    Case: 19-30394   Document: 00515476398     Page: 1     Date Filed: 07/02/2020




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT
                                                              United States Court of Appeals
                                                                       Fifth Circuit

                                                                     FILED
                                No. 19-30394                      July 2, 2020
                                                                Lyle W. Cayce
                                                                     Clerk


UNITED STATES OF AMERICA,

                                         Plaintiff−Appellee,

versus

KADEEM BURDEN; TIMMY SCOTT, also known as Timothy Scott,

                                         Defendants−Appellants.




               Appeals from the United States District Court
                   for the Middle District of Louisiana




Before SMITH, HIGGINSON, and ENGELHARDT, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

     Kadeem Burden and Timmy Scott appeal their convictions and sentences
for unlawfully possessing firearms as felons. We affirm.

                                   I.
     Police officer Jesse Barcelona was driving his patrol car when he ap-
proached an intersection. Facing in the perpendicular direction were an SUV
and a Mercedes. As Barcelona passed through the intersection, two or three
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                                    No. 19-30394
black males in white t-shirts and blue jean shorts exited the SUV, approached
the Mercedes, and began repeatedly discharging firearms into it. When Barce-
lona turned his car around to return to the scene, the SUV sped away, leaving
the shooters running after it with Barcelona in pursuit (the occupants of the
Mercedes, providentially it would seem, were uninjured).

        The shooters turned to look at Barcelona’s approaching car. Barcelona
“could tell that one [of them] was still armed with what appeared to be an
AK-47 rifle.” Further, “they appeared to have something [black] covering their
face[s].” They then ran into the local residential block, around which Barcelona
(and other officers) secured a perimeter while awaiting the arrival of a canine
unit.

        Shortly thereafter, an officer at the perimeter spotted two black males,
“fully clothed,” “come out . . . from behind a residence and then run back in.”
“Under a minute” later, two black men “came back out . . , not clothed . . . [and
were] [s]weating pretty profusely.” With hands raised, the two men shouted
“[w]e just got robbed, we just got robbed.”         The officers “[took] them into
custody[ and] place[d] them in the back of” a police car, awaiting further
instruction.

        Inside the perimeter and assisted by a dog tracker, officers (including
Barcelona) recovered various items. By one side of a house they found “a black
plastic Halloween-style mask on the ground,” and underneath the other side
they found another such mask and two firearms. 1 Before completing their
search, the unit discovered two cellular phones on the ground and “a pair of
blue jean shorts and a pair of white Nike shoes” nearby.




        The firearms were later identified as a Smith & Wesson 9mm pistol and a Century
        1

Arms 7.62x39mm rifle pistol.
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                                  No. 19-30394
      Upon returning to the perimeter, Barcelona went to the police car, where
he “observed Mr. Kadeem Burden [ ] wearing only black or dark-colored under-
wear and some socks, and Mr. Scott was only wearing . . . [b]lue jean-style
shorts.”     Based on their general physical appearance, Barcelona “firmly
believe[d] that those were the two individuals [he] observed shooting the fire-
arms,” though he had not seen the shooters’ faces uncovered.

      DNA and forensic examination linked Burden to one of the weapons and
Scott to both phones and one of the masks. Further examination established
that the nineteen bullets came from one or both of the firearms discovered at
the scene.

                                        II.
      Burden and Scott were charged in an indictment alleging solely that
they, “having each individually been convicted of a crime punishable by impris-
onment for a term exceeding one year, a felony, knowingly did possess firearms
. . . [that] had previously been shipped and transported in interstate commerce”
in violation of 18 U.S.C. § 922(g)(1). The indictment did not allege that they
knew of their felon status at the time of their possession, though both stipu-
lated at trial that they were in fact felons at the time of their arrest.

      Days after his federal arrest, Burden admitted to the Louisiana Parole
Board that he had violated the conditions of his state parole by possessing a
firearm. That prompted Scott to file a severance motion, which the district
court denied. Notwithstanding that denial, the court instructed the jury that
it was not to consider Burden’s admission as evidence against Scott.

      At trial, evidence was presented establishing that the defendants, upon
surrendering to the officers, had claimed that they had just been robbed of their
clothing (presumably by the shooters). That jury failed to reach a verdict.

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                                  No. 19-30394
      Before the second trial, the district court ordered that the parties obtain
its prior approval before “mention[ing] or elicit[ing] any testimony” regarding
the supposed robbery. No party objected; neither did any party proceed to seek
such approval. The second jury thus heard nothing about the defendants’
robbery-related statements. After receiving the court’s instructions outlining
the elements of the crime—including that “[t]he government must prove that
the defendant knew that he possessed a firearm, but not that the defendant
knew that he was a qualifying felon”—the second jury found both men guilty.

      The final presentence reports (“PSRs”) recommended finding that the
defendants “used and possessed” the firearms “in connection with attempted
first degree murder.” Neither defendant objected to his PSR, whose findings
the district court therefore adopted.

                                        III.
      The appeal presents four broad issues: (1) the denial of Scott’s motion
for severance, (2) errors relating to the defendants’ knowledge (or lack thereof)
that they were felons at the time of the incident, (3) the district court’s limi-
tation on evidence or testimony regarding the defendants’ robbery claims, and
(4) the cross-reference to attempted first-degree murder at sentencing.

                                        A.
      A criminal defendant enjoys “the right . . . to be confronted with the wit-
nesses against him.” U.S. CONST. amend. VI. “Ordinarily, a witness whose
testimony is introduced at a joint trial is not considered to be a witness ‘against’
a defendant if the jury is instructed to consider that testimony only against a
codefendant.” Richardson v. Marsh, 481 U.S. 200, 206 (1987). There is, how-
ever, “a narrow exception to this principle: . . . [W]hen the facially incriminat-
ing confession of a nontestifying codefendant is introduced at [a] joint trial,” it

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is not enough for “the jury [to be] instructed to consider the confession only
against the codefendant.” Id. at 207. See also Bruton v. United States, 391 U.S.
123, 135–36 (1968).

      Otherwise, “even if prejudice is shown . . . [Rule 14] leaves the tailoring
of the relief to be granted, if any, to the district court’s sound discretion.” Zafiro
v. United States, 506 U.S. 534, 538–39 (1993). “[A] district court should grant
a severance under Rule 14 only if there is a serious risk that a joint trial would
compromise a specific trial right of one of the defendants, or prevent the jury
from making a reliable judgment about guilt or innocence.” Id. at 539. “When
the risk of prejudice is high, a district court is more likely to determine that
separate trials are necessary, but . . . less drastic measures, such as limiting
instructions, often will suffice to cure any risk of prejudice.” Id. And generally
speaking, “juries are presumed to follow [such] instructions.” Id. at 540.

      The district court denied severance. We review that denial for abuse of
discretion. See id. at 541. That review is “exceedingly deferential,” requiring
that “[t]he appellant [ ] show that (1) the joint trial prejudiced him to such an
extent that the district court could not provide adequate protection; and (2) the
prejudice outweighed the government’s interest in economy of judicial admin-
istration.” United States v. Xie, 942 F.3d 228, 240–41 (5th Cir. 2019) (quotation
marks omitted).

      Scott, for his part, recognizes the herculean nature of his task. He
“acknowledges the challenge he faces with the Supreme Court[’s] holding [in
Marsh, 481 U.S. at 211, that] ‘the Confrontation Clause is not violated by the
admission of a nontestifying codefendant’s confession with a proper limiting
instruction when . . . the confession is redacted to eliminate not only the defen-
dant’s name, but any reference to his or her existence.’” Such redaction did
occur, Scott concedes: “Burden’s statement did not mention Scott, and other

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                                       No. 19-30394
evidence was [indeed] needed to show the linkage to [Scott].”

       Scott would have us nevertheless hold that the district court abused its
discretion. Although Burden’s redacted statement made no mention of Scott,
“the effort needed to” link the statement to Scott “was slight, and the prejudice
was great, since the whole focus of the Government’s case was that only two
shooters were involved, and the only two shooters were the defendants on
trial.” And the jury instruction not to consider Burden’s statement as evidence
against Scott “was equivalent to asking the jurors not to look at the proverbial
pink elephant, inevitably the other defendant before them.” 2

       That contention is without merit. “The key analytic factor in [Marsh] is
that the statement did not clearly refer to the defendant and could only be
linked through additional evidentiary material.”                United States v. Powell,
732 F.3d 361, 376–77 (5th Cir. 2013). Scott claims that Burden’s statement
should be distinguished because other evidence too easily allowed him to be
linked to the statement, but “the source of the linking factors . . . [is not] sig-
nificant. Rather, [Marsh] focuses on whether the statement facially implicates
the defendant—or at least acknowledges the existence of another person.
Here, [Burden’s] statement[] do[es] not.” Id. at 377.

       Scott’s true qualm is not with Burden’s statement but with the mountain
of other evidence against him. As Scott himself notes, “eyewitness and scien-
tific evidence point[ed] to the two defendants on trial.” Specifically, Barcelona
testified to a belief that Scott and Burden were the shooters he witnessed; DNA
evidence linked Scott to one of the masks and Burden to one of the firearms;
and Scott and Burden were found together, first fully clothed, then partially


       2 By “not to look at the proverbial pink elephant,” we assume that Scott is referring to
a popular exercise in which one is challenged not to imagine a pink elephant, the point being
that an instruction not to think of something all but ensures that the person will think of it.
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                                      No. 19-30394
naked less than a minute later. Any potential ease in linking Burden’s state-
ment to Scott arose not from the mere fact that they were tried together but
because other evidence independently and overwhelmingly implicated Scott.
That kind of linkage is not unduly prejudicial. See United States v. Chapman,
851 F.3d 363, 379 (5th Cir. 2017).

       By stating that the limiting instruction was “equivalent to asking the
jurors not to look at the proverbial pink elephant,” Scott implicitly attacks the
very legitimacy of limiting instructions. It might be, as Scott suggests, that
instructing a jury not to consider certain testimony in fact highlights that tes-
timony and, perversely, increases the odds that the jury should consider it. But
we assume that juries can and do sort through complex issues. 3 In any case,
“juries are presumed to follow their instructions.” Zafiro, 506 U.S. at 540. 4
Scott has not overcome that presumption; the district court did not abuse its
discretion.

                                             B.
       After the convictions but before this appeal, the Supreme Court decided
Rehaif v. United States, 139 S. Ct. 2191 (2019). It “held that the mens rea
requirement in 18 U.S.C. § 924(a)(2)—‘knowingly’—applies to both the ‘con-
duct’ and ‘status’ elements in § 922(g).” United States v. Huntsberry, 956 F.3d
270, 281 (5th Cir. 2020). “That is, the Government ‘must show that the defen-
dant knew he possessed a firearm and also that he knew he had the relevant
status [here, being a felon] when he possessed it.’”                Id. (quoting Rehaif,



       3 See Marsh, 481 U.S. at 206 (“[It is an] almost invariable assumption of the law that
jurors follow their instructions, which we have applied in many varying contexts.”) (citation
omitted).
       4 See also Chapman, 851 F.3d at 379 (“The defendant must [ ] show that the district
court’s instructions to the jury did not adequately protect him from any prejudice resulting
from the joint trial.” (ellipsis omitted)).
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                                       No. 19-30394
139 S. Ct. at 2194).

       Both the government and the district court operated on the pre-Rehaif
assumption that a conviction for firearms possession under 18 U.S.C.
§ 922(g)(1) need not require proof that the defendants knew they were con-
victed felons. Hence, (1) the indictment did not allege that they possessed such
knowledge; (2) the government did not present any relevant evidence thereto;
and (3) the court explicitly instructed that “[t]he government . . . [need] not
[prove] that the defendant knew that he was a qualifying felon.”

       As it happens, the defendants also assumed that a conviction would not
require a showing that they knew they were convicted felons. They did not
object to the indictment’s failure to allege subjective knowledge of their felon
status; they did not suggest in their Rule 29 motion that the government’s case
should be dismissed for lack of proof suggesting subjective knowledge of the
felonies; and they did not object to the relevant portion of the instructions. The
defendants concede that their argument—at least regarding the indictment
and instructions—is unpreserved and that, accordingly, the proper standard of
review is plain error. 5

       It is unclear from their briefing whether the defendants’ plain-error
concession applies to their sufficiency-of-the-evidence claim. The government
appears to accept that de novo review applies, and indeed this court has
recently opined that “[w]e review the sufficiency of the evidence de novo . . . [if
the defendant] made general objections to the sufficiency of the evidence.”
United States v. Staggers, No. 18-31213, 2020 U.S. App. LEXIS 18085, at *14,


       5 Some circuits have held that Rehaif error is structural and therefore reversible even
absent prejudice. See, e.g., United States v. Gary, 954 F.3d 194, 203 (4th Cir. 2020). This
circuit, however, has “held the opposite—that defendants must show that any error under
Rehaif actually prejudiced the outcome.” United States v. Lavalais, 960 F.3d 180, 184 (5th
Cir. 2020).
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                                      No. 19-30394
961 F.3d 745, ___ (5th Cir. June 9, 2020). 6 Because our disposition of the claim
remains unaffected, we assume, arguendo only, that de novo review applies to
the insufficiency claim.

                                             1.
       “Plain error requires that there was (1) error, (2) that is plain, and
(3) that affects substantial rights.” United States v. Anderton, 901 F.3d 278,
282 (5th Cir. 2018) (quotation marks omitted). If those conditions are met, this
court “should exercise its discretion to correct the forfeited error if the error
seriously affects the fairness, integrity or public reputation of judicial proceed-
ings.” Rosales-Mireles v. United States, 138 S. Ct. 1897, 1905 (2018).

       The defendants have identified errors meeting the first two prongs. “The
district court’s failure to instruct the jury concerning [the defendants’] knowl-
edge of [their] felon status[es] was plainly erroneous,” Huntsberry, 956 F.3d
at 283, as was the government’s “failure to inform [them] of the knowledge
element as required in Rehaif,” Lavalais, 960 F.3d at 187. Our analysis thus
turns to the third prong—whether the identified errors affected the defendants’
substantial rights.

       Under that prong, the defendant 7 bears the burden to “demonstrate ‘a
reasonable probability that, but for [the error claimed], the result of the pro-
ceeding would have been different.’” Id. (quoting United States v. Dominguez
Benitez, 542 U.S. 74, 82 (2004)). “The probability of a different result must be



       6 But see Huntsberry, 956 F.3d at 282 (applying plain-error review because “the objec-
tion targeted a different element of the charged crime: whether [the defendant] knowingly
possessed the firearms, not whether he knew his felon status”).
       7 The shifted burden is “one important difference” between harmless-error review of
preserved errors and plain-error review of unpreserved errors: In the latter cases, such as
this one, “[i]t is the defendant rather than the Government who bears the burden of persua-
sion with respect to prejudice.” United States v. Olano, 507 U.S. 725, 734 (1993).
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                                        No. 19-30394
sufficient to undermine confidence in the outcome of the proceedings.” Hunts-
berry, 956 F.3d at 283. That standard, i.e., “[d]emonstrating prejudice under
Rehaif[,] will be difficult for most convicted felons for one simple reason: Con-
victed felons typically know they’re convicted felons[,] [a]nd they know the
Government would have little trouble proving that they knew.” Lavalais,
960 F.3d at 184.

       This case is a perfect illustration. Burden’s arrest for felony possession
“occurred only days [after he was] released on [his] first parole for simple rob-
bery,” and Scott had been paroled from a three-year suspended prison sentence
for simple burglary only a few months earlier. 8 Moreover, both defendants
stipulated at trial that they were felons. The notion that either was unaware,
as of October 2017, that he had been convicted of a felony, or that the govern-
ment would have been unable to prove it, is unrealistic. 9 Accordingly, the
defendants cannot meet their burden to show that Rehaif error affected their
substantial rights.

                                               2.
       In reviewing a sufficiency-of-the-evidence claim, we ask whether, based
on the evidence presented at trial, any “reasonable jury ‘could have found the
essential elements of the crime beyond a reasonable doubt.’” Staggers, 2020
U.S. App. LEXIS 18085, at *19, 961 F.3d at ___ (quoting Jackson v. Virginia,
443 U.S. 307, 319 (1979)). That “familiar standard gives full play to the


       8 “[O]n plain error review, it is appropriate for us to judicially notice the facts of [the
defendants’] prior felony conviction[s].” Huntsberry, 956 F.3d at 284. And even if we are
limited to the facts presented to the jury at the third prong of the plain-error analysis, there
is no doubt that, under the fourth prong, we can rely on the entire record before us. See
Staggers, 2020 U.S. App. LEXIS 18085, at *17, 961 F.3d at ___.
       9 See Huntsberry, 956 F.3d at 286 (“Taken together with his stipulation, these facts
lead us to conclude that [the defendant] could not have been ignorant of his status as a con-
victed felon at the time the firearms were found in his possession.”).
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                                   No. 19-30394
responsibility of the [jury] fairly to resolve conflicts in the testimony, to weigh
the evidence, and to draw reasonable inferences from basic facts to ultimate
facts.” Jackson, 443 U.S. at 319. In any case, the question is not “whether [we]
believe[] that the evidence at the trial established guilt beyond a reasonable
doubt . . . but whether, after viewing the evidence in the light most favorable
to the prosecution, any rational [jury] could have” found such guilt established.
Id.

        The only evidence relating to whether the defendants knew that they
were convicted felons at the time of their arrests was the stipulation at trial
that they were in fact convicted felons. Although that stipulation alone does
not necessarily place the question entirely beyond debate, “absent any evidence
suggesting ignorance, a jury applying the beyond-a-reasonable-doubt standard
could infer that [the] defendant[s] knew that [they were] convicted felon[s]
from the mere existence of [their] felony conviction[s].” Staggers, 2020 U.S.
App. LEXIS 18085, at *20, 961 F.3d at ___ (emphasis added). Therefore,
regardless of the standard of review, the evidence was sufficient to support the
conviction.

                                        C.
        When discovered by police, the defendants stated that they had just been
robbed of their clothing. For the second trial, the district court ordered the
attorneys to seek approval before mentioning or eliciting testimony concerning
those statements. That requirement, defendants contend, inhibited their abil-
ity to present a “plausible defense” and constitutes plain error.

        “[A] district judge has broad discretion in managing his docket, including
trial procedure and the conduct of trial.” United States v. Gray, 105 F.3d 956,
964 (5th Cir. 1997). “In reviewing a district judge’s trial procedure and conduct
of the trial, we ordinarily determine whether the cumulative effect of the
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                                  No. 19-30394
judge’s actions amount to an abuse of discretion.” Id. Even an abuse of discre-
tion, however, would not itself be enough to reverse or vacate the verdict in
this case: “[B]ecause appellants never objected to the court’s actions during
trial, our appellate review is confined to the plain error standard” described
above. Id.

      The defendants spill much ink explaining why, if they had attempted to
introduce evidence or elicit testimony relating to the supposed robbery, it
should have been properly admitted under an exception to hearsay. That line
of reasoning, as the government correctly notes, entirely misses the point: The
district court never prevented the defendants from presenting such evidence
but only instituted a procedure for such presentation. The proper analysis
therefore focuses not on whether the evidence was admissible but on whether
the procedure to determine its admissibility was an abuse of discretion (which,
in turn, constitutes plain error). See id.

      The defendants cannot begin to demonstrate such abuse. The relevant
order specified, solely, “that no party [should] mention or elicit any testimony
about defendants’ claims that they were the victims of an armed robbery on
the night of the alleged incident without prior approval of the [district] Court.”
The defendants never sought such approval, so we can only speculate as to how
the court might have ruled or to what further procedure, if any, would have
been required beyond making the request itself. The court’s “procedure[]”—
i.e., that a party submit a request for prior approval—was “adequate on [its]
face, and without trying [it], [the defendants] can hardly complain that [it
would] not [have] work[ed] in practice.” Dist. Attorney’s Office for Third Judi-
cial Dist. v. Osborne, 557 U.S. 52, 71 (2009).

      The defendants would have us nevertheless proceed as though the dis-
trict court’s procedural order were effectively a substantive ruling in their

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                                    No. 19-30394
disfavor. They write that, “at the unrecorded status conference . . . , the judge
was abundantly clear: he was not going to allow it. . . . We [therefore] deemed
it would have been futile to have attempted to raise the issue.” Whatever the
value of form, “the real world situation facing counsel,” they say, was that
“[t]he Court had ruled.”

      It is not, however, “elevating form over function” (defendants’ words) to
note the distinction between a court’s hypothetical, expected, or even likely
ruling and an actual one. It might be that counsel’s intuitions were correct and
the court would have withheld its approval inevitably. 10 But absent even a
cursory request, the defendants ask us to hold that the court abused its dis-
cretion by perhaps intimating that it would likely refuse counsel’s request. We
decline. The defendants (in their reply briefing) ultimately acknowledge the
futility of their position, writing that “[i]f the defendants must suffer the con-
sequences of counsel not preserving the ability to present such a defense by
requesting a [Federal Rule of Evidence] 104(a) preliminary determination of
admissibility during the trial, so be it.” The district court did not err, much
less plainly so.

                                          D.
      At sentencing, the district court adopted an uncontested PSR cross-
referencing of the firearms possession with attempted first-degree murder.
Defendants contend that the facts at trial do not establish that attempt, so the
court plainly erred.

      In finding that the defendants attempted first-degree murder, the dis-
trict court necessarily found, as relevant here, that their actions were “willful,



      10  Even then, it would have been wise to make the futile attempt and preserve the
objection.
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                                     No. 19-30394
deliberate, malicious, and premeditated.” 18 U.S.C. § 1111(a). “Although . . .
deliberation and premeditation . . . involve[s] a prior design to commit murder,
no particular period of time is necessary for such deliberation and premedita-
tion[,] . . . [just that] [t]here must be some appreciable time for reflection and
consideration before execution of the act . . . .” 11

      Ordinarily, a “factual finding[] [is] reviewed for clear error.” United
States v. Barfield, 941 F.3d 757, 761 (5th Cir. 2019). “A factual finding is not
clearly erroneous if it is plausible in light of the record as a whole.” Id. “Th[is]
Court will find clear error only if a review of all the evidence leaves [it] with
the definite and firm conviction that a mistake has been committed.” Id.
at 761–62 (quotation marks omitted).

      Because the defendants did not preserve the error, we would have the
discretion to grant relief only if the clear error should constitute plain error.
The Supreme Court has recently abrogated this circuit’s “outlier [former]
practice of refusing to review certain unpreserved factual arguments for plain
error.” Davis v. United States, 140 S. Ct. 1060, 1061 (2020) (abrogating United
States v. Lopez, 923 F.2d 47, 50 (5th Cir. 1991) (per curiam)). Thus, this court
is to consider the defendants’ unpreserved challenge as it would any other. See
id. at 1061–62.

      The defendants claim that “no evidence was presented at trial, either
direct or circumstantial, that could reasonably lead to a conclusion that the act
was premeditated.” They note that the evidence establishes merely that “[t]wo
men exited the[ir] SUV and opened fire on the occupants of the Mercedes” that
had stopped behind them while they themselves were at a stop sign. Because




      11 United States v. Shaw, 701 F.2d 367, 392–93 (5th Cir. 1983), abrogated on other
grounds as recognized in United States v. Gurrola, 898 F.3d 524, 537 n.31 (5th Cir. 2018).
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                                       No. 19-30394
“[b]oth the driver and the passenger of the Mercedes denied any knowledge of
who shot at them,” defendants suggest, the record shows that “the shooting
. . . was a spur of the moment crime of convenience, rather than any deliber-
ate, considered murder plot.” It would have been rather “convenient” indeed
that the shooters possessed not only two fully loaded, high-powered 12 firearms
but also two black plastic masks, 13 that they happened to be wearing when
they decided, apparently unprovoked and on the “spur of the moment,” to exit
their vehicle and fire nineteen rounds into the victims’ occupied Mercedes. 14

       Defendants have shown, at most, that the shooters might not have held
a “deliberate, considered, murder plot” specifically to kill the persons who were
occupying the Mercedes. In that sense, it might have been “convenient” that
the Mercedes and its occupants happened to stop behind the shooters’ vehicle.
It might be true that the shooters cared not for the identity of the Mercedes’s
occupants; perhaps they would have opened fire on anyone unlucky enough to
have found themselves behind the shooters’ SUV. And, had no such person
arrived, it is perfectly plausible that the shooters would not have attempted to
kill anyone at all.

       But all that is entirely irrelevant. “Perhaps the best that can be said of
deliberation is that it requires a ‘cool mind’ that is capable of reflection, and of
premeditation that it requires that the one with the ‘cool mind’ did, in fact,



        Barcelona testified that one of the shooters’ weapons was “a very high caliber rifle”
       12

that would penetrate even his armored police car, let alone an ordinary automobile.
        We note that the incident took place in October 2017, long before the current viral
       13

pandemic that might lend more plausibility to the notion that one in the shooters’ position
might have been wearing a mask coincidentally.
       14See Trottie v. Stephens, 720 F.3d 231, 246, 250 (5th Cir. 2013) (stating that, although
“Trottie argue[d] that . . . evidence [] would have undermined the jury’s conclusion that he
premeditated the murders,” “the state presented evidence that Trottie [] wore a ski mask,
which greatly undermines [that argument]”).
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                                          No. 19-30394
reflect, at least for a short period of time before his act of [attempted] killing.” 15
That “period of time ‘does not [necessarily] require the lapse of days or hours[,]
or even minutes.’” 16

       The record supports the finding that the shooters coolly reflected on their
actions before taking them. As the defendants themselves note, there is no
evidence that the shooters and the victims had ever previously interacted or
known of the other’s existence; in other words, nothing suggests the shooters
were in a state of provocation that might have denied them the ability to reflect
on their actions. Neither is there any evidence that the defendants are or were
fundamentally incapable of such reflection. Even if there were no grand plot
to murder specifically the persons occupying the Mercedes, there was ample
opportunity to appreciate the situation while readying and wielding the guns,
donning the masks, exiting the SUV, walking to the Mercedes, and opening
fire repeatedly. That time was enough, and, again, that they “wore . . . mask[s]
. . . greatly undermines” the notion that their actions were not premeditated.
Trottie, 720 F.3d at 250.

       The district court did not err. 17 The judgments of conviction and sen-
tence are AFFIRMED.




       15United States v. Shaw, 701 F.2d 367, 393 (5th Cir. 1983), abrogated on other grounds
as recognized in United States v. Gurrola, 898 F.3d 524, 537 n.31 (5th Cir. 2018) (citing
WAYNE R. LAFAVE & AUSTIN W. SCOTT, JR., CRIMINAL LAW 563 (1972)).
       16   Id. (quoting Bostic v. United States, 94 F.2d 636, 639 (D.C. Cir. 1937)).
       17   It follows that, absent error, there cannot be plain error.
                                                 16
