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          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT


                                    No. 13-20533                  United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
UNITED STATES OF AMERICA,                                          February 3, 2015
                                                                    Lyle W. Cayce
             Plaintiff - Appellee                                        Clerk

v.

CHARLES WRIGHT,

             Defendant – Appellant




                Appeal from the United States District Court
                     for the Southern District of Texas


Before STEWART, Chief Judge, and JONES and HIGGINSON, Circuit
Judges.
HIGGINSON, Circuit Judge:
      Defendant-Appellant Charles Wright was indicted, tried, and found
guilty of distributing child pornography, in violation of 18 U.S.C. §
2252A(a)(2)(B) and (b)(1), and possessing child pornography, in violation of 18
U.S.C. §§ 2252A(a)(5)(B) and (b)(2) and 2256(8)(A). He was subsequently
sentenced to 240 months imprisonment and a lifetime of supervised release.
He timely appealed both his conviction and sentence. For the reasons stated
below, we AFFIRM Wright’s conviction and sentence.
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                                 No. 13-20533
                                       I.
      On September 14, 2011, at around 7:00 a.m., state and federal law
enforcement officers executed a search warrant of Wright’s home. Officer John
Barnes of the Houston Police Department, who had been assigned to the
Houston Child Exploitation Task Force, obtained the search warrant after his
investigation revealed that an IP address registered to Wright appeared to be
sharing child pornography through a file sharing network. The officers who
executed the search warrant were all wearing bulletproof vests and/or raid
jackets and were all armed. Six officers were on the “entry team” and had their
guns drawn as they entered the residence, while six officers were on the
“perimeter team” and were tasked with ensuring that no one left the perimeter
without permission from law enforcement.           The officers knocked and
announced and then entered and cleared the house, which had seven occupants
in it. Some of the occupants, including Wright, were wearing nightgowns and
pajamas when they were forced to exit the residence.
      As the search of the residence was taking place, Officer Barnes
approached Wright and told him that he wanted to talk to him. Officer Barnes
escorted Wright to his bedroom so that he could change into more appropriate
clothing. Wright testified that Officer Barnes grabbed him by the back of his
arm to escort him, but Officer Barnes testified that he did not remember ever
touching Wright. There were three officers in Wright’s bedroom as he got
dressed.   After Wright got dressed, Officer Barnes escorted him to an
unmarked Ford Taurus—Officer Barnes’s patrol unit—which was parked next
to the parking lot of a neighboring church, about thirty feet from the house.
While walking to the car, Officer Barnes told Wright that he was not under
arrest and that he was free to leave at any time. Officer Barnes led Wright to
the front door of the car, and Wright sat in the front passenger seat and closed


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                                 No. 13-20533
the door. Agent Guerra sat in the back seat of the car, and Officer Barnes sat
in the driver’s seat. Officer Barnes put a recorder on and started the interview.
      The interview lasted one hour and two minutes. At the beginning of the
interview, Officer Barnes showed Wright a copy of the search warrant, which
Wright said that he could not see without his glasses. Office Barnes for a
second time told Wright that he was not under arrest and that he was free to
leave. Officer Barnes then read Wright his Miranda rights, explained to him
the nature of the investigation, and proceeded to ask him questions. Three
times during the course of the recorded interview, Wright mentioned the
possibility of talking to a lawyer. Each of the three references was made in
response to Officer Barnes’s questions regarding Wright’s use of ages as search
terms when searching for pornography. The first reference was made shortly
after the interview commenced when the following exchange took place:


            JB [Officer Barnes]: [] what about ages, you ever put
            in ages in search terms?

            CW [Wright]: Sometimes.

            JB:   What ages do you put in?

            CW: Front, well.

            JB:   Do you ever put in 12 year old [].

            CW: We’re, we’re getting into somethin’.

            JB:   Or 14 year old?

            CW: [unintelligible] I probably should talk to that
            lawyer first yea.

Office Barnes did not address Wright’s reference to a lawyer, but instead
responded by slightly changing the subject. Shortly after this first exchange,

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                                           No. 13-20533
Officer Barnes returned to the topic of ages, and the following exchange took
place:


                  JB:    What ages do you put in[]there?

                  CW: I, that’s what I say again, we’re getting into
                  [simultaneous conversation] where I should talk to a
                  lawyer.

                  JB: [] ok, we’ll, oh, oh, only uh, only talk to me about
                  stuff that you wanna talk about.

                  CW: Yea, that’s what I’m sayin’.

                  JB: Ok, so I, I don’t wanna, I don’t want you to tell
                  me anything you don’t want to, but I wanna help you
                  at the same time, being cooperative.

                  CW: I’ll be, but I don’t wanna say anything, again,
                  that’s gonna get me in trouble either.

Finally, on a third occasion when Officer Barnes returned to the subject of
search terms, Wright responded: “There again, we’re gettin’ towards the
lawyer.”
         During the course of the lengthy interview, Wright made numerous
incriminating statements. Wright told Officer Barnes about his use of the
program Frost Wire to download music, videos, and pictures. He stated that
he used Frost Wire to search for adult pornography, but he freely admitted to
using the search term “pedophilia” as well as “PTHC”—an acronym commonly
used to search for child pornography. 1 Wright admitted that when he used
those terms he would get 50% child pornography and 50% adult pornography
as a result, but he claimed that he would delete the child pornography as soon



         1   Officer Barnes testified at trial that “PTHC” stands for “preteen hardcore.”
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                                   No. 13-20533
as he got it. Wright told Officer Barnes about his use of an “internet washer”
that was supposed to do an “FBI wipe” of his computer to delete files that he
did not want.        He explained that he would delete files containing child
pornography because he knew they were illegal.              Wright discussed his
knowledge, or purported lack of knowledge, regarding the Frost Wire file-
sharing feature. He also stated “you see the kid stuff and, and you know, it’s,
it’s, like drugs.”
      The interview and, specifically, Wright’s references to a lawyer are the
subject of two of Wright’s three issues on appeal. First, Wright argues that the
district court erred when it denied his motion to suppress the statements that
he made to Officer Barnes during the interview. Second, Wright contends that
the government violated Doyle v. Ohio, 426 U.S. 610 (1976), when, during its
closing argument, the prosecutor commented on Wright’s reluctance to answer
certain questions during the interview. Third, Wright argues that at
sentencing the district court violated Federal Rule of Criminal Procedure 32
when it refused to allow defense counsel to respond after the government
attorney made her sentencing presentation. We will discuss each issue in turn.
                                        II.
      Before trial, Wright moved to suppress “any statements made to law
enforcement officers.” Wright argued that he properly, and unambiguously,
invoked his Fifth Amendment right to counsel and that Officer Barnes violated
that right when he continued to ask questions. The district court held a
suppression hearing during which it heard testimony from four witnesses—
Officer Barnes, two FBI Special Agents who participated in the search of
Wright’s house, and Wright. The district court denied Wright’s motion to
suppress. The district court concluded that Wright’s statements should not be
suppressed because Wright was not “under arrest at the time that he spoke


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                                     No. 13-20533
with the interrogating officer” 2 and because Wright “never requested the
presence of an attorney.” Order on Motion to Suppress at 3, United States v.
Wright, No. 12-91 (S.D. Tex. Jan. 28, 2013), ECF No. 61 (citation omitted)
(finding that Wright “was not in handcuffs and had the freedom to remove
himself from the vehicle where the questioning was ongoing” and that he “was
permitted to enter his home, even during the search, to obtain additional
clothing”).
                                           A.
       “When the district court denies a motion to suppress, we review factual
findings for clear error and conclusions of law de novo.” United States v.
Rodriguez, 702 F.3d 206, 208 (5th Cir. 2012) (citation and quotation marks
omitted); see also United States v. Harrell, 894 F.2d 120, 122-23 (5th Cir. 1990)
(“The question of whether Miranda’s guarantees have been impermissibly
denied to a criminal defendant, assuming the facts as established by the trial
court are not clearly erroneous, is a matter of constitutional law, meriting de
novo review.”). “A factual finding is not clearly erroneous as long as it is
plausible in light of the record as a whole.” United States v. Jacquinot, 258
F.3d 423, 427 (5th Cir. 2001). “Where a district court’s denial of a suppression
motion is based on live oral testimony, the clearly erroneous standard is
particularly strong because the judge had the opportunity to observe the
demeanor of the witnesses.” United States v. Montes, 602 F.3d 381, 384 (5th
Cir. 2010).    “We review the evidence in the light most favorable to the
prevailing party, which in this case is the government.” United States v.
Santiago, 410 F.3d 193, 197 (5th Cir. 2005).




      2  Both parties agree that the district court’s statement should be interpreted as a
finding that Mr. Wright was not “in custody” for Miranda purposes, rather than that he was
not “under arrest.”
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                                  No. 13-20533
                                       B.
      In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court
determined that “the Fifth and Fourteenth Amendments’ prohibition against
compelled self-incrimination required that custodial interrogation be preceded
by advice to the putative defendant that he has the right to remain silent and
also the right to the presence of an attorney.” Edwards v. Arizona, 451 U.S.
477, 481-82 (1981). “[I]f the accused indicates in any manner that he wishes
to remain silent or to consult an attorney, interrogation must cease, and any
statement obtained from him during interrogation thereafter may not be
admitted against him at his trial.” Fare v. Michael C., 442 U.S. 707, 709 (1979)
(citing Miranda, 384 U.S. 444-45). Not only must the current interrogation
cease, but as the Supreme Court established in Edwards v. Arizona, law
enforcement may not re-approach the suspect for further questioning until a
lawyer has been made available. See Edwards, 451 U.S. at 484 (“[A]n accused,
. . . having expressed his desire to deal with the police only through counsel, is
not subject to further interrogation by the authorities until counsel has been
made available to him, unless the accused himself initiates further
communication, exchanges, or conversations with the police.”); see also McNeil
v. Wisconsin, 501 U.S. 171, 176 (1991) (describing Edwards as having
“established a second layer of prophylaxis for the Miranda right to counsel”).
The rights established in Miranda, such as the right to counsel, “were not
themselves rights protected by the Constitution but were instead measures to
insure that the right against compulsory self-incrimination was protected.”
Davis v. United States, 512 U.S. 452, 457 (1994) (citation and quotation marks
omitted). Importantly, these rights, or measures, were “designed to counteract
the ‘inherently compelling pressures’ of custodial interrogation.” McNeil, 501
U.S. at 176; see also Missouri v. Seibert, 542 U.S. 600, 608 (2004) (“In Miranda,
we . . . recognized that ‘the coercion inherent in custodial interrogation blurs
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                                  No. 13-20533
the line between voluntary and involuntary statements, and thus heightens
the risk’ that the privilege against self-incrimination will not be observed.”).
      The Supreme Court has explained that the interest protected by “the
Miranda-Edwards guarantee . . . relates only to custodial interrogation.”
McNeil, 501 U.S. at 178. “Custodial interrogation is ‘questioning initiated by
law enforcement officers after a person has been taken into custody.’” United
States v. Salinas, 543 F. App’x 458, 462 (5th Cir. 2013) (quoting United States
v. Gonzales, 121 F.3d 928, 939 (5th Cir. 1997) (overruled on other grounds)).
“A suspect is . . . ‘in custody’ for Miranda purposes when placed under formal
arrest or when a reasonable person in the suspect’s position would have
understood the situation to constitute a restraint on freedom of movement of
the degree which the law associates with formal arrest.” United States v.
Bengivenga, 845 F.2d 593, 596 (5th Cir. 1988). “Two discrete inquiries are
essential to the determination: first, what were the circumstances surrounding
the interrogation; and second, given those circumstances, would a reasonable
person have felt he or she was at liberty to terminate the interrogation and
leave.” United States v. Cavazos, 668 F.3d 190, 193 (5th Cir. 2012) (quoting
J.D.B. v. North Carolina, 131 S. Ct. 2394, 2402 (2011)). The requisite restraint
on freedom is greater than that required in the Fourth Amendment seizure
context.   See Bengivenga, 845 F.2d at 598 (explaining that “a Fourth
Amendment seizure does not necessarily render a person in custody for
purposes of Miranda”). “The critical difference between the two concepts . . .
is that custody arises only if the restraint on freedom is a certain degree—the
degree associated with formal arrest.” Id.
      “[W]hether a suspect is ‘in custody’ is an objective inquiry,” J.D.B., 131
S. Ct. at 2402, that “depends on the ‘totality of circumstances,’” Cavazos, 668
F.3d at 193 (quoting California v. Beheler, 463 U.S. 1121, 1125 (1983)). “[T]he
‘subjective views harbored by either the interrogating officers or the person
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                                  No. 13-20533
being questioned’ are irrelevant.” J.D.B., 131 S. Ct. at 2402 (quoting Stansbury
v. California, 511 U.S. 318, 323 (1994)). “The reasonable person through whom
we view the situation must be neutral to the environment and to the purposes
of the investigation—that is, neither guilty of criminal conduct and thus overly
apprehensive nor insensitive to the seriousness of the circumstances.”
Bengivenga, 845 F.2d at 596.
      Recognizing that no one fact is determinative, this court has repeatedly
considered certain key details when analyzing whether an individual was or
was not in custody. Important factors include: (1) the length of the questioning,
see Harrell, 894 F.2d at 124 n.1 (5th Cir. 1990) (“[W]e reject the broad
proposition that a short delay constitutes per se a noncustodial interrogation
or that an hour-long delay constitutes a per se custodial interrogation. It is but
one, albeit important, factor to consider in applying our objective standard
outlined in Bengivenga.”); (2) the location of the questioning, see Bengivenga,
845 F.2d at 599 (emphasizing that the questioning took place “only a short
distance” from where the defendants had been, in a location that was not
isolated and subjected agents to “public scrutiny”); Harrell, 894 F.2d at 125
(holding defendant not in custody where the interrogation took place in “glass
conference area” that was “in close proximity to the immigration checkpoint”);
(3) the accusatory, or non-accusatory, nature of the questioning, see
Bengivenga, 845 F.2d at 597 n.16 (“The awareness of the person being
questioned by an officer that he has become the ‘focal point’ of the
investigation, or that the police already have ample cause to arrest him, may
well lead him to conclude, as a reasonable person, that he is not free to leave .
. . .” (citation omitted)); United States v. Chavira, 614 F.3d 127, 133-34 (5th
Cir. 2010) (emphasizing that the officers told the defendant that “they knew
she was not telling the truth”); (4) the amount of restraint on the individual’s
physical movement, see Cavazos, 668 F.3d at 194 (pointing out that defendant
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                                 No. 13-20533
was “followed and monitored” when he tried to go to the bathroom); Chavira,
614 F.3d at 134 (holding that defendant was in custody where her “freedom of
movement was severely restrained” by officers when they confiscated her birth
certificate and ID and handcuffed her to a chair); (5) statements made by
officers regarding the individual’s freedom to move or leave, see Cavazos, 668
F.3d at 195 (finding officers’ statements that interview was “non-custodial”
relevant but not determinative and explaining that such statements should be
“analyzed for their effect on a reasonable person’s perception, and weighed
against opposing facts”); United States v. McNair, 444 F. App’x 769, 770 (5th
Cir. 2011) (relying heavily on the fact that officers told the defendant that “he
was not under arrest” and was “free to leave” to support a finding that
interrogation was non-custodial).
      Wright relies heavily on this court’s decision in United States v. Cavazos,
affirming a district court’s order suppressing the defendant’s incriminating
statements under comparable factual circumstances. 668 F.3d at 195. In
Cavazos, officers executed a search warrant at the home of the defendant, who
was suspected of texting sexually explicit material to a minor female. Id. at
192. The court summarized the relevant circumstances as follows:
            . . . Just after 5:30 a.m., Cavazos was awakened from
            his bed, identified and handcuffed, while more than a
            dozen officers entered and searched his home; he was
            separated from his family and interrogated by two
            federal agents for at least an hour; he was informed he
            was free to use the bathroom or get a snack, but
            followed and monitored when he sought to do so; and
            he was allowed to make a phone call, but only when
            holding the phone so that the agents could overhear
            the conversation.

Id. at 194 (footnote omitted). The court also emphasized that at the start of
the search, the officers “immediately located and handcuffed” the defendant,

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                                       No. 13-20533
demonstrating that he was the focus of the search and that the officers “had
physical dominion over him.” Id. at 194-95. While the court acknowledged
that the officers told the defendant that the interview was “non-custodial,” it
explained why this fact was not determinative. Id. at 195. The court concluded
that the “totality of circumstances, drawn from the record as seen in the light
most favorable to [the defendant],” indicated that the defendant was in custody
during the questioning that took place in his home.                      Id. at 194 (“An
interrogation under such circumstances, and those others discussed above,
would lead a reasonable person to believe that he was not ‘at liberty to
terminate the interrogation and leave.’” (quoting J.D.B., 131 S. Ct. at 2402)).
       While Wright correctly identifies similarities between the present case
and Cavazos, there are significant differences that warrant an opposite holding
here. First, unlike in Cavazos, we are reviewing a district court’s denial of a
motion to suppress, which means that we must review the evidence in the light
most favorable to the government, rather than the defendant. See Santiago,
410 F.3d at 197; cf. Cavazos, 668 F.3d at 195 (evaluating the record in the light
most favorable to the defendant). Also crucial to our decision is the fact that,
according to Wright’s own testimony, he was told by Officer Barnes “[s]everal
times” that he was “free to leave” and that he “wasn’t under arrest.” Cf.
Cavazos, 668 F.3d at 195 (evaluating officers’ statements that the interview
was “non-custodial” and explaining that “to a reasonable lay person, the
statement that an interview is ‘non-custodial’ is not the equivalent of an
assurance that he could ‘terminate the interrogation and leave’”). Finally,
unlike the defendant in Cavazos, Wright was not singled out and handcuffed
when arresting officers entered his home. 3              Cf. Cavazos, 668 F.3d at 194


       3 The district court heard conflicting testimony at the suppression hearing regarding
whether Wright was handcuffed by the officers while they were executing the search warrant.
Officer Barnes testified that some of the occupants were briefly handcuffed for safety reasons.
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                                      No. 13-20533
(emphasizing that the defendant “was immediately located and handcuffed at
the start of the search, demonstrating that the agents sought out Cavazos and
had physical dominion over him”).
       There is no doubt that the presence of 17 to 19 law enforcement officers
in and around Wright’s home was startling and intimidating. Furthermore,
the length of the questioning weighs in favor of finding that it was custodial.
But see Harrell, 894 F.2d at 124 n.1 (warning against “[o]verreliance upon the
length” of the questioning, as it “injects a measure of hindsight into the
analysis which we wish to avoid” and rejecting the “broad proposition” that “an
hour-long delay constitutes a per se custodial interrogation”). On the other
hand, Officer Barnes repeatedly assured Wright that he was not under arrest
and that he was free to leave. Further, there is no evidence that Wright was
physically restrained during the interrogation, which took place close to the
home, in a car subject to public scrutiny.              Finally, the transcript of the
interview, and the cooperative tone throughout, highlights that the
conversation was as much an opportunity taken by Wright to tell his story to
the officers as it was an opportunity taken by the officers to get information
from Wright.
       Considering the totality of the circumstances surrounding Wright’s
interrogation, drawn from the record as seen in the light most favorable to the


Wright testified that he was handcuffed for about 10-15 minutes as he was escorted out of
the door and that he believed he was the only person who was handcuffed. However, FBI
Agent Ryan McKee, who participated in the search of Wright’s home, testified that while
sometimes the officers do handcuff certain residents for safety reasons, he did not believe
that any of the occupants were handcuffed in this case. The district court did not make an
explicit finding as to whether Wright had been handcuffed at any point during the execution
of the search warrant, but the court did state that “[t]he testimony shows that the defendant
was not in handcuffs [when he spoke to Officer Barnes] and had the freedom to remove
himself from the vehicle where the questioning was ongoing.” Viewing the record in the light
most favorable to the government, Wright was not handcuffed; at the very most, Wright was
handcuffed for 10-15 minutes along with other occupants of the home and was, thus, neither
singled out like the defendant in Cavazos, nor handcuffed during the interview in question.
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                                  No. 13-20533
government, we affirm the district court’s finding that Wright was not in
custody at the time he spoke with the interrogating officer. Because Wright
was not in custody for the purposes of Miranda, we find no error in the district
court’s denial of Wright’s motion to suppress. See Murray v. Earle, 405 F.3d
278, 286 (5th Cir. 2005) (explaining that an individual’s Fifth Amendment
right against self-incrimination, which Miranda aims to protect, “is implicated
only during a ‘custodial’ interrogation”). Therefore, we do not reach whether
Wright’s reference to a lawyer was “an unambiguous or unequivocal request
for counsel,” as required in this suppression context by Davis v. United States,
512 U.S. 452, 461-62 (1994). See generally Griffin v. Lynaugh, 823 F.2d 856,
863 (5th Cir. 1987) (“[W]hen an accused makes an unambiguous but limited
request for counsel, in the absence of police interference with the accused’s fifth
amendment guarantee to counsel, interrogation may proceed after satisfaction
of that request.”); United States v. Ivy, 929 F.2d 147, 153 (5th Cir. 1991)
(affirming district court’s denial of defendant’s motion to suppress where,
during the interrogation, the defendant “expressed his unwillingness to
answer questions about” a certain topic, and law enforcement “honored this
request by moving to a different subject”).
                                       III.
      We turn now to Wright’s contention that the government violated Doyle
v. Ohio, 426 U.S. 610 (1976), when, during closing argument, the prosecutor
commented on Wright’s refusal to answer certain questions during the
interrogation.
                                        A.
      The question of whether the government’s comment violated the Due
Process Clause, as proscribed by Doyle, is a constitutional question of law,
which this court reviews de novo. See United States v. Pando Franco, 503 F.3d
389, 393 (5th Cir. 2007); see also United States v. Perez-Macias, 335 F.3d 421,
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                                      No. 13-20533
425 (5th Cir. 2003) (“Constitutional questions are reviewed by this court de
novo.”). If a constitutional error occurred, we must determine whether the
error was harmless beyond a reasonable doubt. See United States v. Moreno,
185 F.3d 465, 472 (5th Cir. 1999); see also Brecht v. Abrahamson, 507 U.S. 619,
629 (1993) (explaining that “Doyle error fits squarely into the category of
constitutional violations which we have characterized as ‘trial error’” and are
thus “amenable to harmless-error analysis”).
       In Doyle, the Supreme Court held “that the use for impeachment
purposes of [a defendant’s] silence, at the time of arrest and after receiving
Miranda warnings, violated the Due Process Clause of the Fourteenth
Amendment.” 426 U.S. at 619. The Supreme Court explained that “while it is
true that the Miranda warnings contain no express assurance that silence will
carry no penalty, such assurance is implicit to any person who receives the
warnings.” Id. at 618. The Court concluded that because of this implicit
assurance, “it would be fundamentally unfair and a deprivation of due process
to allow the arrested person’s silence to be used to impeach an explanation
subsequently offered at trial.” Id.; see also Wainwright v. Greenfield, 474 U.S.
284, 290 (1986) (“The source of the unfairness was the implicit assurance
contained in the Miranda warnings ‘that silence will carry no penalty.’”). “The
Supreme Court has adopted a strict prohibition against the use of post-
Miranda silence at trial.” Pando Franco, 503 F.3d at 396; see also United
States v. Shaw, 701 F.2d 367, 382 (5th Cir. 1983) (“The standard is strict;
virtually any description of a defendant’s silence following arrest and a
Miranda warning will constitute a Doyle violation.”). 4



       4 “With respect to post-Miranda warnings ‘silence,’ we point out that silence does not
mean only muteness; it includes the statement of a desire to remain silent, as well as of a
desire to remain silent until an attorney has been consulted.” Wainwright, 474 U.S. at 295
n.13; see also United States v. Laury, 985 F.2d 1293, 1304 n.10 (5th Cir. 1993) (“We do not
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                                         No. 13-20533
       The Court’s holding in Doyle demonstrates that it is not the arrest and
custody that trigger Doyle protections, but rather the assurance of Miranda
warnings. “First the Court said that a defendant’s silence in response to
Miranda warnings is ‘insolubly ambiguous.’ Second, the Court held that by
giving Miranda warnings, the Government implicitly assures a defendant that
he will not be penalized for exercising those rights by remaining silent.” United
States v. Rodriguez, 260 F.3d 416, 420-21 (5th Cir. 2001) (citations omitted);
see also United States v. Carter, 953 F.2d 1449, 1464 (5th Cir. 1992)
(“Subsequent Supreme Court decisions have clarified that the Doyle protection
derives primarily from the implicit assurance of the Miranda warnings and
thus is strongest in the context of immediate post-Miranda-warning
interrogation.”); Kappos v. Hanks, 54 F.3d 365, 368-69 (7th Cir. 1995)
(explaining that “the promise contained in the statement of Miranda rights
precludes the prosecutor from commenting on the defendant’s silence” even if
that silence occurred “prior to his arrest”); United States v. Quinn, 359 F.3d
666, 677 (4th Cir. 2004) (“In evaluating Doyle-type claims, we focus on the
question whether the government made any assurances to the defendant,
either explicit or implicit, that his silence would not be used against him.”).
Consistent with this understanding of Doyle, the Supreme Court has
subsequently described it “as a case where the government had induced silence
by implicitly assuring the defendant that his silence would not be used against
him.” Fletcher v. Weir, 455 U.S. 603, 606 (1982) (holding that Doyle does not
prohibit the government from commenting on a defendant’s post-arrest, but
pre-Miranda warnings, silence).




believe, however, that the Supreme Court in Doyle intended that a defendant remain
completely silent following arrest in order to rely on the protection of the due process clause.”).
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                                  No. 13-20533
      “A prosecutor’s or witness’s remarks constitute comment on a
defendant’s silence if the manifest intent was to comment on the defendant’s
silence, or if the character of the remark was such that the jury would naturally
and necessarily so construe the remark.” United States v. Andaverde-Tinoco,
741 F.3d 509, 520 (5th Cir. 2013) (citation and quotation marks omitted); see
also Moreno, 185 F.3d at 473 (“Doyle governs where the comments are designed
to draw meaning from silence.” (citation and quotation marks omitted)). In
order to determine whether the prosecutor’s comments violated Doyle, those
comments must be evaluated in context. See Shaw, 701 F.2d at 381 (“Both the
intent of the prosecutor and the character of the remarks are determined by
reviewing the context in which they occur. . . .”).
                                        B.
      In the present case, the government had to prove, as an element of the
charges, that Wright acted knowingly—that Wright “knowingly distributed
materials containing child pornography” and that he “knowingly possessed
materials containing images of child pornography.” The government also had
to prove that Wright knew that the materials contained child pornography.
While Wright did not present any evidence of his own, he tried to raise a
reasonable doubt as to whether the government had established the element
of knowledge.
      The government, in its principal closing argument, warned the jury that
it “may hear argument that [Wright] didn’t intend to do it. He didn’t want to
do it.” The prosecutor stated:
                   But he knew that it was child pornography.
            How do we know he knew it was child pornography?
            It’s very interesting he says he uses the term “PTHC”
            because you get better stuff. And he’s referring to
            adult pornography, because he says that if you don’t
            put that in there, you’re going to get the old women.
            He wants the young stuff.
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                                  No. 13-20533


Then the prosecutor added: “It’s interesting though. He won’t tell Officer
Barnes what ages he searches for.” Wright’s lawyer objected to this reference
to Wright’s refusal and argued to the judge that it was “a comment on
[Wright’s] exercising his right to remain silent” and Wright’s “refusal to answer
questions after he was given Miranda and told he could remain silent.” The
district judge overruled the objection, and the government then elaborated:
                    In fact, he won’t tell Officer Barnes what ages he
             uses in search because, he says, ‘Because I don’t want
             to get in trouble.’ You saw the images. You saw that
             they are matched up with the ages in the title of the
             file. There’s no accident. There’s no mistake. This is
             exactly what he was looking for, and this is exactly
             what he got.

On appeal, Wright argues that the district court erred in overruling his
objection.
                                        C.
      Evaluated in narrow context, the prosecutor identified a piece of Wright’s
defense (lack of knowledge of children’s ages) and then sought to impeach that
defense by commenting on Wright’s purportedly inconsistent act of refusing to
answer certain questions about that topic. Drawing attention to Wright’s
avoidance of questions pertaining to his use of certain search terms could raise
the inference that Wright used impermissible search terms, and thus knew
that he was downloading child pornography. The prosecutor’s comments thus
drew meaning from Wright’s refusal to answer questions yet, Wright argues,
his refusal was invited by Officer Barnes through his recitation of Miranda
warnings and his reassurance that Wright should “only talk to [Officer Barnes]
about stuff that [he wanted to] talk about.”
      Preliminarily, we note that the prosecutor’s inference, elaborated after
sidebar contended that Wright “won’t tell Officer Barnes what ages he uses in
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                                  No. 13-20533
search because, he says, ‘Because I don’t want to get in trouble,’’’ drew a link
not to Wright’s silence nor to any invocation of counsel but instead to Wright’s
separate admission about wanting to avoid trouble, as well as to the photo
evidence itself: “You [the jury] saw the images. You saw that they are matched
up with the ages in title of the file. There’s no accident. There’s no mistake.
This is exactly what he was looking for, and this is exactly what he got.”
      With this context in mind, yet with the strictness of Doyle exactitude also
in mind, we choose to assume arguendo that the initial inculpatory inference
of reluctance to answer child age questions, without connection immediately
thereafter to Wright’s admitted concern about “trouble” and to the exhibit
evidence of the photos, would be improper, hence we proceed to assess whether
such error was harmless beyond a reasonable doubt. See Shaw, 701 F.2d at
382. This is not an easy task, as “[c]ircumstances that render Doyle error
harmless have defied formulaic precision for almost half a century.”
Andaverde-Tinoco, 741 F.3d at 522 n.2. “An error is harmless only if we can
determine beyond a reasonable doubt that the improper [comments] did not
contribute to the jury’s verdict.” Moreno, 185 F.3d at 475. Determining the
effect of the error “requires ‘an examination of the facts, the trial context of the
error, and the prejudice created thereby as juxtaposed against the strength of
the evidence of the defendant’s guilt.’” Shaw, 701 F.2d at 383. “[T]his Court’s
basic concern has been whether or not the improper comment was harmless
error because by its nature and under the circumstances it would have only an
insignificant impact on the jury.” Id.
      In Chapman v. United States, this court developed a framework for
analyzing the harmlessness of Doyle violations by categorizing our prior cases




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                                      No. 13-20533
into three groups. 5 See Carter, 953 F.2d at 1462. “Subsequent cases have
illustrated, however, that factual situations are not always amenable to
description within the rigid Chapman types,” therefore we have repeatedly
emphasized that we look to the Chapman framework for guidance in
performing a case-specific harmlessness analysis. 6 Shaw, 701 F.2d at 382-83;
see also United States v. Rodriguez, 43 F.3d 117, 121-22 (5th Cir. 1995) (“Many
cases cannot be resolved solely by reference to the Chapman categories; in such
instances, we apply a case-by-case approach using the Chapman categories as
guidelines for assessing the prejudice to the defendant in a particular context,
including the strength of the evidence.”). Again, this court has explained that


       5   In Chapman, the court grouped prosecutors’ impermissible comments into three
categories:
                  (1) When the prosecution uses defendant’s post-arrest
              silence to impeach an exculpatory story offered by defendant at
              trial and the prosecution directly links the implausibility of the
              exculpatory story to the defendant’s ostensibly inconsistent act
              of remaining silent, reversible error results even if the story is
              transparently frivolous.
                  (2) When the prosecutor does not directly tie the fact of
              defendant’s silence to his exculpatory story, i.e., when the
              prosecutor elicits that fact on direct examination and refrains
              from commenting on it or adverting to it again, and the jury is
              never told that such silence can be used for impeachment
              purposes, reversible error results if the exculpatory story is not
              totally implausible or the indicia of guilt not overwhelming.
                  (3) When there is but a single reference at trial to the fact of
              defendant’s silence the reference is neither repeated nor linked
              with defendant’s exculpatory story, and the exculpatory story is
              transparently frivolous and evidence of guilt is otherwise
              overwhelming, the reference to defendant’s silence constitutes
              harmless error.
Rodriguez, 260 F.3d at 422 (citing Chapman, 547 F.2d at 1249-50).
       6 “For analytical purposes, it is important to differentiate cases falling within

Chapman’s first category from cases in the other two categories. The second and third
categories articulated in Chapman are not to be used as rigid rules, but only as helpful
guides.” Rodriguez, 260 F.3d at 422 n.3 (citation and quotation marks omitted). The “first
category includes Doyle violations that explicitly or repeatedly link the silence to the
exculpatory story; these are harmful per se, affecting the fundamental fairness of the trial,
and require reversal.” Moreno, 185 F.3d at 475.
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                                 No. 13-20533
“Fifth Circuit cases subsequent to Chapman have substantially modified its
apparent rigidity, have recognized that many cases fall somewhat between its
categories, and have declined to reverse even where the exculpatory story is
not totally implausible but the evidence of guilt is substantial or
overwhelming.” United States v. Martinez-Larraga, 517 F.3d 258, 270 n.10
(5th Cir. 2008).    This is consistent with the Supreme Court’s general
clarification of Doyle errors as “trial error[s],” which the Court explained are
amenable to the Chapman v. California, 386 U.S. 18 (1967), harmless-beyond-
a-reasonable-doubt standard. See Brecht, 507 U.S. at 629-30. Similarly, other
circuits have declined to embrace a rigid, automatic-reversal standard. See,
e.g., Phelps v. Duckworth, 772 F.2d 1410, 1413 (7th Cir. 1985); Gov’t of Virgin
Islands v. Davis, 561 F.3d 159, 165 (3d Cir. 2009); United States v. Ramirez-
Estrada, 749 F.3d 1129, 1137 (9th Cir. 2014).
      Regardless of the helpfulness of the Chapman groupings to any given
case, the prosecutor’s comment in the present case does not fit squarely into or
out of Chapman’s first category. First, Wright’s refusal to answer certain
questions took place prior to his arrest, unlike the heartland of Chapman
category one.   See Chapman, 547 F.2d at 1249 (describing the reversible
category of Doyle errors as occurring when the “prosecution uses defendant’s
post-arrest silence to impeach an exculpatory story” (emphasis added)); cf.
Kappos, 54 F.3d at 368-69 (“But the fact that an arrest had not yet occurred
does not render Doyle inapplicable.”). Second, although the initial comment
and inference was made by the prosecutor, rather than elicited from a witness,
the prosecutor did not directly link silence with the implausibility of Wright’s
exculpatory story. Instead, the prosecutor elaborated: “He won’t tell Officer
Barnes what ages he uses in search because, he says ‘Because I don’t want to
get in trouble,’” linking Wright’s reluctance to answer certain questions with
an admission he did volunteer to Officer Barnes. See Wainwright v. Greenfield,
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                                  No. 13-20533
474 U.S. 284, 301 (1986) (Rehnquist, J., concurring) (finding Doyle error likely
harmless where it was based on testimony that was already heard by the jury
and “was there for the jury to consider on its own regardless of whether the
prosecutor ever mentioned it”); see also Anderson v. Charles, 447 U.S. 404, 409
(1980) (“Any ambiguity in the prosecutor’s initial questioning was quickly
resolved by explicit reference to Detective LeVanseler’s testimony, which the
jury had heard only a few hours before.”).
      Also important is the fact that the prosecutor’s isolated, original
comment did not “strike at the jugular” of Wright’s defense. Compare United
States v. Harp, 536 F.2d 601, 603 (5th Cir. 1976) (“Because the prosecutor’s
comments struck at the jugular of [the defendants’] story, those remarks
cannot be classified as harmless.”), and United States v. Johnson, 558 F.2d
1225, 1230 (5th Cir. 1977) (finding reversible Doyle error where the
impermissible testimony “went to the heart of the sole defense”); with Carter,
953 F.2d at 1465 (finding Doyle error harmless where “the story being
impeached [was] essentially peripheral to [the defendant’s] defense”), and
United States v. Davis, 546 F.2d 583, 595 (5th Cir. 1977) (emphasizing that
Doyle error did not “[strike] at the jugular” of the defendant’s story because the
defense being attacked was “paper-thin”). During opening argument, Wright’s
counsel characterized the case as being “about who did it. That’s it. This is
essentially a case about the keeper of the inn and all the people he allowed to
stay in the inn, all the occupants of that house.”          Consistent with this
statement, Wright’s primary defense throughout trial was that someone else
in the house could have been responsible. Then in closing argument, similarly,
Wright’s counsel emphasized to the jury: “And as I told you earlier, this case,
in opening statement [defense counsel] told you, it’s a who done it, who actually
put the child pornography on the hard drive.” The argument that Wright did
not know that the images he was downloading were child pornography was
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                                  No. 13-20533
arguably in tension with Wright’s primary defense, and was only alluded to by
defense counsel during the cross examination of Officer Barnes as well as
briefly during opening and closing arguments.
      The fact that the prosecutor’s initial, Doyle-implicating comment was
isolated, rather than repeated, further reduces the possibility of prejudice. See
Shaw, 701 F.2d at 383 (finding no reasonable possibility that “isolated and
unsolicited” reference to defendant’s silence contributed to his conviction).
Again, the jury had already listened to the 43-minute audio recording of the
interview and received the transcript, thus, it already knew what Wright said,
his admission about not wanting to get in trouble, and his accommodation with
Officer Barnes not to delve into the topic of children’s ages.
      Finally, the government presented strong evidence that Wright knew
that at least some of the images were child pornography.          The interview
transcript itself, as elaborated in this closing argument circumstance, provides
strong evidence of Wright’s knowledge. Wright admitted to Officer Barnes that
when he searched with the search term PTHC he got about 50% child
pornography, which he claimed that he would delete quickly because he knew
it was illegal. Wright also stated that “the kid stuff” is “like drugs.” Taken
together, the prosecutor’s terse comment then tied to Wright’s volunteered
admission and the photo evidence, along with Wright’s primary blame-shifting
defense and the strong evidence presented to the jury regarding his knowledge
that some of the downloaded images were child pornography, convince us that
the prosecutor’s comment was harmless.
                                       IV.
      Wright’s final issue on appeal pertains to the district court’s refusal to
allow Wright’s counsel to respond to the government’s sentencing presentation
at the sentencing hearing.     Wright argues that the district court violated


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                                 No. 13-20533
Federal Rule of Criminal Procedure 32 and denied his attorney a meaningful
opportunity to speak on his behalf.
                                       A.
      We review a district court’s compliance with Federal Rule of Criminal
Procedure 32 de novo. See United States v. Medina, 161 F.3d 867, 874 (5th Cir.
1998) (“We review the district judge’s implementation of Rule 32(c)(1) de
novo.”); see also United States v. Myers, 150 F.3d 459, 461 (5th Cir. 1998) (“We
review de novo whether a district court complied with a Federal Rule of
Criminal Procedure.”), abrogated on other grounds by United States v. Reyna,
358 F.3d 344 (5th Cir. 2004).
                                       B.
      Wright was sentenced on September 9, 2013. At the sentencing hearing,
after some preliminary matters, the court called upon Wright’s attorney to
allocute with respect to the sentence the court should impose. The court stated,
“[w]e’ll start with you, counsel, and then we’ll hear from [the prosecutor], and
then finally from your client.” Wright concedes that his lawyer, who spoke for
three minutes before voluntarily concluding her allocution, was allowed to
“make an initial presentation to the district court without interruption.”
During her allocution, defense counsel asked the court to grant Wright a
downward variance because, she argued, the sentencing guidelines are
outdated and “barbaric” and because Wright had overcome a difficult
upbringing. Defense counsel sought a 120-month sentence and argued that
“the nature of this offense and the facts which the Court heard and saw during
the trial” did not warrant a sentence close to the statutory maximum of 20
years, which is what the guidelines called for.
      The government provided a response that lasted slightly over four
minutes. The government argued that the guidelines were appropriate and
that Wright’s “situation and how he perpetrated this crime” placed him in the
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                                 No. 13-20533
“heartland” of the guidelines. The government claimed that Wright’s previous
hardships did not warrant leniency. The government also asserted that there
had been allegations of abuse against Wright in the past, although they were
not thoroughly investigated. The government spoke about the many victims of
Wright’s crime, the children who were abused in the images, and asked the
court for a sentence of 262 months imprisonment—“[a] sentence at the high
end of the guidelines.”
      After the government concluded, defense counsel asked if she could
“briefly respond.” The court responded: “I want your client to respond. These
are just arguments, counsel. You’ve made your statement, the government’s
made its statement. Mr. Wright, you may speak.” Defense counsel objected to
“not being allowed to allocute” and the court overruled the objection. Wright
stated, “I put myself to the mercy of the Court.”
      On appeal, Wright argues that the district court reversibly erred by
refusing to allow defense counsel to respond to the government at sentencing.
Wright contends that his right to allocute, as provided by Federal Rule of
Criminal Procedure 32, was violated because his defense counsel was “not
afforded a ‘meaningful’ opportunity to allocute” on his behalf. While Wright
states that “[t]his is not to say that, in every case, a response/rebuttal from
defense counsel will be necessary to comply with Rule 32(i)(4)(A)(i),” Wright
claims that here, where the government brought up new issues during its
allocution, defense counsel needed to be given an opportunity to address those
issues.
                                       C.
      Federal Rule of Criminal Procedure 32 provides that:
            Before imposing sentence, the court must:
            (i)   provide the defendant’s attorney an opportunity
            to speak on the defendant’s behalf;

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                                  No. 13-20533
            (ii) address the defendant personally in order to
            permit the defendant to speak or present any
            information to mitigate the sentence; and
            (iii) provide an attorney for the government an
            opportunity to speak equivalent to that of the
            defendant’s attorney.


Fed. R. Crim. P. 32(i)(4)(A). As Rule 32 makes clear, the sentencing court must
allow both defense counsel and the defendant himself, as well as the
government, an opportunity to speak before imposing a sentence. Id. In order
to satisfy Rule 32, the district court “must apply the rule ‘quite literally.’”
United States v. Magwood, 445 F.3d 826, 829 (5th Cir. 2006) (quoting United
States v. Dickson, 712 F.2d 952, 956 (5th Cir. 1983)). Rule 32 provides no
details about how much time each individual should be allowed to speak or
whether the district court can place limitations on the length or subject matter
of the allocutions. Other circuits have sensibly explained that the district court
is allowed to place some limits on the parties’ right to allocute. See United
State v. Li, 115 F.3d 125, 133 (2d Cir. 1997) (“[A] defendant’s right to allocution
is not unlimited in terms of either time or content.”); United States v.
Maldonado-Zamora, 325 F. App’x 655, 657 (10th Cir. 2009) (acknowledging
that a district court “has some discretion to place reasonable limits on what
may be addressed” during allocution). In an effort to create some limiting
principle, courts have consistently indicated that the opportunity to speak
must be “meaningful.” See United States v. Valtierra-Ortega, 402 F. App’x 34,
36 (5th Cir. 2010) (agreeing with government’s concession that defense counsel
was not given a “meaningful opportunity” to argue on defendant’s behalf where
district court refused to allow counsel to make “a general mitigation argument
or one for downward departure”); United States v. Gutierrez, 555 F.3d 105, 110
(2d Cir. 2009) (“We agree that a defense counsel’s opportunity to argue at a
sentencing hearing—like a defendant’s opportunity to address the sentencing
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                                 No. 13-20533
court—must be meaningful.”); Li, 115 F.3d at 134 (finding that district court
violated Rule 32 where defendant was not “able to speak meaningfully of the
factors that she legitimately thought relevant to the mitigation or her
sentence”).
      In the present case, we find that Wright’s attorney was given a
meaningful opportunity to speak on Wright’s behalf.          The district court
explicitly told the parties how the allocutions would proceed and then strictly
complied with the language of Rule 32, allowing all three individuals to speak.
Not only did the district court give Wright’s lawyer an opportunity to speak,
but it did so without placing any time or subject-matter limitations on that
opportunity. Wright’s lawyer voluntarily concluded her allocution after she
spoke, uninterrupted, for several minutes.      Furthermore, the prosecutor’s
statements to which “defense counsel felt the need to respond,” pertained to
information that was contained in the PSR. Thus, it was not new to either
party or the district court and defense counsel had a meaningful opportunity,
during her initial allocution, to discuss those topics if she wanted to. Because
Wright’s lawyer was given a meaningful opportunity to speak on Wright’s
behalf—for as long as she wanted and about any subject that she saw fit—we
find that the district court complied with Rule 32.
                                      V.
      For the foregoing reasons, we AFFIRM Wright’s conviction and sentence.




                                      26
