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.
2

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.
3

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 OrtizTrinidad 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 
4

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.
5

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.
6

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 
7

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
8

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 
9

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.
10

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 
11

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 
12

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: 
13

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.”
14

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 agreedupon 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 
15

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.
16

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.”).
17

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 
18

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 
19

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 
20

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 
21

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 
22

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 
23

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 crossexamination 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.
24

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 
25

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 
26

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 felonin-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 
27

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.
28

“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-inpossession 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.
29

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 
30

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 
31

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 shortbarreled 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-inpossession charges. McLaurin thus suffered no actual prejudice 

from the joinder of the counts, and any error in their joinder 
32

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 
33

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 
34

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). 
35

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 nonspeculative 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 
36

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
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 
38

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-inpossession 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-inpossession 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 
39

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-forhire-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.
40

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-inpossession and conspiracy counts logically related. Although 
41

McLaurin’s increased trust may have allowed law enforcement 

officials to succeed in getting him to participate in the homeinvasion 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 
42

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 
43

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:
44

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 
45

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 
46

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 
47

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-
48

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-inpossession 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 
49

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-ofdiscretion 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).
50

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-bycharacter 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.