                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 13-4373


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

LIONEL LAMONT COX,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Louise W. Flanagan,
District Judge. (5:12-cr-00288-FL-1)


Argued:   September 19, 2014             Decided:   November 6, 2014


Before WILKINSON, DUNCAN, and KEENAN, Circuit Judges.


Affirmed by unpublished opinion.        Judge Keenan wrote       the
opinion, in which Judge Wilkinson and Judge Duncan joined.


ARGUED: G. Alan DuBois, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Raleigh, North Carolina, for Appellant.      Shailika K. Shah,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.    ON BRIEF: Thomas P. McNamara, Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North
Carolina, for Appellant.      Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Joshua L. Rogers, Assistant
United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                2
BARBARA MILANO KEENAN, Circuit Judge:

     Lionel L. Cox was convicted by a jury of two counts of

possession of a firearm by a felon, and of aiding and abetting

Neville S. Ward, Jr. in the commission of the same offenses, in

violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 2.                                  The

district court sentenced Cox to serve a term of 100 months’

imprisonment.       On appeal, Cox contends that the district court

erred: (1) in admitting certain evidence of “bad acts” under

Federal   Rule     of    Evidence     404(b);         (2)   in    refusing     to    give    a

proposed jury instruction regarding the charge of aiding and

abetting;    and    (3)    in     applying        a   sentencing         enhancement    for

possession    of    three       or   more     firearms,          which    resulted    in     a

procedurally unreasonable sentence.                    Upon our review, we affirm

the district court’s judgment.



                                            I.

     The charges against Cox stemmed from his participation in

two incidents involving the sale of firearms to Selma Jerome, a

police informant.         These sales took place at Cox’s workplace, a

Texaco Express Lube in Smithfield, North Carolina (the Texaco),

where Cox first met Jerome and informed him that Cox had drugs

and firearms for sale.

     On   May      14,    2012,      Jerome       participated       in    a   controlled

purchase of a firearm at the Texaco (the May 14 incident).                                  To

                                              3
arrange the transaction, Cox placed a telephone call to Jerome,

informing him that Cox had a firearm for sale.                      When Jerome

arrived at the Texaco, Cox stated that Neville Ward would be

bringing the gun.     After about 30 minutes, Ward arrived with the

firearm, which was wrapped in a towel.                Because Jerome did not

want to handle the gun, he asked Cox to get a “gym bag” from

Jerome’s car.      Cox obtained the bag and went inside the Texaco

where he and Ward cleaned the firearm.                   Cox later gave Jerome

the bag containing the gun, and Jerome paid Cox $360.

     On June 27, 2012, Jerome participated in another controlled

purchase of a firearm involving Cox (the June 27 incident).                   Cox

again placed a telephone call to Jerome to tell him that Cox had

a firearm for sale.     After Jerome agreed to purchase the firearm

at the Texaco, Cox informed Jerome that Cox would not be present

but that Ward would conduct the transaction.                   Jerome arrived at

the Texaco where Ward gave him the firearm in exchange for $360.

After Jerome paid Ward, Jerome placed a telephone call to Cox

informing him that the transaction had been completed.

     In   August    2012,     a     grand      jury   returned     a   two-count

indictment against Cox for his role in the May 14 and June 27

incidents,   charging   him       with   two    counts    of   possession    of   a

firearm by a convicted felon and of aiding and abetting Ward, a

convicted felon, in the commission of the same offenses.                    Before

Cox’s trial, the government filed a notice of intent to present

                                         4
evidence under Federal Rule of Evidence 404(b) relating to a

third firearm transaction that occurred on May 21, 2012 (the May

21 incident).

       At trial, over Cox’s objection, the district court admitted

evidence that about a week before the May 21 incident, Cox had

asked Sherard Brunson, Cox’s acquaintance, whether Brunson had a

gun    for    sale.         After   Cox   and    Brunson   engaged      in     several

conversations regarding firearms, they agreed to sell a gun to

Jerome on May 21.

       Jerome   initially       planned     to   meet   Brunson    at    a    Wal-Mart

parking lot to conduct the firearm sale, but the meeting was

postponed when Brunson could not obtain the firearm.                     Later that

day, Cox directed Brunson to meet Jerome and Cox at the Texaco

to    carry   out     the    transaction.        When   Jerome    arrived      at   the

Texaco, Cox placed a telephone call to Brunson and directed him

to park his car in a certain location.                         Jerome and Brunson

entered the bathroom at the Texaco, where Brunson gave Jerome a

gun in exchange for $350.

       The district court gave the jury a limiting instruction

relating to this evidence of the May 21 incident.                            The court

told the jury that it could consider this evidence for purposes

of evaluating Cox’s “motive, opportunity, intent, preparation,

plan, knowledge, identity, or absence of mistake or accident.”

Additionally,       the     court   informed     the    jury    that    it    was   not

                                           5
permitted       to    consider        evidence         of   the     May    21     incident       as

evidence of Cox’s general bad character or of his propensity to

engage in criminal conduct.

       At the close of trial, the district court considered the

parties’       proposed       jury        instructions.            As    relevant       to     this

appeal,     Cox      submitted        a    jury       instruction        addressing      certain

proposed    principles             involving      aiding     and    abetting,         which     the

district     court         declined       to    give.        The    district       court       also

repeated       its         cautionary          instruction         limiting       the        jury’s

consideration of the evidence relating to the May 21 incident.

       After      the       jury     found       Cox    guilty      of     both       counts     of

possession of a firearm by a convicted felon and of aiding and

abetting the commission of these offenses, the district court

conducted the sentencing phase of trial.                           The probation officer

who prepared the presentence report (PSR) recommended a total

offense level of 24, which included a two-level enhancement for

Cox’s possession of three firearms, namely, one firearm during

each   of   the      May     14,     May    21,       and   June    27    incidents.           This

enhancement          was     applied       in     accordance        with      United      States

Sentencing        Guidelines         (U.S.S.G.)         § 2K2.1(b)(1)(A).               Applying

this   enhancement           and    other       sentencing     factors,         the    probation

officer recommended an advisory guidelines range of 63 to 78

months’ imprisonment.



                                                  6
      Based   on    the    seriousness      of    Cox’s    criminal      history   and

uncharged      conduct       involving          marijuana        distribution      and

possession     of    firearms      in      public    places,       the    government

requested that the district court sentence Cox to the statutory

maximum of 120 months, a term of imprisonment well exceeding the

recommended guidelines range.                  After considering the parties’

arguments     and    Cox’s    personal         statement    to    the    court,    the

district court adopted the PSR’s recommended guidelines range

but   concluded     that     an   upward       departure    was    warranted      under

U.S.S.G. §§     5K2.21 and 4A1.3, based on uncharged conduct, the

seriousness of Cox’s criminal history, and the likelihood that

Cox would commit other crimes.             The court sentenced Cox to serve

a term of 100 months in prison, and concluded that this sentence

also was justified based on the factors set forth in 18 U.S.C.

§ 3553(a).    Cox timely filed this appeal.



                                        II.

      Cox presents three arguments on appeal.                    He challenges: (1)

the admission of evidence under Rule 404(b) regarding the May 21

incident; (2) the rejection of his proposed jury instruction on

aiding and abetting; and (3) the procedural reasonableness of

his sentence.       We address these arguments in turn.




                                           7
                                             A.

       Cox    first   asserts      that      the     district        court    abused         its

discretion under Rule 404(b) in admitting evidence regarding the

May 21 incident, because such evidence was neither relevant nor

necessary to prove that he possessed firearms during the charged

incidents     of    May   14    and     June      27.      According         to       Cox,   the

challenged        evidence     failed        to     show    that      he     actually        or

constructively possessed the gun during the May 21 incident,

and,    instead,      impermissibly          showed       that   he    had        a    general

propensity to commit “bad acts.”                        Cox also argues that this

evidence should have been excluded as being unfairly prejudicial

under Rule 403.       We disagree with Cox’s arguments.

       We    review   for      abuse    of     discretion        a    district         court’s

admission     of    evidence     under       Rule    404(b).         United       States      v.

McBride, 676 F.3d 385, 395 (4th Cir. 2012); United States v.

Lighty, 616 F.3d 321, 351 (4th Cir. 2010); United States v.

Queen, 132 F.3d 991, 995 (4th Cir. 1997).                        Rule 404(b)(1) does

not permit “the admission of evidence of other wrongs or acts

solely to prove a defendant’s bad character.”                         Lighty, 616 F.3d

at 351.       However, such evidence is admissible when introduced

for another purpose, including to prove “motive, opportunity,

intent,      preparation,       plan,     knowledge,         identity,        absence         of

mistake,     or    lack   of    accident.”          Id.    (quoting     Fed.          R.   Evid.

404(b)(2)) (emphasis added).

                                             8
     We have explained that Rule 404(b) allows for admission of

evidence regarding uncharged “bad acts” if the evidence is “(1)

relevant to an issue other than the general character of the

defendant;       (2)    necessary   to   prove       an   element    of    the   charged

offense; and (3) reliable.” 1            Id. at 352 (citation and internal

quotation marks omitted).             Additionally, the probative value of

the challenged evidence cannot be substantially outweighed by

the “unfair prejudice” that would result from admission of the

evidence.    Id. (citing Fed. R. Evid. 403).

     In    the    present     case,    the       government   bore    the    burden    of

proving that Cox knowingly possessed the firearms during the May

14 and June 27 incidents.             Although evidence relating to the May

21 incident did not show whether Cox possessed a firearm on May

14   and   June        27,   the   challenged       evidence    was       relevant    and

necessary in establishing the element of knowledge.

     When considered in the context of the other evidence, the

evidence concerning the May 21 incident was relevant to show

that Cox actively and knowingly participated in a pattern of

procuring, possessing, and selling firearms.                   In the days before

the May 21 incident, Cox questioned Brunson about whether he had


     1
       In the present case, Cox addresses only the issues of
relevance and necessity. He does not challenge the reliability
of the testimony given by Jerome and Brunson regarding the May
21 incident.



                                             9
a firearm for sale.                 Cox directly was involved in arranging for

Brunson to sell Jerome a firearm at Cox’s workplace when Cox

would    be       present      at    that    location.             Cox’s     conduct        included

discussing the price of the firearm with Brunson and Jerome, as

well    as    directing          Brunson     where      to    park    his       vehicle      at   the

Texaco.

       The        timing      of    the     three      firearm       transactions            further

demonstrates the relevance of the May 21 incident.                                         Over the

course       of    only    six      weeks,    Cox      participated        in    three       firearm

sales at his workplace.                    The May 21 incident occurred one week

after the first charged offense and four weeks before the second

charged offense, supporting the district court’s conclusion that

the    May    21    incident        was     related     sufficiently            to   the     charged

offenses for purposes of Rule 404(b).                                See United States v.

Johnson, 617 F.3d 286, 297 (4th Cir. 2010) (explaining that the

closer a prior act is related to the charged conduct in time,

pattern, or state of mind, the greater the potential relevance).

       Evidence regarding the May 21 incident also was necessary

to show that Cox knowingly possessed a firearm on May 14 and

June    27.          During        Cox’s     opening     argument          to    the    jury,     he

contended          that       his     involvement            in     the      charged         firearm

transactions            was    limited       to     introducing           Jerome,       a    Texaco

customer          who   wanted       to    purchase       a       firearm,      to     Ward.      By

suggesting that he was an innocent “matchmaker,” Cox placed in

                                                  10
dispute the issue whether he knowingly possessed a firearm on

May 14 and June 27.       The government’s evidence regarding the May

21 incident, including testimony from both the buyer and the

seller regarding Cox’s active role in the transaction, directly

refuted Cox’s “innocent matchmaker theory” and established Cox’s

knowing participation in the acts charged in the indictment.

Therefore, we conclude that the evidence concerning the May 21

incident    was    both   relevant       and    necessary      to    proving    the

knowledge element of the charged offenses.                 See Lighty, 616 F.3d

at 352.

       We   further    conclude    that,        in     view   of    the    limiting

instruction provided by the district court, the evidence of the

May 21 incident was not unduly prejudicial under Rule 403.                      See

Queen, 132 F.3d at 997 (explaining that when a judge gives a

404(b) limiting instruction and when the defendant is properly

notified of the government’s intent to admit evidence under Rule

404(b), fear of prejudice subsides).                 The jury was instructed in

very   clear   terms   that   it   was    not    permitted     to   consider    the

evidence of the May 21 incident as showing Cox’s propensity to

commit criminal acts or his general bad character.                        Also, the

district court properly explained that the evidence only could

be considered for limited purposes, including proving whether

Cox knowingly participated in the criminal acts charged in the

indictment.       Accordingly, we hold that the district court did

                                         11
not abuse its discretion in admitting evidence relating to the

May 21 incident.

                                       B.

     Cox    next    asserts     that   the     district   court    erred    in

instructing the jury with respect to the charge that he aided

and abetted Ward in the knowing possession of a firearm by a

felon.     Cox primarily focuses on the court’s failure to give a

proposed instruction that would have required the jury to find

that Cox had actual knowledge of Ward’s status as a convicted

felon.      However,    after    examining      the   present     record   and

applicable authority, we conclude that Cox did not preserve this

issue for appeal.

     Under Federal Rule of Criminal Procedure 30(d), a defendant

who disagrees with any jury instruction, or the district court’s

failure to give a proposed instruction, must inform the court of

the grounds for objection before jury deliberations begin.                 When

a defendant has failed to object in accordance with this Rule,

his argument on appeal is subject to plain error review.                    See

Fed. R. Crim. P. 30(d); United States v. Nicolaou, 180 F.3d 565,

569 (4th Cir. 1999).

     In    the     present    case,    after    denying    Cox’s     proposed

instruction requiring that the jury find he actually knew Ward

was a convicted felon, the district court instructed the jury

more generally.      The instruction given by the court stated that

                                       12
to convict Cox of aiding and abetting under Section 922(g), the

government     must       establish      that     Cox    (1)    “knew    that    the    crime

charged      was    to    be     committed      or      was    being    committed;”       (2)

“knowingly did some act for the purpose of aiding or encouraging

the   commission          of    [the]    crime;”        and    (3)     “acted    with     the

intention of causing the crime charged to be committed.”                                  Cox

did not object to this instruction, nor did he object to the

court’s failure to give his proposed instruction.                           We therefore

review for plain error Cox’s challenge to the district court’s

failure to give his proposed jury instruction.

      To establish plain error, a defendant must show (1) that

the district court committed an “error” (2) that was “plain,”

and   that    (3)    the       error    affected     the      defendant’s       substantial

rights, impacting the outcome of his trial. 2                           United States v.

Olano, 507 U.S. 725, 732 (1993); United States v. Woods, 710

F.3d 195, 202 (4th Cir. 2013) (citation omitted).                           “An error is

plain ‘if the settled law of the Supreme Court or this circuit

establishes        that    an   error    has    occurred.’”            United    States    v.

Carthorne, 726 F.3d 503, 516 (4th Cir. 2013) (quoting United

States v. Maxwell, 285 F.3d 336, 342 (4th Cir. 2002)); see also

      2
       If the defendant establishes these elements, “we may
nevertheless decline to notice the error unless it seriously
affects the fairness, integrity or public reputation of judicial
proceedings.”   United States v. Woods, 710 F.3d 195, 202 (4th
Cir. 2013) (citation and internal quotation marks omitted).



                                             13
United    States       v.   Wynn,   684       F.3d   473,   480   (4th    Cir.   2012)

(holding that any error was not plain when this court had never

addressed the issue, and other circuits are split on the issue).

     Neither this Court nor the Supreme Court has addressed the

issue whether the government must prove that a defendant charged

with aiding and abetting under Section 922(g) was aware that the

principal actor is a convicted felon.                   Additionally, our sister

circuits are not in accord on this issue.                   Compare United States

v. Gardner, 488 F.3d 700, 716 (6th Cir. 2007) (requiring the

government to establish the defendant “knew or had cause to know

of” the principal’s status as a felon), and United States v.

Xavier,    2    F.3d    1281,    1286-87       (3d   Cir.   1993)      (requiring     the

government      to   establish      the   defendant     “knew     or    had   cause    to

believe”       the   principal      was   a    convicted    felon),      with    United

States v. Canon, 993 F.2d 1439, 1442 (9th Cir. 1993) (stating

that the government did not have to prove that the alleged aider

and abettor knew the principal was a felon).

     In the absence of controlling precedent and in view of the

inconsistent holdings of other circuits, we cannot conclude that

any error in failing to grant Cox’s requested instruction was

plain.     See Carthorne, 726 F.3d at 516; Wynn, 684 F.3d at 480.

Accordingly, we hold that the district court did not plainly err

in instructing the jury on the charges of aiding and abetting.



                                              14
                                              C.

      Cox      also        argues     that    his     sentence        is        procedurally

unreasonable, because there was insufficient evidence to support

application of the enhancement under U.S.S.G. § 2K2.1(b)(1)(A)

for possession of three or more firearms during the May 14, May

21,   and     June    27    incidents.        According     to    Cox,      the     evidence

failed to show that he possessed a gun at any point during the

May 21 incident when Brunson sold a gun to Jerome.

      In      response,      the    government       contends     that      any    error    in

applying      this    enhancement       was     harmless,    because        the     district

court nonetheless would have imposed the same sentence based on

the   factors        in     18   U.S.C.      § 3553(a).         We    agree       with     the

government’s contention.

      When reviewing a district court’s imposition of sentence,

we apply a deferential abuse-of-discretion standard.                                Gall v.

United      States,       552    U.S.   38,     51   (2007).         As     a     matter   of

procedure, a district court must begin its sentencing proceeding

with a correct calculation of the applicable guidelines range.

Id.      If    the    court      commits     procedural     error,         such    error   is

harmless when (1) the district court would have imposed the same

sentence       absent      the     procedural      error,   and      (2)    the     sentence

imposed is reasonable.                United States v. Savillon-Matute, 636

F.3d 119, 123-24 (4th Cir. 2011).



                                              15
       At the sentencing hearing, the district court provided two

independent         bases     for    imposing        a    sentence       of   100     months’

imprisonment,         which     sentence       was       higher      than     the    advisory

guidelines sentencing range of 63 to 78 months.                                   First, the

court    adopted       the     government’s           argument       that     a     departure

sentence      was     warranted        based       on     Cox’s      uncharged      criminal

conduct,      the    seriousness       of     Cox’s      criminal     history,       and   the

likelihood     that     Cox    would        commit      other   crimes.        Second,     the

court stated in the alternative that it would impose a variant

sentence of 100 months based on the factors listed in Section

3553(a).      In accordance with these factors, the court considered

Cox’s    criminal      history        and    addressed        his    dangerousness,        his

likelihood to commit future crimes, his unwillingness to take

responsibility for his actions, and his lack of respect for the

law.     See 18 U.S.C. § 3553(a).                    The court held that based on

these considerations, as well as Cox’s particularly self-serving

allocution, a sentence of 100 months was appropriate but “not

greater than necessary” under Section 3553(a).

       In view of this analysis under Section 3553(a), we conclude

that    the   district       court     demonstrated           reasoned      decision-making

and applied the statutory sentencing factors to the particular

circumstances of Cox’s case.                   Accordingly, even if we assume,

without deciding, that the district court erred in applying the

challenged     sentencing           enhancement,         we   hold   that     the    district

                                              16
court     reasonably   imposed   the    same   sentence   under   Section

3553(a), and that, therefore, any error in determining Cox’s

guidelines range was harmless.         See Savillon-Matute, 636 F.3d at

123-24.



                                  III.

    For these reasons, we affirm the district court’s judgment.



                                                                  AFFIRMED




                                   17
