                             PUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 13-4138


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

DEANGELO MCLAURIN,

                Defendant - Appellant.



                            No. 13-4139


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

NICHOLAS LOWERY,

                Defendant - Appellant.



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


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


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


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




                               2
TRAXLER, Chief Judge:

      Working with disgruntled drug couriers, defendants Deangelo

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

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

the   supposed      drug   couriers    were     undercover       law    enforcement

officers.      McLaurin     and   Lowery     were     arrested    and    ultimately

convicted of various conspiracy and firearms charges.                       Finding

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

defendant McLaurin, however, we vacate his sentence and remand

for resentencing.

                                        I.

      On February 23, 2011, a confidential informant introduced

defendant McLaurin to undercover police officer Rolando Ortiz-

Trinidad of the Charlotte Mecklenburg Police Department.                    At the

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

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

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

then exchanged telephone numbers in order to contact each other

about future transactions.            Two days later, Ortiz and McLaurin

met for a second transaction in which McLaurin sold Ortiz a

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

Officer Ortiz and offered to sell him a third firearm.

        Following    the   firearms     transactions,        the       confidential

informant     identified     McLaurin      as   a    potential     target   for   a

                                        3
reverse sting operation known as a home-invasion investigation

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

law    enforcement         technique     in     which          law    enforcement        officers

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

stash house and then provide them with the opportunity to commit

the    crime.        The     officers        who   participate             in    this    type    of

undercover      operation         receive      specialized            training     and     employ

techniques      to    weed       out   individuals         who       are    not    inclined      to

commit      the      robberies,         including              changing         locations       and

scheduling several meetings in advance of the planned robbery.

The    purpose       of     these      obstacles          is     to     give      targets       the

“opportunity        to     not   participate         in    this       particular        style    of

robbery.”       J.A. 144.

       On   March     9,    2011,      the    confidential            informant     introduced

McLaurin to two different undercover officers -- ATF Special

Agent Shawn Stallo and his partner Task Force Officer Ashley

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

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

confidential informant, and the Undercover Officers were present

at all times.

       During     the      meeting,      the       Undercover          Officers         posed    as

disgruntled       drug       couriers        for     a     Mexican         drug    trafficking

organization (the Organization), and expressed their desire to

steal drugs from a stash house belonging to the Organization.

                                               4
Agent Stallo told McLaurin that he regularly picked up cocaine

from various rental houses used by the Organization as stash

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

stash houses.      According to the cover story that Agent Stallo

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

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

men; the Organization constantly changed which stash house held

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

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

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

Stallo proposed to keep two kilograms of the stolen cocaine for

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

robbing   the    stash     house    could       keep    the    balance     because        they

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

      In response, McLaurin indicated that he was interested in

the   robbery,     assuring      the      Undercover          Officers     that      he    had

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

Undercover      Officers    that     he    would       have    to    obtain      a    firearm

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

discussing the type of firearm required for the job, McLaurin

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

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

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

to help him in the robbery.

                                            5
     Consistent with his training, Agent Stallo made clear to

McLaurin several times during the meeting that he did not have

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

telling    McLaurin        to   take     a   few     days    to    consider      whether    he

wanted to participate.                If McLaurin still wanted to participate,

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

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

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

in touch and that they would meet again.

     A little over two weeks went by without the case agents

being   able     to    contact         the   confidential          informant      to     learn

whether     McLaurin         had      expressed       interest       in    the    potential

robbery.         As    a    result,      Agent       Stallo       attempted      to    contact

McLaurin    by    telephone.            McLaurin       called      back   within       minutes

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

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

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

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

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

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

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

on audio.

    During       the       meeting,     McLaurin       and    Lowery      discussed      their

specific    plans      for      the    robbery.         McLaurin      stated      that    upon

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

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

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

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

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

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

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

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

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

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

cocaine     that    McLaurin       and    Lowery     planned    to    steal,     Lowery

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

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

       During the discussion, Lowery stated that there were “three

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

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

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

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

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

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

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

the plan.

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

McLaurin     and    Lowery     and       again    recorded     the   meeting.        The

                                             7
Undercover    Officers       went    over      the     details     of    the    planned

robbery, and McLaurin and Lowery confirmed their commitment to

the plan.     Lowery mentioned purchasing an assault rifle for the

robbery, characterizing the expenditure as an investment.                            In

discussing    the     specifics     of   the    robbery,     McLaurin      reiterated

that his plan was to get everyone on the ground.

      In    the     days     following         the      meeting,        Agent    Stallo

corresponded with McLaurin nearly every day in calls or text

messages initiated by both parties.                   During the course of those

conversations, Agent Stallo told McLaurin that the robbery would

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

him the location.           The Undercover Officers set up an initial

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

the firearms and other tools necessary for the robbery and to

identify    any   other     individuals        that    McLaurin    and     Lowery    had

recruited to participate in the robbery.                   After the preliminary

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

facility that was under law enforcement control so that they

could safely make the arrests.

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

as   scheduled.         When     McLaurin       and     Lowery     spoke    with     the

Undercover Officers, Lowery pointed to another vehicle parked

nearby and indicated that the individual in the car would join

in   the   robbery.        The   Undercover      Officers    then       drove   to   the

                                          8
storage facility, with McLaurin and Lowery following in their

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

Undercover Officers and McLaurin and Lowery entered the parking

lot,    but     the     unknown         participant        drove     past     the     storage

facility.            When    Lowery      and    McLaurin      arrived,       Agent     Stallo

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

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

       Agent    Stallo          then    asked   McLaurin      whether       they     had   the

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

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

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

wait    on     the     other      participant,       Agent     Stallo       initiated      the

arrests of McLaurin and Lowery, concerned that either one of

them could relay a message to the other unknown individual.

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

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

toboggan      hat.          Concerned     that      the    guns     were    in   the    other

vehicle, Agent Stallo instructed the surveillance team to be on

the lookout for the suspected third participant and told them to

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

with    a      helicopter         and     several         additional       officers,       law

enforcement was unable to locate the third participant or his

vehicle.



                                                9
      Following their arrests, both McLaurin and Lowery waived

their Miranda rights and agreed to speak with law enforcement.

McLaurin admitted that he was supposed to meet Agent Stallo that

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

providing       several    explanations         of    what     the    “job”      entailed,

McLaurin eventually admitted that the plan was to go into a

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

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

asserting       that   although    he    asked       Agent   Stallo        to   get       him   a

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

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

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

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

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

however, he admitted to his participation in the transactions

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

woods.

      In his statements to law enforcement, Lowery denied any

involvement in the planned robbery.                   Lowery acknowledged meeting

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

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

would     not    participate.           Lowery       claimed       that    he    was       only

providing McLaurin a ride to the storage facility and denied any



                                           10
knowledge      of     the    other    car    that        the     Undercover         Officers

suspected contained the firearms and the third participant.

      McLaurin and Lowery were each ultimately charged with three

counts    of    conspiracy      arising      directly          from    the       stash-house

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

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

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

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

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

furtherance      of    a    crime    of   violence       and     a    drug       trafficking

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

conspiracy      counts,      McLaurin     was      charged      with       two    counts   of

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

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

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

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

caliber      pistol    and    sawed-off      shotgun        during      the       undercover

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

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

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

      McLaurin        and      Lowery       each         moved        to         sever     the

felon-in-possession           counts        from      the        conspiracy          counts,

contending that the counts were unrelated.                           The district court

granted the motion with respect to Lowery but denied it with

                                            11
respect to McLaurin.            McLaurin and Lowery were tried together

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

on an entrapment defense.               The jury rejected the defense and

convicted McLaurin and Lowery on all three conspiracy counts and

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

district court sentenced McLaurin to 151 months in prison and

Lowery to 168 months.           These appeals followed.

                                         II.

      The    Defendants         first   challenge        the     district   court’s

instructions on their entrapment defense.                 “Although we review a

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

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

instructions     incorrectly       stated      the    law.”      United   States    v.

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

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

      Entrapment     is    an    affirmative     defense       consisting   of   “two

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

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

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

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

the   jury    that   the    elements     of     the    defense    were    government

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

court then explained the manner in which the defense operates:



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

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

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

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

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

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

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

instructions;     instead,     they        challenge     the   supplemental

instruction given after the jury requested clarification of the

term “inducement.”




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

instructed the jury that “inducement requires more than mere

solicitation by the government.                Inducement is a term of art

necessitating government overreaching and conduct sufficiently

excessive     to   implant    a    criminal    design    in    the    mind   of   an

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

Defendants     contend      that   the    underlined     language       improperly

permitted the jury to reject the entrapment defense based on a

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

not overreached, without ever considering the core issue of an

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

63 (describing predisposition as “the principal element in the

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

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

unobjected-to general entrapment instructions quoted above made

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

elements and that the defense could be rejected on either the

inducement prong or the predisposition prong.                  The supplemental

“inducement”       instruction     did   not    remove      the     predisposition

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

upon    general     instructions     did.        Instead,     the     supplemental

instruction simply elaborated on the circumstances that can be

considered inducement, and did so in a manner consistent with

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

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

involves     elements      of    governmental       overreaching      and    conduct

sufficiently excessive to implant a criminal design in the mind

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

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

                                         III.

      The Defendants next contend that the district court erred

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

Federal Rules of Evidence.             McLaurin contends the court erred by

admitting evidence that McLaurin had been convicted of common

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

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

                                          A.

      Rule 404 generally prohibits evidence of other crimes or

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

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

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

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

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

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

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



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

met:

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

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

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

that proving predisposition is one of the purposes for which

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

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

prior acts intended to rebut an entrapment defense falls within

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

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

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

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

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

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

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

been so considered.”).




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

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

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

defendant’s       state    of    mind      before   government         agents    make    any

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

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

predisposition       inquiry        is   on   “whether     the    defendant       was     an

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

availed himself of the opportunity to perpetrate the crime.”

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

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

Burkley, 591 F.2d at 922.

       The assertion of an entrapment defense does not justify

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

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

distinguishing       the    unwary       innocent       from    the    unwary    criminal

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

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

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

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

                                              17
character        and        criminal             past,     is         relevant         to       proving

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

“the     character         of        the     defendant,         including           past       criminal

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

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

reputation       of       the    defendant,             including          any    prior        criminal

record”    is       relevant          to    establishing          predisposition);               United

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

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

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

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

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

Given     the       range        of        evidence       that        is     relevant          to     the

predisposition issue, certain bad-act evidence may be admissible

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

admissible       in      cases       where       entrapment       is    not       an   issue.        See

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

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

offered    precisely            to    show       propensity,       they       are      more     broadly

applicable,         and     their          use     is    not     subject          to     the    normal

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

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

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

defense    to       criminal         liability,         prior    bad       acts     relevant        to    a

                                                   18
defendant’s    predisposition         to    commit        a     crime     are     highly

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

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

seeks acquittal by reason of entrapment he cannot complain of an

appropriate    and   searching       inquiry   into       his       own   conduct      and

predisposition as bearing upon that issue.                    If in consequence he

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

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

we turn now to the specific claims raised on appeal.

                                       B.

      Lowery argues that the district court erred by permitting

the   government     to    introduce       evidence       establishing          that   he

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

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

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

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

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

court concluded that there was no logical relationship between

the firearm count and the conspiracy counts, thus making joinder

improper.

      At trial, Lowery suggested through his cross-examination of

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

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

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

                                       19
possessed a gun at such meeting.                       The government subsequently

argued   that      such    questioning    opened         the   door   to      evidence    of

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

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

reasoned:

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

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

to   establish       Lowery’s    possession        of    the   firearm        through    the

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

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

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

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

when searching Lowery’s car.

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

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

predisposition        to    commit    such     a   robbery      and   the      intent     to

actually carry it out.               Evidence tending to prove that Lowery

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

conduct the proposed stash-house robbery was relevant to the

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

Lowery’s prior possession of a firearm showed his familiarity

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

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

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

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

law    enforcement    experience       and     eight      years      of    military

experience.    Given Lowery’s recorded statements that the planned

robbery    called    for    the    powerful    weapons      that     could    “chop

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

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

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

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

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

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

predisposition, however, the past conduct need not be identical

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

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

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

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

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

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

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

included   offenses    of    the    sort    charged;      although    it     is   not

necessary that the past conduct be precisely the same as that

for    which   the    defendant      is     being   prosecuted.”          (internal

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

is     similar     enough       to    establish           predisposition         because       it

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

success of the planned robbery depended on Lowery and McLaurin

being willing to sufficiently arm themselves.                                 See Lewis, 641

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

properly      admitted         to    prove       predisposition          to    commit        armed

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

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

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

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

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

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

given     that      the       government          bears     the      burden      of     proving

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

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

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

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

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

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

circumstances, we cannot say that the district court abused its

discretion        by    admitting         the    challenged         evidence.          See     id.

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

should be struck in favor of admissibility, and evidence should

                                                 22
be    excluded      only        sparingly.”          (internal          quotation        marks

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

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

discretion    unless      its    decision       to    admit       evidence     under      Rule

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

      Moreover,     even    if    the     evidence         were    prohibited       by    Rule

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

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

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

(“A   district      court     may      allow     testimony         on    redirect        which

clarifies     an    issue     which      the    defense       opened      up   on    cross-

examination        even         when      this        evidence           is     otherwise

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

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

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

no evidence suggested that he actually possessed a gun at that

meeting,    the    district       court    did       not    err    in    permitting        the

government to introduce the evidence of his prior possession of

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

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

the meeting and his talk of weapons that could chop ligaments

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

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

firearm.

                                           23
                                           C.

       McLaurin contends the district court violated Rule 404(b)

by admitting a judgment and commitment order establishing that

he had been convicted of common law robbery in 2003.

       The   district        court     initially      excluded     all       of    the

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

court    revisited     its     ruling,      however,     after    the       following

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

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

       A [Agent Stallo]. Yes.

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

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

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

       A. No, ma’am.

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

questioning left the jury with the misimpression that there was

no   proof   that    McLaurin        had   previously    committed      a    robbery.

Counsel for McLaurin, however, argued that she had carefully

limited her questions to whether Stallo had proof that McLaurin

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

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

involve drug dealers.

       After   reviewing     the    transcript         of   the    questioning,      the

district court agreed with the government’s position:

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

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

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

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

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

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

government     to   introduce       evidence      of   McLaurin’s      2003    robbery

conviction.

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

While McLaurin presses on appeal his view that his questions

were   limited      to   whether    there        was   proof   that   McLaurin       had

previously robbed drug dealers, we are not convinced that the

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

was   evidence    that   McLaurin   had    engaged    in    “that   type    of

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

have understood as a broader reference to robberies in general.

The district court was in the best position to determine the

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

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

the door to previously excluded evidence was a matter within the

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

court abused its discretion by concluding that McLaurin opened

the door to the introduction of the challenged evidence.                   See

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

(“Despite the distinction between a conviction and a youthful

offender adjudication, it would be unfair to the government to

permit a defendant who had been adjudicated a youthful offender

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

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

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

                                    IV.

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

in-possession counts from his conspiracy counts on the ground

that such counts were improperly joined under Federal Rule of

Criminal Procedure 8.       Alternatively, McLaurin sought severance

under Federal Rule of Criminal Procedure 14.           The district court

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

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

contends    the      district          court      erred        by     denying    his    misjoinder

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

McLaurin contends that the misjoinder of the counts prejudiced

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

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

therefore       asks       us    to    vacate        his       conspiracy       convictions   and

remand for retrial on the conspiracy counts alone.

     Rule       8     of        the        Federal        Rules     of    Criminal      Procedure

authorizes the joinder of multiple counts against a defendant

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

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

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

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

third alternative prongs of this rule “flexibly, requiring that

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

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

(internal       quotation         marks       omitted).             Joined   offenses      have   a

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

“when    consideration            of       discrete       counts       against    the    defendant

paints     an       incomplete             picture        of    the      defendant’s     criminal

enterprise.”         Id.



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

defendants’          misjoinder       motion      to     determine          if    the     initial

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

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

joinder        was         not       proper,          however,         we        review     this

nonconstitutional error for harmlessness, and reverse unless the

misjoinder resulted in no actual prejudice to the defendants. .

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

       We     find     no    reversible         error      in    the     district         court’s

determination that the offenses were properly joined. 2                                 We agree

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

possession          offenses         are       logically        related.            The     same

confidential informant who introduced McLaurin to the undercover

officer who purchased the firearms also introduced McLaurin to

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

evidence       of    the    felon-in-possession             counts          establishes     with

temporal congruity that McLaurin stood at the ready to consider

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



                                                28
meeting       about      a    criminal    opportunity             with   anyone       whom   the

confidential        informant      suggested          could       provide      him    with   such

opportunity.          From the fact that McLaurin had experienced two

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

directly       attributable        to     the        same     confidential           informant’s

introduction, the jury could reasonably infer that McLaurin had

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

have had absent his history of prior successful outcomes with

criminal       opportunities           sent     his         way    by    the     confidential

informant.

       Moreover, the jury heard through the testimony of Agent

Stallo and the recorded meetings McLaurin’s statements that he

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

his    gun,    which         further    establishes          the    logical      relationship

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

counts have a logical relationship to his conspiracy counts in

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

enterprise.

       Even if we were to conclude that the counts were improperly

joined,       we   still       would    not   reverse,            because   the      misjoinder

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

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

obligates          the        government         to         prove        the         defendant’s

predisposition, and proving predisposition is one of the “other

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

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

McLaurin’s two firearm sales would have been admissible under

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

McLaurin therefore suffered no actual prejudice from any error.

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

in joinder of offenses and defendants was harmless where the

evidence of the improperly joined counts likely would have been

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

       The   evidence    underlying        McLaurin’s        felon-in-possession

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

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

admissible.         McLaurin     raised      an    entrapment     defense,      thus

requiring     the   government    to    prove      his   predisposition.         The

evidence     that   McLaurin,    just     weeks     before   he   joined   in    the

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

tends to show that McLaurin was familiar with firearms and had

the ability to obtain the weapons necessary to carry out the

planned robbery.

       Moreover, one of the weapons McLaurin sold to Officer Ortiz

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

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

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

Ortiz   testified     that   McLaurin      seemed     “comfortable”    with      the

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

shotguns       are        “inherently       dangerous        and       generally         lacking

usefulness, except for violent and criminal purposes.”                                   United

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

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

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

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

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

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

Amendment does not protect those weapons not typically possessed

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

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

familiarity with an inherently dangerous weapon useful only for

violent,    criminal         purposes      is    highly     probative         of    McLaurin’s

predisposition to engage in a very dangerous armed robbery.                                 See

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

conviction properly admitted to prove predisposition to commit

armed robbery of purported stash house).

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

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

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

possession charges.               McLaurin thus suffered no actual prejudice

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



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

412.

       Our conclusion in this regard also forecloses McLaurin’s

contention that the district court erred in denying his Rule 14

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

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

indictment     .    .    .   appears     to    prejudice      a    defendant       or    the

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

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

we were to assume that the district court abused its discretion

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

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

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

prejudice McLaurin, and reversal is not required, see United

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

under   Rule   14       is   required    only      if   the   defendant    shows        that

requiring him to defend against the joined offenses in the same

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

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

charges with the conspiracy charges.

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

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

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

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

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

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

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

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

different      firearms,     nothing         ties      them    together    except      the

defendant.         There are no additional factors which indicate the

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

concluded that the joinder error was not harmless because the

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

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

remaining charges and therefore would not have been admissible

had separate trials been conducted.                    Id. at 705.

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

joinder   of    charges     against      a    single     defendant.        The   Hawkins

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

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

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

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

logical relationship and thus “are connected with or constitute

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

in Hawkins was not harmless does not prevent us from concluding

otherwise in this case.            Because the defendant in Hawkins did

not assert an entrapment defense, his predisposition was not at

issue.    As previously discussed, the assertion of an entrapment

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

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

                                                V.

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

McLaurin argues that the district court erred by accepting the

PSR’s       calculation        of         his        criminal    history       category.

Specifically, McLaurin contends the PSR erroneously assessed a

total of three criminal history points for two 2003 common law

robbery convictions, because McLaurin committed such robberies

at    age   sixteen.       McLaurin        contends       the   error    increased    his

sentencing range under the United States Sentencing Guidelines

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

imprisonment.         McLaurin admits that he did not object to the

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

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

52(b).

       To obtain relief under plain-error review, McLaurin must

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

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

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

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

affects the fairness, integrity or public reputation of judicial

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

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

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

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

the    record    to       conclude    that     the    district        court    would   have

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

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

       The    government       concedes        that     there     was    error    in     the

calculation       of       McLaurin’s        criminal    history        that     increased

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

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

of the sentencing hearing provides a non-speculative basis for

us to conclude that the district court would have given McLaurin

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

McLaurin’s      correctly          calculated        sentencing       range    under     the

advisory Guidelines was 121 to 151 months’ imprisonment.                                 The

district court, through several comments at sentencing, made it

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

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

weight of the fictitious drugs contained in the fictitious stash

house.       These concerns, when considered along with the district

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

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

speculative basis for concluding that the district court would

have    imposed       a    sentence     of    less     than     151     months   had     the

Guidelines      range       been    properly       calculated.          And    because    we

                                              35
believe that allowing this error to stand would seriously affect

the   fairness,    integrity     or    public   reputation   of     judicial

proceedings, we exercise our discretion to correct the plain

error in calculating McLaurin’s Guidelines’ range by vacating

his sentence and remanding for resentencing.

                                      VI.

      Accordingly, for the foregoing reasons, we hereby affirm

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

sentence   and    remand   for   resentencing     consistent      with   this

opinion.

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

                                                     No. 13-4139 AFFIRMED




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

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

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

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

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

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

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

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

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

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

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

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

boundaries, I respectfully dissent.



                                             I.

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

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

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

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

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

allow     joinder       when    “the     joined     offenses    have       a     ‘logical

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

discrete      counts     against       the    defendant    paints     an       incomplete

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

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

Court   reviews         de    novo       the   question    of    whether       charges    were

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

      The   government             contends      that   joinder    was    proper       because

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

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

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

this argument, the government points out that the confidential

informant who introduced McLaurin to the undercover agent for

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

possession charges also introduced him to Special Agent Shawn

Stallo,     the     undercover           agent    who     proposed     the     stash      house

robbery.          The    government            also   avers     that    “law      enforcement

identified        McLaurin          as     a     target    for     the     home      invasion

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

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

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

in the home invasion investigation begins with the two firearms

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

possession        counts       were      logically      related    to    the       conspiracy

counts.”

      The government made a similar argument that two charges

were logically related because they stemmed from a single law

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

case, this Court considered whether the lower court erred in

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

attempted murder for hire.              Law enforcement officials found the

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

when they arrested the defendant for the planned murder.                         433

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

logically related because “the firearm count was based on the

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

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

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

argument and concluded that the discovery of the gun during the

murder-for-hire investigation established only a temporal link

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

which was insufficient to create a logical relationship between

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

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

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

the Court ultimately found that the district court had properly

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

(emphasis omitted).             Specifically, after officers arrested the

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

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

arrest him.       Id. at 384, 387.

                                          39
       Cardwell establishes that a relationship between the law

enforcement investigations into two crimes does not render those

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

contention that law enforcement officials identified McLaurin as

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

sales    is     therefore      beside    the    point.          Accordingly,        the   only

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

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

above, Cardwell          makes    it    clear      that    a    temporal      link    between

charges       does   not   make    joinder        appropriate        unless       “additional

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

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

the propriety of joinder.”).

       The     majority     brings      up   two    additional        considerations        in

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

charges are logically related to his conspiracy charges.                               First,

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

experienced two successful criminal transactions—the gun sales—

that     were      directly      attributable         to       the   same     confidential

informant’s introduction, the jury could reasonably infer that

McLaurin had a higher level of trust in the Undercover Officers

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

cannot       discern     how    this    potentiality           renders      the    felon-in-

possession and conspiracy counts logically related.                                  Although

                                             40
McLaurin’s    increased          trust      may       have    allowed    law   enforcement

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

invasion     scheme,       this        consideration            speaks     only       to    the

connection between the law enforcement investigations into the

felon-in-possession and conspiracy counts.                            Cardwell therefore

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

      Second, the majority points out that McLaurin told Special

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

invasion, presumably because he sold his only guns during the

controlled     buys       that      resulted           in     the     felon-in-possession

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

conspiracy and felon-in-possession counts less related because

the firearms sales prevented McLaurin from using those weapons

in furtherance of the home invasion.                          Because these additional

considerations       do    not     draw     a     logical      connection      between      the

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

district court should not have joined them.



                                                II.

      The    fact     that       the      district           court    erred    in     joining

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

end   the   inquiry.         Misjoinder           warrants       reversal      only    if    it

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

prejudice because it had substantial and injurious effect or

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

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

(internal       quotation    marks    omitted).          To     determine     whether

misjoinder resulted in actual prejudice, this Court considers

the following indicia of harmlessness:

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

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

government will prevail if it proves that each of these elements

weigh in favor of harmlessness.             Id. at 700.

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

entrapment      instruction    only    if    “there   is      sufficient     evidence

from which a reasonable jury could find entrapment.”                            United

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

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

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

of law that this case warranted an entrapment instruction, and

the government does not challenge that determination on appeal.

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

the conspiracy counts was not overwhelming.

      In addition to inquiring whether the evidence of guilt was

overwhelming, the first harmlessness factor also asks whether

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

contends      that     joinder      affected    the     verdict       because       the

government used the facts of the February 25 gun possession to

argue    against      entrapment.       Specifically,        during    its     closing

argument, the government made the following statement:

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

In    other   words,     the     government     drew    a     connection       between

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

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

attempt to argue that this portion of its closing argument had

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

greater detail below, the government contends that the evidence

underlying      the    felon-in-possession        charges      would     have       been

admissible      to    prove    McLaurin’s      predisposition         even     if    the

district court had declined to join the offenses.

      Turning    to    the    second   harmlessness     factor,       the     district

court attempted to mitigate the effects of joining McLaurin’s

felon-in-possession           and    conspiracy    counts       by     giving       the

following limiting instruction:

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

This   Court    presumes      that    juries       follow   courts’   instructions.

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

2012).    This indicator of harmlessness therefore weighs against

a finding of prejudice.

       The government’s argument that misjoinder did not prejudice

McLaurin relies heavily on the third harmlessness factor:                        the

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

charges would have been admissible at a separate trial on the

conspiracy charges.           According to the government, Federal Rule

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

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

predisposition to commit the stash house robbery.                     Specifically,

the government argues that the evidence “shows that McLaurin had

access   to    the    tools     required      to     complete   the   robbery”   and

therefore      serves      to    “rebut        his     entrapment     defense”    by

demonstrating his ability and intent to follow through with the

home invasion.

       When    a     defendant       raises    an     entrapment      defense,   the

government may demonstrate predisposition through evidence that


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

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

defendant]       demonstrated            his   predisposition           to    [distribute      a

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

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

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

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

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

prior acts once a defendant has raised a claim of entrapment

thereby    putting      into       issue       his    predisposition          to    commit    the

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

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

support an inference that his purpose included offenses of the

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

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

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

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

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

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

charged        crime      to        render           the      evidence        probative       of

predisposition.

       Both the majority and the government cite numerous cases

from     our     sister       circuits         that        illustrate        the    degree    of

similarity       required          to    render        past     conduct       indicative      of

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

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

the     Fifth     Circuit       concluded         that     the      defendant’s         prior

participation in an attempted home invasion was similar enough

to the charged conspiracy to commit an armed home invasion to

weigh    on   his     predisposition.         Other       courts        have   viewed     only

comparably similar prior acts as probative of the defendant’s

predisposition         in    entrapment      cases.           See   United        States    v.

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

defendant       had    engaged      in    sexual    acts      at    a    wildlife       refuge

sufficiently similar to charged offenses of indecent exposure

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

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

for receiving a stolen firearm and being a felon in possession

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

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

that the defendant possessed child pornography and child erotica

sufficiently similar to charged crimes related to sexual acts

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

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

sufficiently          similar      to    charged     possession          of    explosives);

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

1992)    (evidence          that    the    defendant          had       engaged    in    drug

transactions sufficiently similar to charged distribution of and

                                             46
possession       with    intent     to   distribute          controlled           substances).

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

Circuit      concluded,     without      explanation,          that         the   defendant’s

seemingly irrelevant prior drug dealing was “properly made known

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

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

of the defendant’s entrapment defense).

      The case that comes closest to allowing evidence of gun

possession       to    demonstrate       predisposition            to    commit      an    armed

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

which        concerned     counts        stemming           from        a     home-invasion

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

Lewis, the Seventh Circuit determined that the court below had

not     erred     in    admitting    evidence         of     the        defendant’s        prior

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

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

district court allowed the evidence because, together, the two

prior convictions showed “a pattern of behavior by someone who

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

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

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

Circuit’s opinion indicates that the court would have reached

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



                                           47
in-possession       conviction    without    also    admitting        the    theft

conviction.

       When I compare the instant case to Lewis and the other

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

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

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

indicative of predisposition to commit the latter crime.                      In a

typical case, the only similarity between conspiracy to commit

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

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

that the presence of weapons does not render two crimes similar

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

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

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

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

concluded    that    the    firearm   possession     was     “only    marginally

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

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

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

that   the   felon-in-possession       evidence     would     be     inadmissible

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

Id.

       I acknowledge that Hawkins did not involve an entrapment

defense.     However, this distinguishing factor does not alter my

                                      48
conclusion that, like the felon-in-possession evidence at issue

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

inadmissible       at    a    separate       trial    on    his    remaining          charges. *

There is a fine line between evidence showing predisposition

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

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

underlying     McLaurin’s            felon-in-possession           charges       undoubtedly

falls into the latter category.                      It requires quite a logical

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

a drug stash house simply because he possessed and sold two

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

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

attenuated connection between a prior bad act and the alleged

crime at issue.          A contrary finding would veer dangerously close

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

unlimited    power       to    use     evidence      of    prior     crimes         whenever    a


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



                                              49
defendant raises an entrapment defense.               See, e.g., Acosta, 67

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

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

possess firearms because “drug dealing is often associated with

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

character that Rule 404(b) aims to prevent.



                                    III.

      I    would   hold   that    district        court   erred   in   joining

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

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

McLaurin’s conviction on the conspiracy counts and remand for

retrial.




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