se.        See United
(Continued)
                                                11
standard governs our review of the court’s decision to admit

evidence of crimes and other “bad acts” pursuant to Federal Rule

of Evidence 404(b).         See United States v. Day, 700 F.3d 713, 728

(4th Cir. 2012).

      By way of contrast, we conduct a de novo review of the

district court’s evaluation of the sufficiency of the evidence

supporting    Barefoot’s          convictions.           See       United   States    v.

Abdulwahab,    715    F.3d    521,       528    (4th    Cir.   2013).       Though    we

examine the trial record unencumbered by the ruling below, we

must nonetheless “view the evidence in the light most favorable

to the government and sustain the jury’s verdict if any rational

trier of fact could have found the essential elements of the

crime   charged      beyond    a    reasonable         doubt.”        Id.   at   528-29

(internal quotation marks omitted).

      We also review de novo the district court’s application of

the   Plea   Agreement      and    the    Guidelines,         at    least   insofar   as

questions of law predominate.              See United States v. West, 2 F.3d

66, 69 (4th Cir. 1993) (specifying de novo review insofar as

enforcement    of    plea     agreement        “turns    on    contract     principles

concerning    the    interpretation            of   unambiguous      [provisions]     or




States v. Singleton, 107 F.3d 1091, 1096-97 (4th Cir. 1997)
(citing, inter alia, Bassette v. Thompson, 915 F.2d 932, 941
(4th Cir. 1990)).



                                           12
other matters of law”); United States v. Manigan, 592 F.3d 621,

626 (4th Cir. 2010) (instructing that court’s legal conclusions

attendant to imposition of Guidelines sentence are reviewed de

novo).         To   the   extent,     however,       that     the    court’s    rulings

depended on its resolution of one or more facts in dispute, our

review is for clear error.             See West, 2 F.3d at 69; Manigan, 592

F.3d at 626.



                                            III.

                                             A.

      The Supreme Court has disavowed “the use of a single mental

competency standard for deciding both (1) whether a defendant

who   is   represented       by    counsel    can    proceed    to    trial     and   (2)

whether    a    defendant     who    goes    to    trial    must    be    permitted    to

represent      himself.”          Indiana    v.    Edwards,    554    U.S.     164,   175

(2008).        The Edwards Court observed, “In certain instances an

individual may well be able to . . . work with counsel at trial,

yet at the same time he may unable to carry out the basic tasks

needed to present his own defense.”                 Id.     Barefoot, according to

the   district      court,    fell    within       that    category      of   defendants

contemplated by Edwards.             The question before us is whether the

court’s determination was sufficiently supported and reasoned to

qualify as an appropriate exercise of its discretion.



                                             13
      The district court had ample opportunity at the hearing on

Barefoot’s      motion     to   converse       with   him   and    to    perceive      his

capabilities and comportment.              See United States v. Bernard, 708

F.3d 583, 591 (4th Cir. 2013) (explaining that “the district

court     was   in   the   best     position    to    observe     [the    defendant’s]

demeanor and make judgments about his mental abilities”).                              The

court based its decision in substantial part on its “impressions

of and discussions” with Barefoot during the hearing.                          Faretta

Order 5.        These colloquies were generally marked by Barefoot’s

insistence        that     he      could   cross-examine          the     government’s

witnesses far more ably than his appointed counsel.                          The court

strove to impress upon Barefoot that effective cross-examination

is merely an isolated aspect of a thorough, competent defense,

but   it   came      to   regard    that   message     as   neither      received      nor

comprehended.              At      hearing’s     end,       the    court      remained

“unconvinced” that Barefoot could “understand[] fully his role

and duties at trial were he to represent himself.”                       Id. at 4. 5

      5
        The district court doubtlessly was also aware that
Barefoot, upon being adjudicated competent to stand trial,
proceeded to file with the clerk about a dozen pro se motions,
letters,   memoranda, and the like during the months leading up
to the hearing.       Barefoot relentlessly papered the record
notwithstanding that he was represented by counsel, and despite
the court’s standing order that his pro se submissions would be
terminated as a matter of course with no response required from
the government.    Barefoot’s conduct could hardly have afforded
the court much confidence that he would heed its instructions
and otherwise comply with the normal strictures of trial.


                                           14
       Moreover,    the     district    court       expressed    concern      that

Barefoot’s delusional disorder had only partially remitted, and

that he was not taking medication to ameliorate any lingering

impairment.        The    court   adverted    to    the   forensic     evaluation

prepared by Ralph Newman, a staff psychiatrist at the Federal

Medical Center in Butner, North Carolina, where Barefoot had

been housed since January 2008.               Dr. Newman’s evaluation was

prepared     on   March   9,   2011,   then   submitted     to   the    court    to

support the proposition that Barefoot had regained sufficient

competency to be tried.           Dr. Newman concluded that “Barefoot is

able    to    understand       the   nature     and    consequences      of     the

proceedings against him and to assist properly in his defense.

We view him as competent to stand trial with representation by

his attorney.”      J.A. 905 (emphasis added).

       Barefoot maintains that the district court, in determining

whether he was able to adequately represent himself in April

2012, could not have reasonably relied on Dr. Newman’s opinion

given more than a year previously.                  But Barefoot offered no

evidence of his own in counterpoint.               Further, Barefoot’s mental

health had been at issue before the court, at the time of its

ruling, for more than five years.             Viewed in the context of the

process at large — deliberate as it was — the court correctly

declined to disregard Dr. Newman’s evaluation as stale per se.



                                       15
       Rather, the district court was bound to consider all of the

evidence together with any circumstances enhancing or detracting

from its probative value, including its vintage, and to accord

that   evidence       its     commensurate         weight.       Dr.       Newman’s     2011

evaluation, standing in isolation, might have been regarded as

inconclusive with respect to Barefoot’s competency to conduct

his own defense in 2012.              Taken in conjunction with the court’s

opportunity      to      personally         observe        Barefoot,       however,      and

juxtaposed      with         the    affirmative        evidence        of        Barefoot’s

competency (of which there was little), Dr. Newman’s opinion

could rationally carry the day.                    It was therefore not an abuse

of the court’s discretion to rule, in accordance with Edwards,

that    Barefoot       was    not    sufficiently          competent       to     represent

himself at trial.

                                             B.

       The   government       offered       the    Petit    evidence       in    connection

with its presentation on Count Three, which charged Barefoot

with solicitation to commit a crime of violence, that is, to

damage or destroy by explosives the Johnston County Courthouse

and Sheriff’s Office.              Gautier, who had participated in Petit’s

murder,      recounted       at    trial    that     Barefoot       harbored      a   grudge

against      Sheriff     Bizzell.          Barefoot        blamed    Bizzell      for    the

failure of the Barefoots’ fledgling drinking establishment, The

Enchanted     Barn,     which      one     witness    described       as    “a    backwoods

                                             16
bootleg bar or something.”             J.A. 663.     Gautier explained that

Barefoot “was trying to get a liquor license and Bizzell held

him off on it, stalled it . . . . Then when he did get . . . his

license, Bizzell raided the place and pretty much put a damper

on   all    of   it.”    Id.   at    600.     Subsequently,     Bizzell   denied

Barefoot’s Klan group a permit to march in a local parade, which

served to fuel Barefoot’s hatred.             See id. at 661.

       According    to   Gautier,     Barefoot   spoke   “several      times”   of

“getting back” at Sheriff Bizzell by “blowing the courthouse

up.”        J.A.   599-600.         Gautier   elaborated   on    one    specific

conversation along those lines that took place during the autumn

of 2001:

       Q.    Did Mr. Barefoot approach you at some point with
             an idea about blowing up the courthouse?

       A.    That was before [Barefoot’s acquisition of the
             liquid dynamite].   He mentioned something about
             what he planned on doing at the courthouse.    He
             mentioned floating down the river at night in a
             light canoe or a one man boat or whatever and one
             man could . . . get out, plant the stuff,
             somebody could drop him off upriver, he could
             float down, do what he had to do at the
             courthouse, said he would drop off explosives.
             And then somebody could pick him up south — the
             river ran right [past] the courthouse is what I
             understand.

       Q.    Now, was he asking you to do anything like this?

       A.    I think that was in his mind, but he didn’t come
             out and just ask me to do it.     He said that’s
             what he had in mind and wanted to find somebody
             to do it.
                               * * * *

                                        17
        Q.     Did Mr. Barefoot, in fact, have any kind of raft
               or —

        A.     He had a one-man boat.

        Q.     He did have a one-man boat. In your mind did you
               understand him to be serious when he was talking
               about this?

        A.     Yes.       I’m pretty sure he was serious.

Id. at 601-02.

       To be sure, “[e]vidence of a crime, wrong, or other act is

not admissible to prove a person’s character in order to show

that on a particular occasion the person acted in accordance

with the character.”              Fed. R. Evid. 404(b)(1).               Evidence of

crimes, wrongs, or bad acts, however, “may be admissible for

another purpose, such as proving motive, opportunity, intent,

preparation, plan, knowledge, identity, absence of mistake, or

lack of accident.”             Id. 404(b)(2).         We have observed generally

that “Rule 404(b) is a rule of inclusion, admitting all evidence

of other crimes or acts except that which tends to prove only

criminal disposition.”            See, e.g., United States v. Moore, 709

F.3d     287,       295    (4th   Cir.    2013)       (internal    quotation    marks

omitted).

       In    particular,       there     are   four    prerequisites     to    fulfill

before       Rule    404(b)    evidence    can    be    admitted    in   a    criminal

proceeding.          The evidence must be:             (1) relevant to an issue

other    than       the    defendant’s    general      character;    (2)     probative

                                           18
enough of an essential claim or element of the offense as to

prove necessary to the government’s case; (3) reliable; and (4)

not   so   provocative     “that   it   tends      to     subordinate     reason   to

emotion    in   the   factfinding    process.”            See   United    States    v.

Williams, 740 F.3d 308, 314 (4th Cir. 2014) (incorporating with

respect to fourth factor Rule 403 requirement that probative

value of evidence not be substantially outweighed by prospect of

confusing factfinder or unfairly prejudicing defendant).

      At closing argument, defense counsel sought to downplay his

client’s approach of Gautier as insubstantial and fanciful talk,

reminding the jury that witnesses had described Barefoot as “a

nut” and “a braggart.”        J.A. 794.        On appeal, Barefoot maintains

that “copious evidence” indicated he “talked about many things

that never occurred.”        Br. of Appellant 30.               Barefoot’s efforts

to portray his words as little more than idle musings illustrate

why the Petit evidence was admissible.                     The discussion among

Barefoot, Gautier, and the other Klansmen that directly led to

Petit’s    murder     demonstrated   to      the   jury    that   these    were    not

merely men who talk, but men who act — however despicable those

acts may be.

      The Petit evidence was thus relevant to show that Barefoot

was devising a serious scheme to blow up the courthouse, thereby

demonstrating       his   culpable      intent      in     soliciting     Gautier’s

assistance.         Cf. United States v. Cvijanovich, 556 F.3d 857,

                                        19
864 (8th Cir. 2009) (concluding, in prosecution for threatening

President, that evidence of prior similar conduct was relevant

to illustrate defendant’s “intent and the seriousness of the

threats”).          Beyond mere relevance, however, the evidence was

necessary to the government’s case inasmuch as the sincerity of

Barefoot’s overture to Gautier was an essential element of the

solicitation offense.            See infra Part III.C.1.a.

       The   jury,     of   course,     was      entitled     to    credit   Gautier’s

testimony      at    face   value     and     to   regard     his     impressions     as

credible insofar as the details of the proposal dovetailed with

Barefoot’s      access      to    a   boat       and     eventual    procurement      of

explosives.         Nonetheless, the additional evidence of the duo’s

earlier involvement in plotting Petit’s violent demise — such

plot    being       successfully      executed      —     powerfully     corroborated

Gautier’s reckoning that he had accurately perceived Barefoot’s

meaning      during     their      subsequent          discussion    concerning      the

Johnston County Courthouse.

       It is difficult to imagine evidence more inimical to the

jury’s perception of a defendant than that of participation in a

murder.      See United States v. Lighty, 616 F.3d 321, 357 (4th

Cir.   2010)    (acknowledging         that      “admission    of    evidence   of   an

uncharged murder is extremely prejudicial”).                       Rule 403, however,

does not require the exclusion of Rule 404(b) murder evidence in

all circumstances.          See, e.g., United States v. Myers, 280 F.3d

                                            20
407, 413-14 (4th Cir. 2002) (ruling that evidence of defendant

drug   dealer’s        fatal    shooting      of    customer     was     substantially

probative of firearm charges, and, although “damaging,” was not

unfairly prejudicial); United States v. Melton, 970 F.2d 1328,

1336 (4th Cir. 1992) (reasoning that trial court did not err by

striking   Rule    403     balance     in   favor       of   admitting    evidence    of

defendant’s    uncharged        murder      of     informant    in     furtherance    of

charged drug conspiracy).              We have recognized, moreover, that

instructions      to    the    jury   limiting         its   consideration    of   Rule

404(b)   evidence       serve    to   blunt      its    prejudicial     effect.      See

United States v. Wilson, 624 F.3d 640, 655 (4th Cir. 2010).

       When the subject of the murder investigation was initially

broached with the government’s first witness — an ATF agent —

the district court immediately interrupted the questioning to

inform the jury that the Petit evidence was “not offered to

prove that [Barefoot] is a bad person or that he’s a person of

bad character,” pointedly instructing the jurors that they were

“not to allow it to prejudice you about the crimes that are on

trial in this case.”            J.A. 549.        Later on, when Brewer began to

offer his eyewitness account of the murder, the court reiterated

its warnings.      See id. at 685-86.

       We can only conclude that the district court exercised the

utmost care to attenuate the harm to Barefoot in the jury’s eyes

that may have resulted when witnesses implicated him in Lawrence

                                            21
Petit’s murder.         We likewise consider that the Petit evidence

was crucial to the government’s proof of Count Three, insofar as

it established the dynamic between Barefoot and Gautier in an

analogous situation and thereby lent credence to the latter’s

testimony.         Under those circumstances, we cannot say that the

district      court   abused     its    discretion            in   admitting     the   Petit

evidence      after   determining       that       its    probative      value     was    not

substantially outweighed by the risk of unfair prejudice.

                                             C.

                                             1.

        The   foregoing     discussion            of   the     Rule     404(b)    evidence

portends, perhaps, our disposition of Barefoot’s challenge to

the sufficiency of the evidence on which the jury convicted him

of Count Three.          The offense charged therein prescribes fines

and imprisonment for anyone who “solicits, commands, induces, or

otherwise endeavors to persuade” someone else, intending that

the other “engage in conduct constituting a felony that has as

an element the use, attempted use, or threatened use of physical

force    against      property    or    against        the     person    of     another    in

violation      of     the   laws       of    the       United       States      and    under

circumstances strongly corroborative of that intent.”                            18 U.S.C.

§ 373(a).

    From       the    statutory        language,         we    derive     the    essential

elements      of    § 373(a)     as:        (1)    a     solicitation,        command,     or

                                             22
similar entreaty; (2) to commit a federal felony; (3) involving

the actual or inchoate use of force against person or property;

(4) made under such conditions or within such context that the

overture may reasonably be regarded as sincere.              With respect to

the sincerity element, the court of appeals in United States v.

Buckalew   explained    that    § 373(a)   “‘is   designed    to   cover   any

situation where a person seriously seeks to persuade another

person to engage in criminal conduct.’”             859 F.2d 1052, 1054

(1st Cir. 1988) (quoting S. Rep. No. 97-307, 97th Cong., 1st

Sess. 183-84 (1982)).

     Count Three of the indictment alleged two federal felonies

as the subjects of the solicitation, each set forth in § 844 of

the criminal code.      The first prohibits the malicious damage or

destruction by fire or explosive of, inter alia, “any building,

vehicle, or other personal or real property in whole or in part

owned or possessed by, or leased to, the United States.”                   18

U.S.C.   § 844(f)(1).     The    second    proscribes   the    same   conduct

directed at any property “used in interstate or foreign commerce

or in any activity affecting interstate or foreign commerce.”

Id. § 844(i).    Both offenses unquestionably involve the use of

force against property.        Likewise, there is no dispute that the

government leased and possessed a portion of the Johnston County

Courthouse, and that at least part of the premises were used in

some activity affecting commerce.

                                     23
                                            a.

     Barefoot confronts head-on the government’s proof of the

threshold solicitation requirement.                    Reprising the trial account

of the plan for blowing up the courthouse, Barefoot emphasizes

Gautier’s acknowledgment that he [Barefoot] “didn’t come out and

just ask [Gautier] to do it.”               J.A. 601.       We are unable to agree

that § 373(a) should be construed so narrowly as to exclude from

its coverage all but the most overt solicitations.                            Moreover,

Barefoot’s     distillation        of      Gautier’s      testimony    to     a    single

excerpt     disserves       the    broader        meaning      attributable       to    its

entirety.

     Certainly, a straightforward request or directive fulfills

the first element of § 373(a) by constituting an unambiguous

solicitation       or   a   command.        The     element     is   also    satisfied,

however,     by    inducement        and    —     least     stringently      —     by   an

“endeavor to persuade.”              In everyday contexts, an endeavor to

persuade     may    entail     all      sorts     of    communication       strategies,

verbal and non-verbal.             Without question, we humans develop an

impressive array of techniques for influencing others.                            We may

favor   a   friend      with   a   wink     and    a    nod,   discreetly     thrust     a

banknote into the willing palm of a maître d’hôtel, or even say

nothing where something is expected in the hope that our silence

will foment distress and, ultimately, acquiescence.



                                            24
       Hence, Barefoot’s apparent reluctance to “come out and just

ask”    Gautier      to    help     him     blow       up    the    courthouse       is        not

dispositive of the issue.                 Gautier testified additionally that

he was “pretty sure” that the plan was serious, J.A. 602, and

that Barefoot desired “somebody” to assist him with it, id. at

601.        Although        Gautier        could       hardly       convey         Barefoot’s

inflections,         intonations,         and     nonverbal        cues,     there        is    a

compelling inference to be taken even from the stark transcript

that    Barefoot       would      not     have     described        his     plan    in     such

gratuitous detail had he not hoped that Gautier might be that

“somebody.”       Giving the government the benefit of this inference

and of Gautier’s overall impression of the conversation, there

was    sufficient      evidence      for    the     jury     to     find    that    Barefoot

endeavored to persuade Gautier to help him blow up the Johnston

County Courthouse.

                                             b.

       Barefoot’s attack on the sufficiency of the evidence in

support    of    the      federal       felony    element      is    considerably          more

subtle.         Barefoot     maintains          that    he    should       not     have    been

convicted       of     violating         § 373(a)       because       the        government’s

evidence, even if fully credited, revealed that he solicited

Gautier’s felonious involvement not for the use of force against

the courthouse, but merely to provide transportation before and

after Barefoot himself had used such force.

                                             25
       Barefoot’s deconstruction of the courthouse scheme into its

component parts are unavailing, inasmuch as his efforts in that

regard      misconstrue        the    law    and       inadequately    account        for   our

precedent.            Had Barefoot’s plan come to fruition as designed,

Gautier would have aided and abetted the damage or destruction

by    explosive        of    the    Johnston      County    Courthouse.          Aiding     and

abetting is not itself a federal offense, but merely “describes

the way in which a defendant’s conduct resulted in the violation

of a particular law.”                 United States v. Ashley, 606 F.3d 135,

143    (4th      Cir.       2010);   see     18    U.S.C.    § 2(a)     (providing          that

“[w]hoever commits an offense against the United States or aids,

abets, counsels, commands, induces or procures its commission,

is punishable as a principal”).                          Thus, although Gautier may

have been invited to conduct himself solely in the supporting

role of driver, the particular laws he would have violated as an

aider      and   abettor       —     namely,      the    offenses     for   which      he   was

solicited — were necessarily the charged explosives offenses,

and    both      of    those       include   the       requisite    element      of      force.

Barefoot’s guilt of the solicitation offense underlying Count

Three      was        therefore      sufficiently          established      as      to      each

essential element. 6


       6
       Barefoot does not challenge the government’s evidence as
to the sincerity element, except insofar as its sufficiency may
be tied to the admission of the Petit evidence pursuant to Rule
(Continued)
                                                  26
                                             2.

       Barefoot         also   contests     the     sufficiency      of   the   evidence

supporting the jury’s verdict on Count Four, finding him guilty

of receiving an explosive that he intended to use for prohibited

purposes.          The    statute     of    conviction      provides,      in   pertinent

part, that “[w]hoever transports or receives . . . in interstate

or foreign commerce any explosive with the knowledge or intent

that       it    will    be    used   to    kill,    injure,    or     intimidate      any

individual        or     unlawfully    to    damage    or    destroy      any   building,

vehicle, or other real or personal property” is to be fined and

imprisoned.             18 U.S.C. § 844(d).           Barefoot correctly asserts

that no witness at trial testified as to what he intended to do

with       the   Kinestik      cartridges     he    obtained    in    trade     and   then

stored at his son’s residence, where they were seized before

being put to use. 7




404(b).   It suffices to say that we would have deemed the
evidentiary issue moot had the proof of Barefoot’s guilt on
Count Three been insufficient notwithstanding the jury being
allowed to consider his prior bad acts.
       7
       The record lacks perfect clarity, making it a chore to
discern a precise timeline of the case. During his debriefing,
Barefoot described the events surrounding the Petit murder as
having occurred in August 2001.    See J.A. 70.   At trial, the
participants confirmed that the murder, prefaced by the meeting
at Barefoot’s residence, actually took place in early September
2001.   See id. at 581, 685.     Gautier, who was working for
Barefoot’s siding business and eventually came to live on his
property for about a year, witnessed the trade for the Kinestik
(Continued)
                                             27
       The government, of course, was not required to prove its

case with direct accounts of Barefoot’s state of mind.                           Indeed,

as we have indicated a number of times, “a conviction may rely

entirely on circumstantial evidence.”                   See, e.g., United States

v. Hassan, 742 F.3d 104, 139 (4th Cir. 2014) (internal quotation

marks omitted).         Here, Barefoot’s acquisition of the cartridges

only    a     short   time   after      he   solicited        Gautier     to    bomb    the

courthouse       permitted     the    inference       that     the    explosives       were

intended to carry out that plan.

       Moreover, the trial transcript discloses that Barefoot had

assembled bombs, detonated them, and had often threatened to

kill Sheriff Bizzell.            See J.A. 629-30 (Maynard’s testimony that

he     had    seen    Barefoot     make      pipe    bombs);       id.    at   597,     630

(Gautier’s and Maynard’s accounts of Barefoot detonating small

bombs    in    his    backyard);      id.    at     599-600,    664      (Gautier’s     and

Avery’s       confirmation       that     Barefoot      had     expressed       on     many

occasions       his   desire     to     murder      Bizzell    by     blowing    up     the

courthouse).           Giving     the       government       the     benefit     of     all

reasonable inferences gleaned from the circumstantial evidence,



cartridges no later than Christmas Day 2001, when he was forced
to move out. See id. at 580-81, 600-01. Barefoot procured the
cartridges, however, only after soliciting Gautier to help him
bomb the courthouse, see id. at 601, which, according to the
government’s unchallenged representations, happened in or about
November 2001, see id. at 34, 508-09.



                                             28
we are assured that a rational trier of fact could have found

Barefoot possessed the requisite culpable intent to sustain his

conviction of Count Four.

                                        D.

     We   now    address     the    effect   on    this   appeal   of    the   Plea

Agreement entered in the prior proceeding.                  In construing the

meaning of the Agreement, we are guided by standard principles

of contract law “to ensure that each party receives the benefit

of the bargain.”          United States v. Jordan, 509 F.3d 191, 195

(4th Cir. 2007).          Our aim is to enforce the Agreement’s “plain

language in its ordinary sense.”             Id. (internal quotation marks

omitted).

                                        1.

     There      is   no   dispute    that,    in    exchange   for      Barefoot’s

statements at debriefing, the government honored its pledge to

“not further prosecute [him] for conduct constituting the basis

for the [2002] Indictment.”             Plea Agreement ¶ 4.c.             Barefoot

pleaded guilty to the single firearms offense charged, and he

has not been federally prosecuted for any additional criminal

conduct in connection with the firearms and ammunition seized

during his traffic stop or by warrant thereafter.

     The government’s forbearance reflects the Agreement’s grant

of immunity to Barefoot for his unlawful acts intrinsic to the

firearms indictment.          Though the grant is unconditional, its

                                        29
scope is confined to the underlying transaction.                                See Kastigar

v.   United       States,     406   U.S.       441,    453    (1972)    (explaining          that

transactional immunity “accords full immunity from prosecution,”

but only “for the offense” to which the defendant’s statements

relate).          In    illustration           of    that    principle,         we    described

transactional          immunity     as    “protect[ing]         an   individual         against

prosecution for anything concerning the substance of compelled

testimony.”          United States v. Harris, 973 F.2d 333, 336 (4th

Cir.      1992)    (emphasis        added).           The     comprehensive          bar     from

prosecution thereby afforded renders transactional immunity, in

that respect, a “broader concept” than that of “[u]se immunity,”

which     “protects         against      the    government’s         use    of       compulsory

testimony as a source of evidence, leaving the government free

to use any other evidence to prosecute.”                       Id.

         When, as in Harris, the government is precluded from using

the extracted statements not merely as trial ammunition but also

as   a    source       to   develop      additional          evidence      in    aid    of    its

investigation or prosecution of the defendant for any criminal

activity, the resultant “immunity from use and derivative use”

provides protection “coextensive with the scope of the privilege

against       self-incrimination,              and    therefore      is     sufficient         to

compel testimony over a claim of the privilege.”                                Kastigar, 406

U.S.     at   453.          In   Kastigar,          the   Supreme      Court      rebuffed      a



                                                30
challenge to the constitutionality of the General Immunity Act

of 1970, 18 U.S.C. §§ 6001-6005 (the “Act”).

       The Kastigar Court addressed a particular aspect of the Act

specifying that when a witness in a federal proceeding has been

ordered       to    testify            in    derogation         of     the         Fifth    Amendment

privilege         against     self-incrimination,                    “no    testimony        or   other

information         compelled           under       the       order        (or     any     information

directly      or    indirectly              derived      from    such       testimony        or   other

information) may be used against the witness in any criminal

case.”      18 U.S.C. § 6002.                 By so providing, the statute “leaves

the witness and the prosecutorial authorities in substantially

the    same    position           as    if    the     witness         had    claimed        the   Fifth

Amendment privilege.”                       Kastigar, 406 U.S. at 462; see In re

Kilgo, 484 F.2d 1215, 1220 (4th Cir. 1973).

       Although        the    statute         controls         only        those    proceedings       in

which a witness is formally compelled to speak by the presiding

officer       on       the    application                of     the        government,        federal

prosecutors possess broad discretion to informally confer the

same   or     similar        protections          to      procure          helpful       testimony    or

information.           See United States v. Richardson, 195 F.3d 192, 196

(4th Cir. 1999) (recounting the “long-standing and consistent

policy of authorizing and encouraging grants of leniency and

immunity      .    .    .    in    exchange         for       truthful       testimony”).            The

flexibility        that      inheres         in   this        much    more       common     method    of

                                                    31
securing   cooperation,       in    which    the   witness   is    offered      “vest

pocket” or “hip pocket” immunity (as it is sometimes known), is

perhaps more accurately portrayed as “really [a] discretionary

agreement[]” on the part of the government, United States v.

Quatermain, Drax, 613 F.2d 38, 45 (3d Cir. 1980) (Aldisert, J.,

dissenting).      These sort of informal agreements with federal

prosecutors occasionally lead, as here, to disputes concerning

the precise contours of the aegis so conferred.

                                        2.

                                        a.

     Though     the    Plea   Agreement      indisputably       granted    Barefoot

transactional immunity for the balance of his conduct intrinsic

to the prior indictment and prosecution, the parties disagree on

the protection afforded him regarding any unrelated, extrinsic

offenses   of    which    the      government      was   alerted    at    the   2003

debriefing.     Paragraph 4.f of the Agreement discloses that the

government covenanted “not to use any information provided” by

Barefoot “to prosecute him for additional crimes, except for

crimes of violence.”          According to the government, the quoted

language conferred upon Barefoot a species of limited immunity

prohibiting     only     direct     evidentiary      use   of     his    debriefing

statements in prosecution of his nonviolent extrinsic offenses,

and no immunity at all for any violent ones.



                                        32
        The government thus posits that its prosecution of Barefoot

on the explosives charges constituting Counts Four through Six

of   the Superseding         Indictment      was   not    barred   under    the   Plea

Agreement, maintaining that the only statements it used against

Barefoot      at    trial    were    those     wherein     he    acknowledged     his

involvement in arranging the Petit murder.                   The Petit evidence,

as discussed above, was admitted pursuant to Federal Rule of

Evidence 404(b) exclusively in connection with the solicitation

charge in Count Three. 8

        Barefoot chafes at the government’s insistence on adhering

to the letter of the Plea Agreement, contending that, near the

outset of negotiations on December 2, 2002, the lead prosecutor

represented that Barefoot would “get a walk” for any criminal

activity he admitted during the debriefing.                     J.A. 93.    During a

subsequent phone conversation between counsel on December 17,

2002, Barefoot’s lawyer was told that his client would get a

“free       pass    this    time    on   anything    he    talks    about    —     one

opportunity to tell all; will not prosecute him on what he talks

about.”       Id.     Finally, at the debriefing on January 21, 2003,


        8
        Barefoot’s motion to dismiss below, based on the
government’s asserted violation of the Plea Agreement and denied
by the district court’s August 22, 2011 order, targeted the
entire Superseding Indictment.     On appeal, Barefoot assigns
error to the court’s ruling only as it pertains to Counts Four
through Six. See Br. of Appellant 41 n.7.



                                          33
the interviewing agents urged Barefoot “to tell them everything

he knew” about any explosives or bombs, because, in light of the

Plea Agreement, “telling them where the bomb is cannot hurt him

anymore.”    Id. at 94.

       Another aspect of the written Agreement, however, appears

to foreclose Barefoot’s broad characterization of the immunity

conferred thereunder.         Immediately following the recitals, the

Plea Agreement’s initial numbered paragraph sets forth what is

commonly referred to as a merger or integration clause.                         See

Restatement     (Second)   of    Contracts      § 209   (1981)      (hereinafter

“Restatement”) (defining an “integrated agreement” as “a writing

or writings constituting a final expression of one or more terms

of an agreement”).      Just as we would honor an integration clause

to a contract, we honor one in a plea agreement.                       See, e.g.,

United States v. Fentress, 792 F.2d 461, 464 (4th Cir. 1986)

(“[A]   fully   integrated      [plea]      agreement   .   .   .   may   not   be

supplemented with unmentioned terms.”); see also United States

v. Hunt, 205 F.3d 931, 935 (6th Cir. 2000) (“An integration

clause normally prevents a criminal defendant, who has entered

into a plea agreement, from asserting that the government made

oral    promises   to   him     not   contained    in   the     plea    agreement

itself.”).      The integration clause in this instance specifies

that “[t]his Memorandum constitutes the full and complete record

of the Plea Agreement.          There are no other agreements between

                                       34
the parties in addition to or different from the terms herein.”

Plea Agreement ¶ 1.               Insofar as we are bound to give it force

and    effect,       the     clause    precludes      an     interpretation      of     the

Agreement          that     takes     into    account       any     preliminary        oral

representations            inconsistent      with    its     written    form,    because

“[a]n        integrated           agreement        supersedes         contrary        prior

statements.”         Restatement § 209 cmt. a. 9

       Barefoot       nonetheless      reminds      us     that,    although    we    apply

standard precepts of construction to disputed plea agreements,

those rules “may require . . . tempering in particular cases” to

accommodate         the     reality       that     “the     defendant’s        underlying

‘contract’         right     is     constitutionally          based     and     therefore

reflects concerns that differ fundamentally from and run wider

than       those    of    commercial      contract       law.”      United     States    v.

Harvey,      791    F.2d     294,   300    (4th     Cir.    1986)    (citing    Mabry    v.

Johnson, 467 U.S. 504, 509 (1984)). 10                     In Harvey, the eponymous


       9
       Although the exhortation by the agents at the debriefing
that Barefoot “tell them everything he knew” might have
reflected their understanding of the immunity arrangement, that
conversation took place only after Barefoot had entered into the
Plea Agreement and could not have influenced the decision he had
already made.   The agents’ entreaties are therefore immaterial
to this appeal.
       10
        We elaborated in Harvey that “with respect to federal
prosecutions,  the   courts’   concerns  run   even  wider   than
protection of the defendant’s individual constitutional rights —
to concerns for the ‘honor of the government, public confidence
in the fair administration of justice, and the effective
(Continued)
                                              35
defendant pleaded guilty to one of nine indicted counts stemming

from a    hashish     conspiracy.          As      consideration     for    his    guilty

plea, Harvey       was    promised     that       “the    Government     will     move    to

dismiss the remaining counts,” and “[t]he Eastern District of

Virginia further agrees not to prosecute . . . HARVEY for any

other possible violations . . . arising from the offenses set

out in the indictment or the investigation giving rise to those

charges.”    Id. at 296 n.1.           An integration clause provided that

the agreement was “the full and complete understanding of the

parties.”    Id.

     A few days after being released from imprisonment on his

conviction, Harvey was arrested and indicted in the District of

South Carolina on charges apparently related to the original

investigation.           The    district     court       declined   to    enjoin     those

proceedings,       ruling       that   the        plea   agreement       immunized       the

defendant    from    prosecution        only       in    the   Eastern     District       of

Virginia.    Harvey was ultimately convicted on two counts of the

second indictment.

     We     vacated        the     convictions,           explaining       that      “both

constitutional      and        supervisory        concerns     require     holding       the




administration of justice in a federal scheme of government.’”
791 F.2d at 300 (quoting United States v. Carter, 454 F.2d 426,
428 (4th Cir. 1972)).



                                             36
Government       to       a       greater      degree          of    responsibility            than    the

defendant     .       .       .    for    imprecisions               or     ambiguities        in     plea

agreements.”          Harvey, 791 F.2d at 300.                            The agreement at issue

in   Harvey           was          ambiguous,             we        determined,          because        it

interchangeably referred to the “Government” and the “Eastern

District    of    Virginia”              as    the    party          with       whom    the    defendant

contracted.       Applying the foregoing principles, we construed the

ambiguity in favor of Harvey, concluding that the government as

a whole (and not just the government’s agents in the Eastern

District    of    Virginia)              was    bound      by       the     agreement’s        grant    of

transactional immunity.                       See id. at 303; see also Restatement

§ 206 (“In choosing among the reasonable meanings of a promise

or   agreement            or      term     thereof,            that       meaning       is     generally

preferred    which            operates         against         the    party       who    supplies      the

words or from whom a writing otherwise proceeds.”).

     Harvey,      unlike            Barefoot      here,         did       not    seek    to    test    the

enforceability of a valid integration clause by attempting to

introduce        parol            statements          as            bearing       on     the        proper

interpretation of a plea agreement.                                 Our decision in that case

is therefore largely unhelpful in analyzing the case at bar.                                           In

Harvey,     the       outcome            instead      turned              on    our     more    focused

determination that the written terms of the integrated agreement

were ambiguous.                By contrast, the Plea Agreement now before us,

notwithstanding            its      latent       ambiguity            regarding         the    latitude

                                                     37
retained by the government to use Barefoot’s statements, see

infra Part III.D.2.b.i, unambiguously excludes a broad grant of

transactional    immunity.          Indeed,     the   plain    language     of   the

Agreement     specifically          contemplates       the      possibility       of

additional criminal proceedings against Barefoot — for crimes of

violence — in which the government could use his debriefing

statements against him.

        Our decision in United States v. Garcia, 956 F.2d 41 (4th

Cir. 1992), is closer to the point.              The defendant in that case

was offered a ten-year sentence to plead guilty to a cocaine

conspiracy and testify against his compatriots.                       Although the

defendant turned down that offer, he eventually bargained with

the government to serve fifteen years and stand silent.                          The

written plea agreement neglected to mention that no obligation

had   been   imposed   on     the   defendant    to   assist    with    additional

prosecutions,    but     an    accompanying       cover      letter    to   defense

counsel confirmed that “the government will . . . not require as

part of the plea agreement that the defendant cooperate with law

enforcement.”      956      F.2d    at   42.     A    few    months    later,    the

defendant was subpoenaed to testify before the grand jury.                       He

refused and was found in contempt, for which he served eighteen

months in prison with no credit against his prior fifteen-year

term.



                                         38
       The defendant filed a motion pursuant to 28 U.S.C. § 2255

to vacate or correct his underlying sentence, alleging that the

plea agreement had been breached.                  The district court, confining

its analysis to the four corners of the agreement, denied the

motion.         We     granted      relief,       however,     directing      that    the

defendant       be     resentenced      and       credited     with   an     additional

eighteen months of time served, thereby nullifying the effect of

the contempt citation.             In so deciding, we declined to strictly

enforce    the       parol    evidence    rule,      perceiving       “no    avenue   to

relieve the government of a material promise contained in the

cover letter.”            Garcia, 956 F.2d at 44.            Instead, we determined

that equitable considerations justified a less rigid approach

than    might        otherwise     be    demanded,       explaining        that   “[t]he

government does not dispute that it made the promise — it just

wants to take advantage of a rule of contract law to profit from

an omission in a contract it prepared.                       We cannot countenance

such unfair dealing.”             Id.

       Our opinion in Garcia does not disclose whether the plea

agreement there contained an integration clause, but we shall

assume that it did.              The key fact in Garcia is not the presence

or absence of an integration clause in the plea agreement, but

the    rather    unusual      happenstance        that   the   government’s       intent

with    respect      to    the    disputed    provision      could    be    irrefutably

derived from the surrounding circumstances.                      The government was

                                             39
compelled      to    acquiesce       in     the       defendant’s      account      of    the

parties’ accord inasmuch as it could hardly argue that it had

somehow rejected or reconsidered the promise proven to have been

made contemporaneously with the plea agreement.

     The    facts     before       us,     by    contrast,         illustrate      the    more

common     situation       that      integration         clauses      are    specifically

designed to avoid.           The most that can be gleaned from the record

in the matter at bar is that the government twice expressed a

certain amenability to granting Barefoot transactional immunity

in   exchange       for    complete       and        truthful      revelations,     but    on

occasions a full seven and five weeks, respectively, before the

Plea Agreement was signed.                 There is simply no evidence of the

government’s position on immunity at any time proximate to the

execution of the Plea Agreement except, of course, the written

terms of the integrated Agreement itself.                          Harvey counsels that

“[p]rivate law interpretive principles may be wholly dispositive

in   an    appropriate        case,”       791        F.2d    at    300,    and,    lacking

sufficient      analogy       to     the        facts    of     Garcia,     the     dispute

underlying the Plea Agreement is appropriately resolved without

resort to equity.

                                                b.

                                                i.

      Though    not       afforded    an    expansive         transactional        immunity,

Barefoot was yet entitled under the Plea Agreement to have the

                                                40
government      forbear    from     using       his    debriefing       statements       with

respect to some or all of the explosives offenses charged in

Counts Four through Six.                The government does not dispute that

general       proposition,       but    urges     that     we     construe       the     Plea

Agreement to have conferred nothing more than narrow “direct

use”    immunity,       maintaining        that       it   was     barred       only     from

introducing       Barefoot’s        specific          statements        as     substantive

evidence of his guilt.             During his debriefing, Barefoot related

that    “he     received     the       liquid    dynamite        that    was     found      at

[Daniel’s residence] from a friend of Nicholas Barefoot.”                                J.A.

66.    Barefoot volunteered in addition that he had bartered one

of his hunting dogs for the explosives.                          See id.        Neither of

those statements were introduced for attribution at trial.

       Barefoot nonetheless insists that he received a broad grant

of use immunity under the Plea Agreement, in connection with

which the government ceded all prerogative to make derivative or

“indirect” use of his statements.                     Barefoot’s understanding of

the Agreement is that it is consistent with the interpretation

of 18 U.S.C. § 6002 in Kastigar, in which the Supreme Court

explained that “use and derivative use” immunity forecloses not

only the government’s direct evidentiary use of the immunized

statements,       but     also      its    use        of   any     “evidence          derived

therefrom.”        406     U.S.    at     443.        Scarcely     a    year    later,      we

confirmed       through     Judge       Butzner,       writing     on        behalf    of    a

                                            41
unanimous panel, that “[u]se immunity prohibits the witness’s

compelled testimony and its fruits from being used in any manner

in connection with criminal prosecution of the witness.”                                 In re

Kilgo,     484    F.2d   1215,      1220    (4th       Cir.    1973)    (emphasis       added)

(citing Murphy v. Waterfront Comm’n of New York, 378 U.S. 52, 79

(1964)).         Needless    to     say,    the       government’s       position       on    the

proper     interpretation          of    “use,”        as     set   forth    in    the       Plea

Agreement, is vastly different from the word’s accepted meaning

in   the   use     immunity       context,       as    explained        by   the    Court     in

Kastigar and by Judge Butzner in Kilgo.

      If Barefoot’s more prevalent understanding is indeed the

correct one, then the government would have been precluded from

using — directly or indirectly — the statements or information

derived therefrom to develop additional criminal charges against

him, precisely the same as if it had proceeded formally under

the immunity statute.              See Harris, 973 F.2d at 336 (recognizing

that use immunity conferred by agreement bound government in

same manner as immunity statute, in that it could not “use the

immunized        testimony    or    any     evidence          derived    from      it   either

directly or indirectly”).                  Insofar as the derivative use bar

applies here, it calls into question Gautier’s and Maynard’s

testimony        regarding    the       trade    and    Barefoot’s       storage        of    the

explosives in his freezer.                 In addition, Daniel testified that

Barefoot had later removed the explosives from the freezer and

                                                42
given them to him for safekeeping.                      The government referred at

length to the trade and the handoff to Daniel during its opening

statement, see J.A. 521-23, candidly acknowledging to the jury

that the entire “investigation initially focused on this liquid

explosive,” id. at 524.              There is scant reason to believe that

Barefoot would have been prosecuted on Counts Four through Six

had    he    not    mentioned        the     liquid         explosives        during    his

debriefing.

       Not long ago, we had occasion to explain that, when the

defendant     is     not      under     judicial            compulsion        to     provide

information but does so in accordance with a voluntary agreement

entered into with the United States Attorney, the scope of any

immunity      thereby        afforded        “is        a     matter     of         contract

interpretation that depends on the language in the agreement

itself.”      See United States v. Smith, 452 F.3d 323, 337 (4th

Cir. 2006).         We determined that the plea agreement in Smith

“unambiguously           conferred     use       immunity       only”         because    it

stipulated       that      the    government            “will    not         use    against

[Defendant], in any criminal proceeding, any of the information

or materials . . . provided.”              Id.

       Although the government does not rely on Smith as affecting

this case, the pertinent language in the Plea Agreement begins

in    somewhat     the    same   fashion.          To    reiterate,      the       Agreement

attests     that    the    government      would        not   “use     any    information

                                           43
provided by [Barefoot] . . . to prosecute him for additional

crimes,” a straightforward prohibition that it then qualifies

with the words “except for crimes of violence.”                        Plea Agreement

¶   4.f.      Notably,     the    term   “crimes        of   violence”      is   nowhere

defined in the Plea Agreement.

       A fundamental canon of contract construction is that “[a]

writing is interpreted as a whole.”                     Restatement § 202.            Most

commonly, the rule expressed in section 202 serves to harmonize

potentially conflicting provisions that may appear in divergent,

seemingly unrelated parts of the contract — the “writing” — to

ensure     that     that   each     term    is     given      proper     meaning       and

significance.        Just as importantly, however, the canon counsels

against    parsing      lesser     contract       components,       which     may     also

constitute “writings.”            The commentary to section 202 instructs

that   “[a]    word    changes     meaning       when    it    becomes      part      of   a

sentence, the sentence when it becomes part of a paragraph.                                A

longer writing similarly affects the paragraph, other related

writings affect the particular writing, and the circumstances

affect the whole.”           Id. § 202 cmt. d.                Thus, the ambiguity

attendant to the undefined term “crimes of violence” renders

uncertain the scope of the immunity conferred by Paragraph 4.f

of the Plea Agreement, such that we cannot be assured that the

provision     was     intended     to    convey    the       same   meaning      as    its

unambiguous counterpart in Smith.

                                           44
      We again keep in mind that all ambiguities in the Plea

Agreement   are    to    be    construed   against    the    government    as    its

drafter.    That being the case, we are content to adopt the

controlling rule in other circuits, expressed as follows:                       “The

common understanding . . . in the criminal justice world” of use

immunity    (which       the     government    acknowledges          Barefoot     to

possess),   is    that    such    immunity    means    the    same    in   a    plea

agreement as it does in 18 U.S.C. § 6002, which is to say “that

it   encompasses     derivative     use    immunity.”        United    States     v.

Plummer, 941 F.2d 799, 804 (9th Cir. 1991); see United States v.

Harper, 643 F.3d 135, 140 n.1 (5th Cir. 2011) (observing that

“[t]his Court has tended to interpret ‘use immunity’ as a term

of art that covers both direct and derivative use of immunized

statements”); United States v. Kilroy, 27 F.3d 679, 685 (D.C.

Cir. 1994) (expressing agreement with Plummer that “nothing else

appearing, an informal use immunity afforded by agreement, e.g.,

a plea bargain, includes derivative use immunity equivalent to

that afforded by [18 U.S.C. § 6002]”). 11


      11
        The unanimity of authority establishes that the terms
“use immunity” (as it is often called in writings) and its
“pocket” cousins (the more colorful, typically oral shorthand)
have acquired a meaning conterminous with § 6002, one readily
recognized among prosecutors, the criminal defense bar, and the
federal judiciary. See Harris, 973 F.2d at 336 (identifying the
source of use immunity in that case as “[t]he agreement between
Harris and the government . . . [that] operated as use and
derivative use immunity for compelled testimony”).       It is
(Continued)
                                       45
     Moreover, the parties’ inclusion of the crimes-of-violence

exception within the immunity provision persuasively indicates

that they did not intend that the government forbear from solely

direct use.         A promise to merely refrain from introducing the

defendant’s statements at trial is scarcely more than a crumb of

the challah that the government may seek to bestow.                     Presenting

nowhere    near     the    impediment      to   its   interests    as    the   more

constrictive      immunity       from    derivative   use,   the   government’s

portrayal of what use immunity should mean in Barefoot’s case

hardly    seems     a   burden   worth    taking   the   trouble   to    alleviate

through negotiations.            Rather than expose its trial tactics to

potential constitutional challenge, see Harris, 973 F.2d at 336

(detailing government’s appeal of indictment’s partial dismissal

on ground that it violated provisions of use immunity agreement,

infringing     on       defendant’s     Fifth   Amendment    privilege     against



therefore imperative that, if these terms are intended in a
particular instance to convey something other than § 6002 use
immunity, the government bear the burden of making that
different meaning explicit to the defendant. Were we to accept
as accurate the government’s characterization of the ambiguous
immunity provisions of the Plea Agreement, we would risk
radically altering the settled legal landscape that has
demonstrably been in place for more than thirty years, and
likely even longer. See United States v. Barber, 668 F.2d 778,
781-82 (4th Cir. 1982) (construing government’s implicit oral
representations as grant of “use immunity,” which supported
district court’s finding that defendant was assured that his
responses to interview questions “would not be used against him
directly or through leads gained therefrom”).



                                          46
self-incrimination), it is far more likely that the government

would strenuously bargain to maintain the option to prosecute in

the   event    that    the    debriefing       session   led    it    to    discover

theretofore     unknown      violent     misconduct      on    the   part    of   the

defendant.     We therefore conclude that Barefoot, pursuant to his

Agreement with the United States Attorney, was entitled to use

immunity as it is commonly understood, that is, immunity from

either direct or indirect (derivative) use, except to the extent

that his criminal acts constituted crimes of violence.

                                         ii.

      To decide whether any or all of Counts Four through Six

encompassed crimes of violence, we start with the proposition

that “where language has a generally prevailing meaning, it is

interpreted     in    accordance    with       that   meaning.”        Restatement

§ 202(3)(a).         Further, “technical terms and words of art are

given their technical meaning when used in a transaction within

their technical field.”         Id. § 202(b)(b).

      When    the    Plea    Agreement    was    executed      in    January   2003,

federal criminal litigants would have been most readily familiar

with the legal term “crime of violence” as set forth in the

November 2002 edition of the Sentencing Guidelines.                     As defined

therein and pertinent here, a crime of violence is “any offense

. . . punishable by imprisonment for a term exceeding one year,”

having “as an element the use, attempted use, or threatened use

                                         47
of physical force against the person of another, or . . . [that]

involves use of explosives, or otherwise involves conduct that

presents      a     serious     potential         risk    of     physical         injury       to

another.”      USSG § 4B1.2(a).

      Barefoot’s          conviction     in       Count    Four       of     receiving         an

explosive with the intent that it be used to kill, injure, or

intimidate, or to damage or destroy buildings, manifestly would

have been a crime of violence according to the parties’ mutual

understanding.              Hence,     the    government          was        unquestionably

entitled to the benefit of its bargain and in no way precluded

from using the information it procured from Barefoot during his

debriefing        to    investigate,     charge,         and    convict       him    of    that

offense.

      Our     conclusion       is    different      with       respect       to    Barefoot’s

Count Five conviction of improperly storing explosive materials,

and    also       his    conviction      under      Count       Six     of    distributing

explosive materials to a person not yet twenty-one.                               The storage

offense charged in Count Five, being a misdemeanor, could not

have qualified as a crime of violence.                          Count Six presents a

closer   question.            Though    the   conduct          therein       charged      is    a

felony, it is by no means certain that the routine distribution

of    explosive         materials,     typically      unaccompanied           by     physical

force, nevertheless entails their “use” such as to bring the

offense within the Guidelines definition.                       We are also unwilling

                                             48
to assume that every such distribution carries with it a serious

potential risk of injury to the recipient.                  For example, the

Kinestik cartridges at issue here, being a binary explosive,

were relatively harmless until mixed.

     We do not need to attempt any definitive resolution of the

question of whether the offense charged in Count 6 is or is not

a crime of violence.         It suffices to note that the issue is on

the edge.     The lack of clarity on the point inures to Barefoot’s

benefit, and we are constrained to determine that the government

violated the Plea Agreement when it prosecuted him on Count Five

and on Count Six.         Barefoot seeks reversal of those convictions

as his preferred remedy for the government’s broken promise, see

Br. of Appellant at 50, and we perceive no reason to withhold

the requested relief.         We therefore move on to ascertain the

effect on Barefoot’s sentence, if any, prompted by our erasure

of the two improper convictions.              To best accomplish that, we

first analyze whether the sentence was correctly imposed with

those convictions included.

                                      E.

                                      1.

     Barefoot challenges in two respects the district court’s

calculation    of   his    advisory   range    of   imprisonment     under   the

Guidelines.      At the outset, Barefoot contends that the court

erred   in    discerning    any   connection,       for   grouping   purposes,

                                      49
between his convictions of the firearms offenses in Counts One

and Two and his convictions involving explosives in Counts Three

through    Six.      The   perceived     association      between     the    stolen

firearms and the bombs that Barefoot made — or was preparing to

make — also served to increase the base offense level applied by

the court, which is likewise assigned as error.

       At the sentencing hearing, the district court adopted the

calculations set forth in the Presentence Investigation Report

(the “PSR”), using the 2002 edition of the Guidelines.                             The

purpose of grouping is to “determin[e] a single offense level

that    encompasses    all    the    counts   of   which    the     defendant       is

convicted.”       USSG Ch. 3, Pt. D, intro. comment. (2002).                        To

accomplish    this    task,    the     PSR    initially    combined     four       of

Barefoot’s six offenses of conviction into two groups:                      the two

firearms offenses charged in Counts One and Two (the “firearms

group”) and the explosives receiving and distributing offenses

charged in Counts Four and Six (the “explosives group”).                           See

USSG § 3D1.2(d), comment. (n.6) (providing that “most property

crimes . . . , firearms offenses, and other crimes where the

guidelines    are     based   primarily       on   quantity    or    contemplate

continuing behavior are to be grouped together”).

       The PSR then grouped the Count Three conviction with both

the firearms group and the explosives group on the ground that

the    solicitation    offense      therein   “embodie[d]     conduct       that    is

                                        50
treated     as     a    specific    offense      characteristic        in,   or   other

adjustment       to,     the   guideline     applicable        to    another    of   the

counts.”     USSG § 3D1.2(c). 12          The firearms offenses are governed

by Guidelines section 2K2.1, which provides for a base offense

level of 18 if “the offense involved a firearm described in 26

U.S.C. § 5845(a).”             Id. § 2K2.1(a)(5).         The referenced statute

defines certain extravagant weaponry such as sawed-off shotguns,

machine guns, silencers, and — as relevant here — “destructive

device(s).”        28 U.S.C. § 5845(a)(8).           Many types of weapons may

constitute a destructive device, including “any explosive [or]

incendiary . . . bomb,” id. § 5845(f), and the pipe bombs that

Barefoot     manufactured          and   detonated       (as    well    as     whatever

mechanism     he       contemplated      would   house    the       liquid   dynamite)

certainly qualify.

     The PSR increased Barefoot’s base offense level by six for

the number of firearms involved, see USSG § 2K2.1(b)(1)(C), by

two because of the involvement of a destructive device, see id.

§ 2K2.1(b)(3), and by two because one or more of the firearms

had been stolen, see id. § 2K2.1(b)(4).                   Barefoot also received

an upward adjustment of four levels for his role as an organizer

or leader, see id. § 3B1.1(a), and an additional two levels for

     12
        The PSR, without objection, grouped the Count Five
storage misdemeanor with the related offenses in the firearms
group.



                                           51
using       a    minor       to   assist    him    in     avoiding      detection,        see    id.

§ 3B1.4.              The resultant adjusted offense level of 34, cross-

referenced            with    Barefoot’s       criminal         history      category      of   II,

produced an advisory Guidelines range of 168 to 210 months of

imprisonment.                Because       none    of     the    offenses       of    conviction

entailed a maximum term of longer than 120 months, the district

court       comported         with    the    advisory      range       by    first    sentencing

Barefoot to the 60-month maximum on Count One.                                  The court then

directed that Barefoot serve a consecutive term of 120 months on

Counts Two through Four and Count Six, to run concurrently with

each     other.               The    court        last    addressed          the     Count      Five

misdemeanor, on which it imposed a 12-month term concurrent with

the aggregate 180-month sentence.

       Barefoot          protests      that       his    conduct       giving      rise    to    the

firearms offenses was wholly discrete from his possession and

use    of       destructive         devices,      and    thus    the    district      court     was

incorrect to connect the two.                            A compartmentalized approach,

according to Barefoot, would have resulted in a firearms base

offense level of 12 instead of 18, increased by 14 levels and

not 16, for an adjusted offense level of 26.                                Under the grouping

rules,          the    separately       considered         solicitation         conviction       in

Count Three, being predominant among the explosives offenses at

base offense level 24, would have added two levels.                                       See USSG

§ 3D1.4(a).             Using this method of calculation, Barefoot’s final

                                                   52
offense      level       of    28     would     have     resulted          in     an    advisory

Guidelines range of 87 to 108 months.

      The district court properly evaluated the charged criminal

conduct as a unitary whole.                  To calculate the base offense level

for   the    firearms         offenses,       the    court      was    bound      to    consider

together the entirety of Barefoot’s relevant conduct, including

“all acts and omissions committed, aided, abetted, counseled,

commanded,        induced,       procured,          or   willfully          caused      by    the

defendant     .    .     .    that    occurred      during      the    commission        of   the

offense of conviction, in preparation for that offense, or in

the course of attempting to avoid detection or responsibility

for   that    offense.”              USSG    § 1B1.3(a)(1).            In    so    doing,     the

court’s analysis need not have been strictly confined to the

conduct underlying the convictions; it was permitted to examine

as relevant “the conduct of other offenses insofar as they were

part of the same course of conduct.”                         United States v. McVey,

No. 13-4285, 2014 WL 1613908, at *3 (4th Cir. Apr. 23, 2014)

(internal quotation marks omitted).

      To     begin     with,     Barefoot’s         conduct      with       respect      to   the

explosives        took       place    during     the     same    time       as    the   ongoing

firearms      conspiracy.              See    McVey,      2014        WL    1613908,     at    *3

(instructing that time interval is one factor “appropriate to

the determination of whether offenses are sufficiently connected

or related to each other to be considered as part of the same

                                               53
course of conduct”).           Daniel, having been involved not only in

the theft and concealment of the firearms, but also in helping

his father conceal the liquid dynamite, provides a more direct

link unifying Barefoot’s activities; indeed, one of the stolen

firearms was recovered from Daniel’s residence along with the

Kinestik     explosives.        At    a    more   general       (but   yet   relevant)

level, Barefoot’s illegal possession of firearms and explosives

can together be seen as facilitating his Klan activities.

      Viewed    in    the   proper        context,   it    is    evident     that    the

district court did not clearly err in ascertaining a connection

between the firearms offenses and the explosives offenses.                           That

connection permitted the court to apply the higher base offense

level   to   the     firearms    offenses,        and   it   also      supported     the

court’s grouping of the various offenses for sentencing purposes

into what was, more or less, a unified whole.

                                           2.

      It is apparent from our detailed recitation of the district

court’s sentencing calculus that Barefoot’s convictions of Count

Five and Count Six had no material effect on his sentence.                            The

term of imprisonment associated with Count Six was ordered to

run   concurrently      with    the    same     terms     imposed      on   Counts    Two

through Four.        Among those convictions, Count Two determined the

advisory Guidelines range, and the grouping therewith of Count

Four would have achieved the same result with or without the

                                           54
addition of Count Six.             Compared to his serious felony offenses,

Barefoot’s misdemeanor conviction of Count Five and the twelve-

month    concurrent     sentence          imposed     thereon    was    virtually    an

afterthought.

      Consequently, as then-Judge Sotomayor observed in a similar

instance on behalf of the court of appeals in Burrell v. United

States, Barefoot’s circumstances present “one of the rare cases

. . . where our reversal of a conviction [does] not affect the

knot of calculations under the Guidelines,” obviating any need

to remand for resentencing.                 467 F.3d 160, 166 (2d Cir. 2006)

(internal     quotation       marks       omitted).       As    the    Fifth    Circuit

explained in United States v. Thomas, “[w]here it is clear that

a conviction that is being reversed did not cause a district

court to impose a harsher sentence on a conviction that is being

affirmed, remand for re-sentencing is not necessary.”                          690 F.3d

358, 372 (5th Cir. 2012); see United States v. Lopez, 42 F.3d

463, 469 (8th Cir. 1994) (acknowledging that defendant need not

be resentenced if conviction vacated on appeal “had no effect on

the     determination        of    .   .    .    Guidelines     ranges”        (internal

quotation marks omitted)); accord United States v. Introcaso,

506 F.3d 260, 272 (3d Cir. 2007); United States v. Fontana, 948

F.2d 796, 798 (1st Cir. 1991).

      The    court      in        Burrell       had   previously       reversed      the

defendant’s     conviction          for     conspiracy     to    distribute        crack

                                            55
cocaine on the ground that it was a lesser-included offense of

his   other    conviction        for    being      an   organizer   of   a   continuing

criminal enterprise.             Because the latter conviction carried a

mandatory     life      sentence,      the    Second     Circuit    remanded    to   the

district      court     for   it       to    perform     a   strictly    “ministerial

correction”       to     enter     “an      amended      judgment     reflecting     the

dismissal.”       Id.

      We do the same here.                   On remand, the district court is

simply to amend the judgment against Barefoot to dismiss Counts

Five and Six, nullifying the convictions and sentences relating

thereto.      In so doing, the court shall reduce Barefoot’s special

assessment from $525 to $400, in that the $25 assessed on the

Count      Five         misdemeanor           conviction,       see      18      U.S.C.

§ 3013(a)(1)(A)(iii), and the $100 assessed on the Count Six

felony conviction, see id. § 3013(a)(2)(A), are no longer valid

and enforceable components of the judgment.                         See Thomas, 690

F.3d at 372; Introcaso, 506 F.3d at 273.



                                             IV.

      Pursuant to the foregoing, we affirm Barefoot’s convictions

on Counts One through Four, but we reverse his convictions on

Counts Five and Six.               We remand this matter to the district

court with instructions to enter an amended judgment in



                                              56
conformance with this opinion.


                             AFFIRMED IN PART, REVERSED IN PART,
                             AND REMANDED WITH INSTRUCTIONS




                                 57
