United States v. Christopher Waguespack

Case: 18-30813 Document: 00515077689 Page: 1 Date Filed: 08/15/2019

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

FILED

No. 18-30813 August 15, 2019

Lyle W. Cayce

UNITED STATES OF AMERICA, Clerk

Plaintiff - Appellee

v.

CHRISTOPHER G. WAGUESPACK,

Defendant - Appellant

Appeal from the United States District Court

for the Middle District of Louisiana

Before HAYNES, GRAVES, and DUNCAN, Circuit Judges.

JAMES E. GRAVES, Circuit Judge:

A jury convicted Christopher G. Waguespack of knowingly distributing

and possessing child pornography, in violation of 18 U.S.C. §§ 2252A(a)(2) and

2252A(a)(5)(B). The district court sentenced Waguespack to 180 months’

imprisonment on each count to run concurrently, followed by 10 years of

supervised release. He now challenges his conviction and sentence on six

grounds. We AFFIRM.

I. BACKGROUND

A. Investigation

In March 2015, Investigator Louis Ratcliff from the Louisiana Attorney

General’s Office conducted an undercover investigation of peer-to-peer

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networks 1 for child pornography. Ratcliff used Torrential Downpour 2 to

download over 400 images of child pornography from an IP Address in Baton

Rouge, Louisiana. On May 5, 2015, he opened a file on his March investigation

and authored a report on his investigation results. On June 13, 2015, Ratcliff

conducted another investigation and downloaded over 200 images of child

pornography from an IP Address in Baton Rouge, Louisiana. Ratcliff

subpoenaed Cox Communications to provide the IP Addresses for the

downloads that occurred on March 29–30, 2015, and June 13, 2015. Cox

Communications informed Ratcliff that the IP Addresses belonged to

Waguespack’s father, Larry Waguespack, with whom Waguespack lived.

On September 24, 2015, officers executed a search warrant at

Waguespack’s residence. The officers seized a computer from Waguespack’s

bedroom. The computer contained software actively searching for and

downloading files with file names indicative of child pornography. After a

forensic examination, the computer was found to have encrypted space and

1 Peer-to-peer file sharing is a means of Internet communication utilizing

software that lets users exchange digital files through a network of linked

computers. Users access peer-to-peer networks by downloading the peer-to-

peer software from the Internet; this software is used exclusively for sharing

digital files. Generally, after a user downloads or installs the software, either

the user selects a folder to store downloaded files or the installation program

designates the shared folder as the default folder into which files are

automatically downloaded. Files that are downloaded into the shared folder

(or downloaded into a separate folder but later placed into the shared folder)

are available to anyone on the peer-to-peer network for downloading. Someone

interested in sharing child pornography with other peer-to-peer network users

need only leave or place such files in his shared folder, which other users may

then access by searching for relevant terms and phrases.

United States v. Richardson, 713 F.3d 232, 233–34 (5th Cir. 2013).

2 At trial, Agent David Ferris testified that Torrential Downpour is a BitTorrent

program used by law enforcement to investigate peer-to-peer networks. It targets IP

addresses that have recently shared child pornography and creates an activity log of the files

involved.

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anti-forensic software, 3 CCleaner & Eraser, installed. There were file paths

with names indicative of child pornography that led to an “E-drive,” but

examiners were unable to locate an “E-drive” in the unencrypted space of the

computer. The examiners were also unable to find any user-accessible child

pornography on the computer. However, the examiners found over 2,800

images and four videos of child pornography in deleted thumbnail cache 4 in a

deleted zip file in an unallocated space of the computer. The file names in the

unallocated space were not indicative of child pornography.

B. Indictment & Superseding Indictment

Relevant here, the grand jury returned an indictment charging

Waguespack with knowingly distributing child pornography on May 5, 2015

and June 13, 2015, and knowingly possessing child pornography on September

24, 2015. In a probable cause affidavit to support the search warrant

application, Ratcliff stated that at least one child pornography offense

occurred on May 5, 2015. In fact, May 5, 2015, was the date that Ratcliff

authored his investigation report and not the date that any of the offenses

occurred.

Subsequently, the Government obtained a Superseding Indictment. The

Superseding Indictment mirrored the original indictment except the date of

the May 5, 2015 offense was changed to between March 29, 2015 and March

30, 2015. Waguespack pleaded not guilty to the counts in the Superseding

Indictment.

3 The Government’s expert testified that anti-forensic software is used to cover a

computer user’s tracks.

4 Cache files are files that a web browser automatically creates that may have been

seen on the internet that are stored in hidden or inaccessible space.

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C. Pre-Trial

Waguespack filed several pre-trial motions, including a motion for the

production of the transcripts of the grand jury proceedings and a motion to

suppress. The district court denied both motions.

In the motion for production, Waguespack argued that the date

discrepancy between March 29–30 and May 5 showed that Ratcliff possibly lied

to the Grand Jury. 5 He argued that the Government’s knowing use of false

testimony entitled him to the transcripts. The district court denied the motion

and found, inter alia, that Waguespack failed to show a particularized need for

the transcripts. The court found that Waguespack failed to present evidence

that Ratcliff was lying, and not simply making an error. The court further

found that even if Ratcliff lied, the Superseding Indictment with the correct

dates remedied any injustice.

In the motion to suppress, Waguespack argued that the evidence

obtained from the search should have been suppressed because the search

warrant application contained a material misstatement, violating Franks v.

Delaware, 438 U.S. 154 (1978), as May 5 was listed instead of March 29–30.

He argued that no judge would have found probable cause without the

misrepresented dates. After a hearing, the district court denied the motion

and found that Waguespack failed to prove that Ratcliff made the statements

“knowingly and intentionally, or with reckless disregard for the truth.” The

Court also found that even if Ratcliff knowingly lied about the dates and the

May 5, 2015 date was omitted, there was still sufficient information to support

probable cause.

5 March 29–30 is the date that Ratcliff provided to support the subpoena to Cox

Communications. May 5 is the date that Ratcliff used in his affidavit of probable cause to

support the search warrant and the date that was listed in the original indictment.

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D. Trial

On October 16, 2017, the jury trial began. Ratcliff was not a witness.

The Government introduced Ratcliff’s download logs through Agent David

Ferris, another investigator in the Louisiana Attorney General’s Office. Agent

Ferris was qualified as an expert in the field of online exploitation

investigations and peer-to-peer file sharing. Waguespack objected to the

introduction of the exhibits related to Ratcliff’s reports. He claimed lack of

foundation and inadmissible hearsay. The objections were overruled.

The Government also called Waguespack’s parents to testify.

Waguespack’s parents testified as to their knowledge of computers. His

mother testified that Waguespack’s father, Larry, “tinker[ed]” with computers,

but that Waguespack did not, and “[Waguespack] wasn’t really into fixing

other people’s computers or anything like that . . . .” She also testified that

Waguespack is “knowledgeable [about computers] . . . he knows how to use

them and he knows more than [she knows].”

Waguespack’s father, Larry, testified that Waguespack was the only

person that used the computer in Waguespack’s room. Larry also testified that

he was knowledgeable of CCleaner as software “to get rid of . . . history folders,

that kind of stuff and e-mail junk” and understood it as “something common .

. . to clean [the computer] to keep it from getting viruses and stuff.” He learned

about CCleaner from the internet and from Waguespack. He testified that he

and Waguespack discussed CCleaner years ago because Larry was getting

viruses on his computer. Larry also testified that he was knowledgeable

enough about computers that he could build one from scratch. He had not

heard of Eraser, had minimal knowledge of encryption, and had only heard of

BitTorrent from the investigation.

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After the Government rested, Waguespack moved for judgment of

acquittal under Federal Rule of Criminal Procedure 29. The motion was

denied.

The parties then presented their closing arguments. Waguespack’s

counsel stated the following in his closing:

Ladies and Gentlemen, where is Louis Ratcliff? You heard from

seven witnesses at this trial, and all but one testified about Louis

Ratcliff. And the guy that didn’t was the Cox Communications guy

. . . . Every single piece of evidence in this case, came from Louis

Ratcliff. The Government has the burden of proof in this case and

every case where they’re charging someone with a criminal offense,

and they have to prove their case beyond all reasonable doubt, and

yet the government did not call Louis Ratcliff as a witness.

***

This entire case, every single piece of evidence that you have to

rely on was touched by Louis Ratcliff. Every single thing the

government introduced to try to prove their case requires that you

trust Louis Ratcliff, not just trust him, ladies and gentlemen, you

have to trust him beyond a reasonable doubt because he’s the

source of the case, but the government didn’t trust him enough to

call him as a witness. They didn’t call Louis Ratcliff to tell us why

his images say March 29th and 30th, but every report says May

5th and his sworn affidavits say May 5th. They didn’t call Louis

Ratcliff to tell you that if he received those images in March, why

did he wait until May 13th to put them in the evidence locker?

***

Why [sic] are all of the videos and images that Mr. Ratcliff

supposedly downloaded, why are none of them on [Waguespack]’s

computer when they show up to do the search? Louis Ratcliff

didn’t come and answer any of those questions because there’s no

explanation. There is no answer for those questions.

The Government stated the following in its rebuttal:

The only person that brought up Mr. Ratcliff here today was

[Waguespack’s counsel]. What I would simply say to this point,

that if [Waguespack’s counsel] thought that Louis Ratcliff was

going to help his side of this case, he has the same subpoena power

as the United States government to demand that witnesses be

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here. And I’m sure if Mr. Ratcliff was going to be that helpful,

[Waguespack’s counsel] would have had him in this courtroom

talking to you, not just suggesting that it may have been

something helpful.

The jury found Waguespack guilty of knowingly distributing and

possessing child pornography, in violation of 18 U.S.C. §§ 2252A(a)(2) and

2252A(a)(5)(B). The jury, responding to a special verdict form, also found that

Waguespack possessed child pornography that involved prepubescent minors.

E. Sentencing

The Presentence Investigation Report (“PSR”) recommended, inter alia,

a two-level obstruction of justice enhancement under U.S.S.G. § 3C1.1 because

there was anti-forensic software installed on Waguespack’s computer.

Waguespack objected to the enhancement and argued that the enhancement

did not apply because he never took any action to delete or conceal evidence

after he learned of the investigation. The district court overruled the objection.

The PSR calculated Waguespack’s offense level as 39, inclusive of the

enhancement. Based on Waguespack’s offense level and criminal history

category of I, his Guidelines’ range was 262 to 327 months. The court granted

Waguespack a downward variance and sentenced him below the Guidelines to

180 months’ imprisonment on each count to run concurrently, followed by 10

years of supervised release.

Waguespack now timely appeals his conviction and sentence.

II. DISCUSSION

A. Waguespack’s Conviction Is Proper.

Waguespack appeals his conviction on four grounds. He argues that: (1)

the Government failed to prove beyond a reasonable doubt that Waguespack

“knowingly” distributed and possessed child pornography; (2) the Government

violated Waguespack’s Sixth Amendment Confrontation Clause right by

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failing to call Ratcliff as a witness; (3) the Government made improper

comments in its rebuttal; and (4) the Government committed a Brady violation

by failing to provide a copy of the grand jury transcripts to Waguespack. We

perceive no reversible error.

1. There was sufficient evidence to convict Waguespack

of knowingly distributing and possessing child

pornography.

We review Waguespack’s claim that there was insufficient evidence to

support the jury’s verdict de novo. United States v. Hoffman, 901 F.3d 523, 541

(5th Cir. 2018), as revised (Aug. 28, 2018), cert. denied, No. 18-1049, 2019 WL

536773 (U.S. May 20, 2019). “We weigh the evidence ‘in a light most

deferential’ to the jury verdict and give the party that convinced the jury the

benefit of all reasonable inferences.” Id. (quoting United States v. Lucio, 428

F.3d 519, 522 (5th Cir. 2005)).

“We must affirm the verdict unless no rational juror could have found

guilt beyond a reasonable doubt.” Hoffman, 901 F.3d at 541 (quotation

omitted). However, “a verdict may not rest on mere suspicion, speculation, or

conjecture, or on an overly attenuated piling of inference on inference.” United

States v. Moreland, 665 F.3d 137, 149 (5th Cir. 2011) (quotation omitted). And,

this court will not “credit inferences within the realm of possibility when those

inferences are unreasonable.” Id. (quotation omitted). Accordingly, we will

overturn a guilty verdict “where the government has done nothing more than

pile inference upon inference to prove guilt.” Id. (quotation omitted).

a. “Knowing” Distribution

Waguespack concedes that “[p]lacing content in a shared folder on a

peer-to-peer program amounts to distribution.” However, he argues that there

was insufficient evidence to prove that he had the requisite knowledge of the

distribution because, inter alia,: (1) there was no evidence that the default

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settings were modified to show he had knowledge of the automatic file-sharing

of the software; and (2) there was no evidence that he was on his computer or

at home on March 29–30 to show that he had knowledge that the files were

being transferred. He further argues that the Government even failed to

provide evidence that any distribution or file sharing occurred on the relevant

dates.

Under 18 U.S.C. § 2252A(a)(2), it is unlawful for a person to knowingly

distribute child pornography in or affecting interstate or foreign commerce by

any means. Downloading child pornography “from a peer-to-peer computer

network and storing [it] in a shared folder accessible to other users on the

network” is prohibited under the statute, but “the Government must prove

beyond a reasonable doubt that the defendant engaged in such distribution

‘knowingly.’” United States v. Romero-Medrano, 899 F.3d 356, 360 (5th Cir.

2018) (citing United States v. Richardson, 713 F.3d 232, 234, 236 (5th Cir.

2013)).

Weighing the evidence in the light most deferential to the jury verdict

and giving the Government the benefit of all reasonable inferences, there was

sufficient evidence for a rational jury to find Waguespack guilty beyond a

reasonable doubt of knowingly distributing child pornography. At trial, the

Government presented evidence that:

• A peer-to-peer file sharing software was installed on the computer

in Waguespack’s room.

• Waguespack was the sole user of the computer in his room.

• The peer-to-peer file sharing software notified users when files

were being uploaded or downloaded.

• The software’s default settings for the shared folder on the seized

computer were changed.

• Waguespack had advanced technological proficiency.

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• Agent Ratcliff downloaded child pornography using the peer-to-

peer file sharing software from an IP Address in Waguespack’s

home.

• A user on the computer previously searched for, viewed,

downloaded, and transferred child pornography using the file

sharing software, including transferring child pornography after

child pornography was distributed to Agent Ratcliff in March 2015.

• The computer seized from Waguespack’s room contained over 2800

images of child pornography.

Taken together, the evidence is probative of Waguespack’s knowledge

and is sufficient to demonstrate that Waguespack “knowingly” distributed

child pornography. The evidence was sufficient to support a jury finding of

guilt beyond a reasonable doubt.

Waguespack relies on extra-circuit precedent, United States v. Carroll,

886 F.3d 1347 (11th Cir. 2018) to support his insufficiency argument.

However, Carroll is distinguishable.

In Carroll, the Eleventh Circuit reversed a distribution conviction after

finding that the Government failed to prove that the defendant was aware that

the contents of his shared folder automatically distributed to the peer-to-peer

network. 886 F.3d at 1353–54. The defendant argued that the Government

“failed to present any evidence that he knew he was sharing child pornography

files when they were automatically placed in a shared folder, and that he [could

not] be held liable for knowing distribution without some showing that he

consciously allowed others to access those files.” Id. at 1353. The court agreed,

finding that there was nothing in the record to indicate that the defendant was

aware that the contents of his shared folder automatically distributed to the

peer-to-peer network. Id. According to the court, “the government failed to

put on any evidence that [the peer-to-peer network], by design, would have

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required [the defendant] to authorize file sharing or in any way recognize that

his downloaded files were being shared.” Id. at 1354. The court noted that the

design of each network may bear on the issue of knowledge in different ways.

Id.

Most detrimental to Waguespack’s argument that he lacked the requisite

knowledge is the evidence that, by design, the software notified the user that

files were being shared with others and that he altered the default settings of

the software. Both are indicia of knowledge. Waguespack fails to meet his

burden that “no rational juror could have found guilt beyond a reasonable

doubt.” Hoffman, 901 F.3d at 541 (quotation omitted).

b. “Knowing” Possession

Waguespack argues that the Government failed to prove beyond a

reasonable doubt that he “knowingly” possessed child pornography on

September 24, 2015, because the child pornography found on his computer was

either cached files or deleted cached files. In addition, the child pornography

files on his computer were located in an inaccessible portion of his hard drive.

Under 18 U.S.C. § 2252A(a)(5)(B), it is unlawful for a person to

knowingly possess child pornography in or affecting interstate or foreign

commerce by any means. To obtain a conviction under the statute, the

Government must prove, inter alia, that a defendant “knowingly” possessed

child pornography. United States v. Terrell, 700 F.3d 755, 764 (5th Cir. 2012)

(per curiam). The possession may be actual or constructive. United States v.

Smith, 739 F.3d 843, 846 (5th Cir. 2014).

“When illegal files are recovered from shared computers, courts permit

an inference of constructive possession where the files’ nature and location are

such that [the] computer’s owner must be aware of them.” United States v.

Smith, 739 F.3d 843, 847 (5th Cir. 2014). “Such an inference, however, must

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be supported by evidence that ‘the defendant had knowledge of and access to’

the files.” Id. (quoting Moreland, 665 F.3d at 150).

Weighing the evidence in the light most deferential to the jury verdict

and giving the Government the benefit of all reasonable inferences, there was

sufficient evidence for a rational jury to find beyond a reasonable doubt that

Waguespack knowingly possessed child pornography. The Government

presented evidence that there were over 2800 child pornography images on the

computer seized from Waguespack’s room, the person using the seized

computer was well-educated in computer usage, Waguespack was the sole user

of the computer, anti-forensic and encryption software were discovered on the

computer, child pornography was transferred to Agent Ratcliff from an IP

Address at Waguespack’s home, and path files with names indicative of child

pornography were stored on the computer. Together, this evidence is probative

of whether Waguespack had the requisite knowledge and ability to access the

files and exercise dominion or control over them. Cf. Moreland, 665 F.3d at

148. Accordingly, Waguespack fails to meet his burden that “no rational juror

could have found guilt beyond a reasonable doubt.” Hoffman, 901 F.3d at 541

(quotation omitted).

2. The district court did not clearly or obviously violate

Waguespack’s Confrontation Clause rights.

Waguespack argues that his rights under the Confrontation Clause were

violated when the district court admitted child pornography images

downloaded by Ratcliff and Ratcliff’s accompanying Torrential Downpour logs.

According to Waguespack, the Government’s failure to call Ratcliff in its case-

in-chief violated his right to confront the witness against him. The

Government argues that the images and logs are machine-generated and are

not statements of a person.

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The Confrontation Clause of the Sixth Amendment provides that “[i]n all

criminal prosecutions, the accused shall enjoy the right . . . to be confronted

with the witnesses against him.” U.S. Const. amend. VI. “The Confrontation

Clause bars the admission of ‘testimonial statements of a witness who did not

appear at trial unless he was unavailable to testify, and the defendant had [ ]

a prior opportunity for cross-examination.’” United States v. Kizzee, 877 F.3d

650, 656 (5th Cir. 2017) (quoting Crawford v. Washington, 541 U.S. 36, 53–54,

(2004)). “[A] statement is testimonial if its primary purpose . . . is to establish

or prove past events potentially relevant to later criminal prosecution.” Id.

(quotation omitted).

Generally, this court reviews alleged Confrontation Clause violations de

novo. United States v. Ayelotan, 917 F.3d 394, 400 (5th Cir. 2019), as revised

(Mar. 4, 2019). However, where, as here, the issue was not raised at trial, this

court reviews the issue for plain error. 6 United States v. Martinez-Rios, 595

F.3d 581, 584 (5th Cir. 2010). “To prevail, [Waguespack] must demonstrate

that[:] (1) the district court erred, (2) the error was plain, (3) the plain error

affected his substantial rights, and (4) allowing the plain error to stand would

‘seriously affect the fairness, integrity, or public reputation of judicial

proceedings.’” United States v. Bree, 927 F.3d 856, 859 (5th Cir. 2019) (quoting

Puckett v. United States, 556 U.S. 129, 135 (2009)).

Waguespack relies on Bullcoming v. New Mexico, 564 U.S. 647 (2011), to

support his argument that his rights were violated. In Bullcoming, the

6 Waguespack conceded in his reply brief that he failed to raise a Confrontation Clause

objection at trial. However, at oral argument, Waguespack’s counsel “walk[ed] back” the

concession and argued that the court should review the issue de novo because trial counsel

preserved the issue. Oral Argument at 1:20–2:20. Counsel’s citation to the record does not

support finding that trial counsel preserved the issue or that the “objection was specific

enough to allow the trial court to take testimony, receive argument, or otherwise explore the

issue raised.” United States v. Burton, 126 F.3d 666, 673 (5th Cir. 1997). Accordingly, we

exercise plain error review.

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“question presented [was] whether the Confrontation Clause permits the

prosecution to introduce a forensic laboratory report containing a testimonial

certification—made for the purpose of proving a particular fact—through the

in-court testimony of a scientist who did not sign the certification or perform

or observe the test reported in the certification.” Id. at 652. The district court

admitted a forensic report into evidence certifying a defendant’s blood alcohol

level where the defendant had been charged with driving under the influence.

The Government did not call the analyst who certified the report. Instead, the

Government called another analyst who was familiar with the laboratory’s

testing procedures. The Court held that “surrogate testimony of that order

does not meet the constitutional requirement. The accused’s right is to be

confronted with the analyst who made the certification, unless that analyst is

unavailable at trial, and the accused had an opportunity, pretrial, to cross-

examine that particular scientist.” Id. However, as Justice Sotomayor noted

in her concurrence:

[Bullcoming] is not a case in which the State introduced only

machine-generated results, such as a printout from a gas

chromatograph. The State [] introduced [the original analyst’s]

statements, which included his transcription of a blood alcohol

concentration, apparently copied from a gas chromatograph

printout, along with other statements about the procedures used

in handling the blood sample . . . Thus, [the Court did] not decide

whether . . . a State could introduce (assuming an adequate chain

of custody foundation) raw data generated by a machine in

conjunction with the testimony of an expert witness.

564 U.S. at 673–74 (Sotomayor, J., concurring).

In United States v. Ballesteros, this court rejected the defendant’s

argument that the district court clearly or obviously violated his right under

the Confrontation Clause by admitting into evidence a report detailing his

movements from GPS tracking. 751 F. App’x 579, 580 (5th Cir. 2019) (mem.),

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cert. denied, (U.S. Jun. 10, 2019) (No. 18-9205). We concluded that because the

defendant did not cite, and we had not found, “any decision by this court

holding that the output of a computer program, such as a GPS report, amounts

to a hearsay ‘statement’ under the Sixth Amendment,” the defendant failed to

meet his burden. Id.

Similarly, here, Waguespack fails to meet his burden of establishing that

the district court plainly erred in admitting the downloaded materials.

Waguespack has not cited, and we have not found any case to support

Waguespack’s position that the machine-generated materials are statements

of a witness or trigger the Confrontation Clause. Accordingly, Waguespack’s

argument fails.

3. The Government’s rebuttal remarks were not

improper.

Waguespack argues that the Government made improper comments

during its rebuttal by referencing Ratcliff’s absence. Because Waguespack

timely objected to this issue, we review for abuse of discretion. United States

v. Stephens, 571 F.3d 401, 407 (5th Cir. 2009).

“Improper prosecutorial comments constitute reversible error only

where the defendant’s right to a fair trial is substantially affected.” Id. at 407–

408 (quotation omitted). “This court applies a two-step inquiry in analyzing

claims of prosecutorial misconduct:” (1) whether the Government made

improper remarks; and (2) whether the improper remarks prejudiced the

defendant. Id. at 408.

“A prosecutor is prohibited from commenting directly or indirectly on a

defendant’s failure to testify or produce evidence.” Romero-Medrano, 899 F.3d

at 361 (quotation omitted). “A prosecutor’s . . . remarks constitute a comment

on a defendant’s silence in violation of the Fifth Amendment if the manifest

intent was to comment on a defendant’s silence, or if the character of the

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remark was such that the jury would naturally and necessarily construe the

remark to be a comment on a defendant’s silence.” Id. at 392 (quotation

omitted). “[T]he comments complained of must be viewed within the context

of the trial in which they are made.” Id. (quotation omitted).

In Stephens, we found that the Government’s comment that both sides

could have subpoenaed a witness was a response to the defendant’s closing

argument regarding a witness’s availability and was not an attempt to shift

the burden of proof. 7 571 F.3d at 408. We also found that even if the

Government’s comment was improper, it was not sufficiently prejudicial to

warrant reversal because the district court provided a curative instruction and

there was ample evidence at trial. Id.

Here, viewed in context, the Government’s remarks were not improper.

The jury would have understood the comments to be a response to the

defendant’s closing argument and not an attempt to shift the burden of proof.

And, even if the remarks were improper, the jury instructions relating to the

7 The exchange during the closing argument in Stephens’ trial was as follows:

Defense counsel: The guns. I suggested to you yesterday that they could have

been bought on-line. And who could they have been bought by? Daniel Lee

Garrett. We don’t know much about him. We know very little about him. The

Government could have brought him into court. The Government could have

subpoenaed him. They could have found him. They could have brought you

this missing witness. We know very little about him.

Government: I’m going to object, Your Honor.

The Court: What’s your objection?

Government: Both sides could have done that with subpoenas.

Defense counsel: Of course both sides could have done it. But the point is it’s

the Government’s burden to prove its case, and Mr. Costa knows that.

The Court: Okay. Go on. Continue.

Id. at 407 n.8.

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Government’s burden were curative. See Stephens, 571 F.3d at 408. Further,

Waguespack fails to demonstrate that the remarks were sufficiently

prejudicial to warrant reversal because there was ample evidence at trial to

support the jury’s verdict.

4. The Government did not violate Waguespack’s Brady

rights by not disclosing the grand jury transcripts.

Waguespack argues that the district court erred in denying his motion

to compel the production of the grand jury transcripts. Specifically,

Waguespack argues that the date change from the first indictment to the

superseding indictment triggered the Government’s Brady obligations, and he

was entitled to receive a copy of the transcripts. According to Waguespack,

“[the] witness statements used in obtaining an indictment for the wrong date

should have been available to [him] to determine what other defects may have

existed in the Government’s case.”

“To establish a Brady violation, a defendant must show: (1) the evidence

at issue was favorable to the accused, either because it was exculpatory or

impeaching; (2) the evidence was suppressed by the prosecution; and (3) the

evidence was material.” United States v. Cessa, 872 F.3d 267, 271 (5th Cir.

2017) (quotation omitted). “Evidence is material if there is a reasonable

probability that, had the evidence been disclosed to the defense, the result of

the proceeding would have been different.” Id. (quotation omitted). “A

reasonable probability of a different result is one in which the suppressed

evidence undermines confidence in the outcome of the trial.” Id. (quotation

omitted).

Waguespack has not shown that the grand jury transcripts were

material. He provides no support to demonstrate “a reasonable probability

that, had the [transcripts] been disclosed to the defense, the result of the

proceeding would have been different,” and that the nondisclosure of the grand

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jury transcripts undermined confidence in the outcome of the trial. Cessa, 872

F.3d at 271. He simply asks for them to determine “what other defects may

have existed in the Government’s case.” Accordingly, Waguespack’s challenge

as a Brady violation fails.

B. Waguespack’s Sentence Is Reasonable.

Waguespack appeals his sentence on two grounds. He argues that: (1)

the district court improperly applied the obstruction of justice sentencing

enhancement; and (2) his sentence is substantively unreasonable. We find no

reversible error.

1. Waguespack’s sentence is procedurally reasonable.

Waguespack argues that his sentence is procedurally unreasonable

because the district court erroneously applied an obstruction of justice

sentencing enhancement.

A district court may apply a two-level sentencing enhancement under

U.S.S.G. § 3C1.1 if:

(1) the defendant willfully obstructed or impeded, or attempted to

obstruct or impede, the administration of justice with respect to

the investigation, prosecution, or sentencing of the instant offense

of conviction, and (2) the obstructive conduct related to (A) the

defendant’s offense of conviction and any relevant conduct; or (B)

a closely related offense . . . .

U.S.S.G. § 3C1.1. “Obstructive conduct that occurred prior to the start of the

investigation of the instant offense of conviction may be covered by this

guideline if the conduct was purposefully calculated, and likely, to thwart the

investigation or prosecution of the offense of conviction.” Id. at Cmt. 1.

“A finding of obstruction of justice is a factual finding that is reviewed

for clear error.” United States v. Zamora-Salazar, 860 F.3d 826, 836 (5th Cir.),

cert. denied, 138 S. Ct. 413 (2017). “A factual finding is not clearly erroneous

if it is plausible in light of the record as a whole.” Id. (quotation omitted).

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The district court applied the obstruction of justice sentencing

enhancement after finding that Waguespack’s conduct was “purposefully

calculated and thwarted the investigation or prosecution of the offense of

conviction.” The court found that, inter alia, the seized computer was actively

searching for and downloading files with file names indicative of child

pornography when law enforcement executed the search warrant, the

computer’s deleted file space contained file paths and file names indicative of

child pornography, anti-forensic and encryption software were installed on the

computer, and the anti-forensic software had been programmed with a task

list of file paths with names indicative of child pornography.

Waguespack argues that the district court erred in applying the

enhancement because “there was no evidence that [he] engaged in any conduct

during the Government’s investigation of his activities or even that he was

aware that an investigation was about to commence.” However, based on the

plain language of the statutory commentary, the enhancement may be applied

for conduct that occurred prior to an investigation if the conduct was

“purposefully calculated, and likely, to thwart the investigation or prosecution

of the offense of conviction,” see § 3C1.1, Cmt. 1, which the district court

specifically found in Waguespack’s case.

In light of the record as a whole and the plain language of the statutory

commentary, Waguespack fails to demonstrate that the district court clearly

erred in applying the enhancement.

2. Waguespack’s sentence is substantively reasonable.

Waguespack argues that, despite his sentence falling below the

Guidelines, his sentence is substantively unreasonable because the district

court failed to account for 18 U.S.C. § 3553(a)(6)).

We review the substantive reasonableness of a sentence under an abuse-

of-discretion standard. United States v. Halverson, 897 F.3d 645, 651 (5th Cir.

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2018). However, “[a]ppellate review of the substantive reasonableness of a

sentence is ‘highly deferential,’” and a within-Guidelines sentence is entitled

to the presumption of reasonableness. Hoffman, 901 F.3d at 554–55. The

presumption is rebutted “only if the appellant demonstrates that the sentence

does not account for a [18 U.S.C. § 3553(a)] factor that should receive

significant weight, gives significant weight to an irrelevant or improper factor,

or represents a clear error of judgment in balancing the sentencing factors.”

United States v. Martinez, 921 F.3d 452, 483 (5th Cir. 2019) (quotation

omitted).

Section 3553(a)(6) requires courts to consider “the need to avoid

unwarranted sentence disparities among defendants with similar records who

have been found guilty of similar conduct.” “[W]here a sentence is within the

guidelines range, the unwarranted-disparity factor is not afforded significant

weight.” United States v. Martinez, 739 F. App’x 245, 247 (5th Cir. 2018)

(mem.) (citing United States v. Diaz, 637 F.3d 592, 604 (5th Cir. 2011)).

Because Waguespack’s sentence was below the Guidelines, his sentence

is entitled to the presumption of reasonableness. His attempt to rebut the

presumption by arguing that the district court failed to account for § 3553(a)(6)

is unavailing because the unwarranted-disparity factor is not afforded

significant weight in his case. Even if it was, he fails to offer evidence that his

sentence represents an unwarranted disparity with similarly situated

defendants. See Martinez, 739 F. App’x at 246–47. Waguespack includes

statistics of sentences for child pornography offenses, but “[n]ational averages

of sentences that provide no details underlying the sentences are unreliable to

determine unwarranted disparity because they do not reflect the

enhancements or adjustments for the aggravating or mitigating factors that

distinguish individual cases.” United States v. Willingham, 497 F.3d 541, 544

(5th Cir. 2007). The statistics that Waguespack provides “disregard individual

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circumstances and only reflect a broad grouping of sentences imposed on a

broad grouping of criminal defendants; consequently, they are basically

meaningless in considering whether a disparity with respect to a particular

defendant is warranted or unwarranted.” Id. at 544–45.

The district court stated that it considered all the factors in fashioning

Waguespack’s sentence. Of note, the district court seemed to give significant

weight to the victim impact statements and Waguespack’s offense being a

serious offense which affected many people.

The district court did not abuse its discretion in sentencing Waguespack.

III. CONCLUSION

For the foregoing reasons, the district court’s judgment is AFFIRMED.

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