     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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                                       No. 18-30813
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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                                 No. 18-30813
      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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                                  No. 18-30813
       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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                                  No. 18-30813
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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                                 No. 18-30813
         • 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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                                  No. 18-30813
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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                                 No. 18-30813
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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                                       No. 18-30813
       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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                                  No. 18-30813
“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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                                  No. 18-30813
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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                                       No. 18-30813
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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                                No. 18-30813
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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                                  No. 18-30813
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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                                  No. 18-30813
      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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                                  No. 18-30813
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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                                    No. 18-30813
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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