United States v. McLaurin

• Decision Date: 22 August 2014
• Docket Number: Nos. 13–4138,13–4139.,s. 13–4138
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Deangelo McLAURIN, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Nicholas Lowery, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

764 F.3d 372

UNITED STATES of America, Plaintiff–Appellee,

v.Deangelo McLAURIN, Defendant–Appellant.

United States of America, Plaintiff–Appellee,

v.Nicholas Lowery, Defendant–Appellant.

Nos. 13–4138, 13–4139.

United States Court of Appeals, Fourth Circuit.

Argued: March 26, 2014.

Decided: Aug. 22, 2014.

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.

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.

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 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 meetingwas 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. 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.

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 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 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 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...