                                                          United States Court of Appeals
                                                                   Fifth Circuit
                                                                 F I L E D
                    UNITED STATES COURT OF APPEALS
                             FIFTH CIRCUIT                      November 21, 2006

                                                            Charles R. Fulbruge III
                                                                    Clerk
                               No. 05-60419


                       UNITED STATES OF AMERICA,

                                                    Plaintiff-Appellee,
                                                       Cross-Appellant,

                                  versus

                              MACEO SIMMONS,

                                                   Defendant-Appellant,
                                                        Cross-Appellee.



             Appeals from the United States District Court
                for the Southern District of Mississippi
                             (3:04-CR-132BN)


Before BARKSDALE, BENAVIDES and OWEN, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

        Convicted of sexual assault under color of law, involving

aggravated sexual abuse, in violation of 18 U.S.C. § 242, Maceo

Simmons contests primarily the admission both of Government expert-

witness testimony concerning sexual-assault victims and of Simmons’

prior state-trial testimony; and the sufficiency of the evidence

for his conviction.         The Government challenges:     the district

court’s refusal to impose a two-level enhancement under Guidelines

§ 2A3.1(b)(3)(A), applicable if the victim was “in the custody,

care,   or    supervisory    control   of   the   defendant”;    and    the

reasonableness of Simmons’ sentence, pursuant to United States v.
Booker,     543    U.S.   220     (2005)      (requiring,      inter      alia,

“reasonableness” review of post-Booker sentences to be guided by

the factors stated in 18 U.S.C. § 3553(a)).          CONVICTION AFFIRMED;

SENTENCE VACATED; REMANDED FOR RESENTENCING.

                                    I.

     In September 1999, Simmons and Thomas Catchings, both Jackson

Police Department (JPD) officers, assisted another officer during

the stop of an automobile containing 19-year-old passenger Syreeta

Robinson and her boyfriend, Towaski Bell.                 After discovering

marijuana    in   Robinson’s    possession,     Simmons     confiscated    it,

arrested and handcuffed her, and placed her in the back of his

police vehicle.     Bell, who was arrested for possessing marijuana

and making false statements to a police officer, was placed in the

back of Catchings’ police vehicle.            Before leaving the scene,

Simmons told Catchings that Robinson “wanted to have sex” with

Simmons.

     Simmons and Catchings proceeded in their police vehicles to

the police station, where Simmons waited in his vehicle with

Robinson while Catchings took Bell inside for booking.                 After

Catchings emerged from the police station, Simmons radioed him and

asked him to follow Simmons’ police vehicle.         After departing from

the police station, Simmons stopped his vehicle, removed Robinson’s

handcuffs, and moved her to the front seat of his police vehicle.




                                     2
       Next, he drove to an unlit, isolated area. Catchings followed

and, according to his testimony, parked his police vehicle in order

to act as a lookout while Simmons had sex with Robinson.               Simmons

forced Robinson to perform oral sex twice, and sexually assaulted

her vaginally and anally.         Robinson testified this activity was

against her will.

       Robinson, who was sobbing, was driven home by Catchings.                He

warned her not to tell anyone about the incident.              Nevertheless,

shortly after reaching home, Robinson told her boyfriend’s mother

and a friend about the night’s events.                 Several days later,

Robinson visited a rape-crisis center.            But, fearing possible

repercussions from the police, Robinson did not report the sexual

assault    until     October   2000,   approximately    a   year     after   the

incident.

       In November 2001, Simmons and Catchings were jointly tried in

Mississippi state court for sexual battery and conspiracy to commit

sexual    battery.      Simmons   testified,   denying      having    sex    with

Robinson. Although both men were acquitted, Simmons was terminated

by the JPD in 2002 because of the incident with Robinson.

       Simmons later became a police officer at Fort Hood, Texas.

Two of his fellow officers there testified Simmons told them he had

sex with a woman on, and in, his police vehicle while another

officer was present, which resulted in Simmons’ termination by the

JPD.



                                       3
       In September 2004, a federal grand jury indicted Simmons on

one count of sexual assault under color of law, in violation of 18

U.S.C. § 242, and one count of possession of a firearm while in

furtherance thereof, in violation of 18 U.S.C. § 924(c)(1)(A)(i).

In March 2005, Simmons was found guilty of the sexual-assault

charge, the jury finding the offense involved aggravated sexual

abuse resulting in bodily injury to the victim.               He was acquitted

on the firearm charge.

       Simmons was sentenced, inter alia, to 240 months in prison.

In    imposing   sentence,     the    district     court   sustained   Simmons’

objection to Guidelines § 2A3.1(b)(3)(A)’s two-level “custody”

enhancement and, because of Simmons’ age, imposed a sentence 84

months below     the   low   end     of    the   Guidelines   sentencing     range

calculated by the district court.

                                          II.

       Simmons’ claims fail.          The Government’s challenge to the

sentence succeeds for the denial of the “custody” enhancement.

Accordingly, because we remand for resentencing, we do not decide

the    Government’s    claim    that       the   imposed   sentence    was    not

reasonable.

                                          A.

       Simmons presents the following contentions: (1) the evidence

was insufficient for his conviction; (2) a Government expert

witness should not have been permitted to testify about rape-victim


                                           4
conduct;   (3)   admitting   excerpts      of   his   state-trial   testimony

violated Federal Rule of Evidence 404(b) (barring admission of

evidence of other crimes, wrongs, or acts to prove the character of

a person in order to show action in conformity therewith), as well

as the doctrine of collateral estoppel; (4) admitting evidence he

violated police procedures by failing to log seized marijuana also

violated Rule 404(b); (5) the Government’s use of the word “kidnap”

during closing argument denied him a fair trial; and (6) the court

erred by refusing to instruct the jury on Simmons’ state-court

acquittal.

                                     1.

     Simmons maintains the evidence was insufficient because the

Government produced no physical or medical evidence due to the

sexual assault’s not being reported for more than a year after the

incident; and Robinson’s testimonial inconsistencies undermined her

credibility. For these reasons, and because, according to Simmons,

no evidence showed he used force or Robinson experienced pain,

Simmons    claims   the   evidence   was   insufficient     to   support   his

aggravated-sexual-abuse conviction.             At the close of both the

Government’s case-in-chief and all the evidence, Simmons moved for

judgment of acquittal on these grounds, pursuant to Federal Rule of

Criminal Procedure 29(a).

     The denial of such a motion is reviewed de novo.                  United

States v. Meyers, 104 F.3d 76, 78 (5th Cir.), cert. denied, 520



                                      5
U.S. 1218 (1997).     Simmons’ having timely moved for such judgment,

the usual standard of review is employed:              the verdict will be

affirmed “if a reasonable trier of fact could conclude from the

evidence that the elements of the offense were established beyond

a reasonable doubt”.        United States v. Delgado, 256 F.3d 264, 273

(5th Cir. 2001).    As is more than well established for this review,

we evaluate neither the weight of the evidence nor the credibility

of the witnesses.     Id.    That is for the jury.     E.g., United States

v. Holmes, 406 F.3d 337, 351 (5th Cir.) (the jury “retains the sole

authority     to   weigh    conflicting     evidence    and   evaluate   the

credibility of witnesses”) (internal quotations omitted), cert.

denied, 126 S.Ct. 375 (2005).             All the evidence and reasonable

inferences are viewed in the light most favorable to the verdict.

E.g., United States v. Carillo-Morales, 27 F.3d 1054, 1064 (5th

Cir. 1994), cert. denied, 513 U.S. 1178 (1995); United States v.

Marshall, 762 F.2d 419, 423 (5th Cir. 1985) (in viewing all of the

evidence, we do not ask whether it was properly admitted).

                                     a.

     Simmons’ challenges to the lack of physical and medical

evidence of the sexual assault and to Robinson’s credibility are

unavailing.    Nothing in 18 U.S.C. § 242 or § 2241(a) requires such

evidence.     Conviction under § 242 is proper when, acting under

color of law, a person willfully deprives another of a federal

right. A § 242 offense involves “aggravated sexual abuse” when the


                                      6
offender “knowingly causes another person to engage in a sexual

act” either by (1) “using force against that other person”, or (2)

“threatening or placing that other person in fear that any person

will be subjected to death, serious bodily injury, or kidnapping”.

18   U.S.C.   §   2241(a).   The    evidence   showing   Simmons   deprived

Robinson of federal rights and caused her to engage in sexual acts

through force consisted not merely of Robinson’s testimony, but

included Simmons’ statements and the testimony of numerous other

witnesses, including Catchings.       Simmons’ challenges to Robinson’s

credibility, and to the sufficiency of the evidence in general,

overlook this abundant corroborating evidence.

      Catchings testified:         then a JPD officer, he acted as a

“lookout” while Simmons had sex with Robinson, and Simmons invited

him to have sex with her.           Robinson’s boyfriend’s mother and

Robinson’s friend testified Robinson telephoned them in the early

morning hours following the sexual assault, distraught over the

incident.     Two others confirmed Robinson visited a rape-crisis

center a few days later.     The center’s director testified Robinson

appeared “traumatized”. Although Simmons did not testify, excerpts

of his prior state-court trial testimony were admitted and shown to

be false by JPD records.     Finally, Simmons’ state-court testimony

denying having had sex with Robinson was contradicted by the two

Fort Hood Police Officers’ testimony that Simmons bragged about




                                      7
having had sex with a woman in, or on the back of, his police

vehicle, and about having been terminated by the JPD as a result.

     “[A] defendant’s exculpatory statements which are shown by

other evidence to be false may give rise to an inference of

consciousness of guilt”.    United States v. Villarreal, 324 F.3d

319, 325 (5th Cir. 2003).    Evidence of the falsity of Simmons’

prior statements, in conjunction with Robinson’s testimony and the

testimony of the Fort Hood Police Officers and other witnesses, was

sufficient for a reasonable jury to conclude Simmons sexually

assaulted Robinson.

                                b.

     The evidence was also sufficient to prove the assault involved

“aggravated sexual abuse”, in violation of 18 U.S.C. § 2241(a). As

discussed supra, such abuse is to “knowingly cause[] another person

to engage in a sexual act (1) by using force against that other

person[], or (2) by threatening or placing that other person in

fear that any person will be subjected to death, serious bodily

injury, or kidnapping” when the person is in custody.   Id.

     “A defendant uses force within the meaning of § 2241 when he

employs restraint sufficient to prevent the victim from escaping

the sexual conduct.”   United States v. Lucas, 157 F.3d 998, 1002

(5th Cir. 1998).   Such force can be “implied from a disparity in

size and coercive power between the defendant and his victim”.   Id.




                                 8
     Robinson testified: Simmons forced her to perform oral sex by

pulling her head; she was unable to avoid doing so because of “the

pressure he had on [her] neck”; and she was unable to escape

Simmons’ penetrating her anally and vaginally because he pinned her

between his body and his police vehicle.                     See Lucas, 157 F.3d at

1002 n.9 (defendant’s “pressing the victim against a table and

thereby blocking her means of egress suffices to constitute force

within the meaning of § 2241”).

     Added     to    the     corroborating         testimony         discussed     supra

(including Catching’s testimony he served as a “lookout”), this

evidence is sufficient for a reasonable jury to find beyond a

reasonable doubt that Simmons committed sexual assault involving

aggravated sexual abuse.           Accordingly, the evidence was sufficient

for conviction.

                                           2.

     Simmons     challenges        the   expert        testimony      of    Dr.   Louise

Fitzgerald    being    permitted.          Admission         of    such    testimony   is

reviewed     under    the    following         abuse    of    discretion      standard:

“District     courts       enjoy    wide        latitude      in     determining       the

admissibility of expert testimony, and the discretion of the trial

judge and his or her decision will not be disturbed on appeal

unless manifestly erroneous.” United States v. Tucker, 345 F.3d

320, 326 (5th Cir. 2003) (quoting Watkins v. Telsmith, Inc., 121

F.3d 984, 988 (5th Cir. 1997)) (emphasis added).


                                           9
     Of course, even if the court erred in allowing the testimony,

its ruling will not be disturbed unless the error was harmful,

affecting a substantial right of the complaining party.        E.g.,

Bocanegra v. Vicmar Servs., 320 F.3d 581, 584 (5th Cir.), cert.

denied, 540 U.S. 825 (2003).     See FED. R. EVID. 103(a) (“Error may

not be predicated upon a ruling which admits or excludes evidence

unless a substantial right of the party is affected ....”).      “In

the criminal context, in assessing whether an error affected a

‘substantial right’ of a defendant, the necessary inquiry is

‘whether the trier of fact would have found the defendant guilty

beyond a reasonable doubt with[out] the [challenged] evidence

....’”    Tucker, 345 F.3d at 326-27 (quoting United States v.

Roberts, 887 F.2d 534, 536 (5th Cir. 1989)).   Because the admission

of the expert testimony did not constitute manifest error, we do

not reach the harmless-error inquiry.

                                  a.

     Simmons contends Dr. Fitzgerald’s testimony failed to satisfy

the requirements of Daubert v. Dow Pharmaceuticals, 509 U.S. 579

(1993).   Daubert held:   when assessing the admissibility of expert

testimony, trial courts must determine “whether the expert is

proposing to testify to (1) scientific knowledge that (2) will

assist the trier of fact to understand or determine a fact in

issue”.   Id. at 592.   “[C]onfident that federal judges possess the

capacity to undertake this review”, Daubert nevertheless provided

                                  10
guiding factors it described as neither exhaustive nor definitive.

Id. at 593.      They include: (1) whether the theory or technique

underlying the expert’s testimony has been tested; (2) whether it

has been subjected to the rigors of peer review and publication;

(3) whether it has any known rate of error and standards for

controlling such error; and (4) whether the theory or technique has

attained “general acceptance” within the relevant expert community.

Id. at 593-94; see also FED. R. EVID. 702 (amended on 17 April 2000,

consistent with the Supreme Court’s decisions in Daubert and Kumho

Tire Co., 526 U.S. 137 (1999), to state district courts’ role in

assessing the reliability and helpfulness of expert testimony).

     Dr. Fitzgerald was awarded a Ph.D. in psychology in 1979.                At

the time of trial, she was a licensed psychologist and a university

professor of psychology, specializing in sexual violence and sexual

victimization.      Simmons    objected      to    Dr.    Fitzgerald’s    expert

qualification     and   testimony   because:        she    had   not   conducted

research on memory; her research was founded on unreliable data and

methodology; and her opinions went to the ultimate credibility of

Robinson, the victim.      The district court overruled the objection,

reasoning that the testimony would be sufficiently reliable and

helpful.   It instructed the jury it could credit or discredit

expert testimony as it could any other testimony.

     Simmons claims the testimony should not have been admitted

under   Daubert    because    it    relied    on    scientifically       suspect


                                      11
methodology.    Noting that Dr. Fitzgerald’s indicia of rape-victim

behavior (e.g., non-reporting to police and feelings of shame,

humiliation, and self-blame) were developed for therapeutic, rather

than forensic, purposes, Simmons contends the testimony fails to

satisfy the first and third Daubert factors: empirical validity and

ascertainability of error rate.               In other words, according to

Simmons, research       on   rape   necessarily        is    biased    in    favor   of

believing purported victims; to develop indicia of rape-victim

behavior, researchers must assume, as a starting premise, the

veracity of their subjects, even though there is no way to verify

the percentage of subjects actually raped.                    Therefore, Simmons

asserts: due to this inherent limitation, no empirically valid or

reliable forensic diagnostic techniques can be developed, only

therapeutic tools.

       Obviously, these are inherent limitations for such research.

Nevertheless,    expert      testimony     drawing      on   it   is   not    thereby

proscribed by Daubert.           See Jenson v. Eveleth Taconite Co., 130

F.3d    1287,    1297     (8th      Cir.      1997)     (recognizing         inherent

methodological     limitations        in      all     social-science        research,

particularly sexual-harassment research; nevertheless, holding such

expert testimony admissible), cert. denied, 524 U.S. 953 (1998).

First, as a general matter, “[t]o show that expert testimony is

reliable ... the government need not satisfy each Daubert factor”.

Hicks, 389 F.3d at 525 (5th Cir. 2004).                      Instead, as Daubert


                                         12
emphasized, the trial court’s “gatekeeping” function is “a flexible

one”. 509 U.S. at 594-95 (emphasis added).        In fact, our court has

held expert testimony admissible even though multiple Daubert

factors were not satisfied.      See, e.g., United States v. Norris,

217 F.3d 262, 269-71 (5th Cir. 2000) (testimony admissible under

Daubert even though “no error rate was known” and “no independent

validation” of the expert’s testing had occurred).

     Second, naturally occurring circumstances, such as the social

stigma attached to rape, may preclude ideal experimental conditions

and controls.      See, e.g., Jenson, 130 F.3d at 1297 (noting the

necessarily diminished methodological precision of “soft” social

sciences, particularly in areas involving sexual victimization).

In such instances, other indicia of reliability are considered

under   Daubert,    including   professional    experience,    education,

training, and observations.       See, e.g., Pipitone v. Biomatrix,

Inc., 288 F.3d 239, 247 (5th Cir. 2002) (finding expert’s testimony

reliable   under   Daubert   where    “based   mainly   on   his   personal

observations, professional experience, education and training”).

Because there are areas of expertise, such as the “social sciences

in which the research, theories and opinions cannot have the

exactness of hard science methodologies”, Jenson, 130 F.3d at 1297,

trial judges are given broad discretion to determine “whether

Daubert’s specific factors are, or are not, reasonable measures of



                                     13
reliability in a particular case”.           Kumho Tire Co., 526 U.S. at

153.

       Third, admission of Dr. Fitzgerald’s testimony is consistent

with the holdings of other circuits.             See e.g., Beauchamp v. City

of Noblesville, 320 F.3d 733, 745 (7th Cir. 2003) (expert’s citing

rape research to explain victim’s “failure to immediately notify

the police that she had been raped” and her “inability to recall

the details of the crime clearly” could “be consistent with that of

a person who was raped”); United States v. Smith, 1998 WL 136564,

at   *1-2   (6th    Cir.   19   March    1998)    (unpublished)   (admitting

psychologist’s testimony that “she was familiar with reactions of

women who have been victims of rape or sexual assault and that

women often do not report the incidents immediately” to rebut

defendant’s assertion that alleged victims “were unreliable because

they did not immediately report their rapes and assaults”); United

States v. Alzanki, 54 F.3d 994, 1006 (1st Cir. 1995) (upholding, as

reliable    under   Daubert,    testimony    based     on   expert’s   general

research and personal interaction with hundreds of abuse victims

that alleged victim’s “behavioral response to the non-sexual abuse

administered by the [defendants] was consistent with the behavior

of abuse victims generally”) (emphasis in original), cert. denied,

516 U.S. 1111 (1996).




                                        14
                                         b.

      Simmons also contends Dr. Fitzgerald usurped the jury’s role

by testifying to the ultimate issue: whether Robinson was sexually

assaulted.       In    this    regard,       Dr.    Fitzgerald       testified      that

Robinson’s behavior following the incident, as well as her in-court

testimony, were “quite consistent with that ... of rape victims”.

According to Simmons, this constitutes an expropriation of the

jury’s fact-finding function to determine the veracity of the

accuser. As noted, the district court overruled Simmons’ objection

on this point, reasoning, inter alia, that the jury could believe

or   disregard   Dr.    Fitzgerald’s         testimony     as   it   could    for    any

witness.

      Simmons’ jury-usurpation contention overlooks Dr. Fitzgerald’s

related testimony:      “I never give testimony as to whether or not a

rape did or did not occur”.             Simmons also does not mention the

district court’s instructing the jury it could discredit any

witness’   testimony.         Even    viewed       in   isolation,     however,     Dr.

Fitzgerald’s testimony did not impermissibly intrude upon the

jury’s determination of Robinson’s credibility.                        Mental-health

experts are permitted to testify that “symptoms and recollections

appear[] genuine and that [the expert believes she or] he ha[s] not

been ‘duped’” by a fabricated account.                     Skidmore v. Precision

Printing & Pkg., Inc., 188 F.3d 606, 618 (5th Cir. 1999) (holding

district     court    did     not    abuse    its       discretion    by     admitting


                                         15
psychiatrist’s testimony that plaintiff suffered post-traumatic

stress disorder and that “he did not think [the plaintiff] had lied

to him or fabricated her psychiatric symptoms”).

      As in Skidmore, Dr. Fitzgerald stated Robinson’s behavior and

testimony were “quite consistent” with that of sexual-assault

victims.   She did not even go as far as the expert in Skidmore who,

in   addition   to   opining   on   the    typicality   of   the   plaintiff’s

behavior, also concluded the plaintiff had undergone a traumatic

event and suffered its aftermath in the form of post-traumatic

stress disorder.      Id.   Dr. Fitzgerald’s testimony did not intrude

on the jury’s fact-finding function.

                                      3.

      When a party timely objects, rulings on evidentiary issues are

reviewed for abuse of discretion.           United States v. Polasek, 162

F.3d 878, 883 (5th Cir. 1998).        See FED. R. EVID. 103(a).       Simmons

challenges part of his state-trial testimony being admitted in

evidence during the Government’s case-in-chief.               The challenged

portion concerned Simmons’ denials of assaulting Robinson and his

account of the night’s events.

      At both a pre-trial hearing and the start of trial, Simmons

objected to such evidence, claiming:          his prior testimony did not

qualify as an admission of a party-opponent under Federal Rule of

Evidence 801(d)(2)(A) (and, therefore, was not an exception to the

hearsay rule) because it was not incriminating; it was inadmissible


                                      16
under Rule 404(b) because, if he was lying, such perjury would

constitute a separate extrinsic bad act; and, the Government was

collaterally estopped from introducing the prior testimony because

Simmons had been acquitted in state court.            The district court

overruled   Simmons’   objection,        reasoning   his   testimony   was

admissible under Rule 801(d)(2) and was not excludable under Rule

404(b).

                                a.

     Because the testimony at issue was not hearsay under Rule

801(c), we need not consider whether it qualified as a Rule

801(d)(2)(A) exception to the hearsay rule.

     Simmons’ prior testimony was not introduced for the truth of

what Simmons asserted.     FED. R. EVID. 801(c) (“‘Hearsay’ is a

statement ... offered in evidence to prove the truth of the matter

asserted.”).   Out-of-court statements are not hearsay when “the

point of the prosecutor’s introducing those statements was simply

to prove that the statements were made so as to establish a

foundation for later showing, through other admissible evidence,

that they were false”.   Anderson v. United States, 417 U.S. 211,

219-20 (1974) (footnote omitted); see also United States v. Meyer,

733 F.2d 362, 363 (5th Cir. 1984) (holding defendant’s false

exculpatory statements admissible to show consciousness of guilt).

The Government proffered Simmons’ prior testimony not for its

veracity, but for use in demonstrating its falsity through other


                                    17
evidence, thereby suggesting he fabricated an alibi.                  It was not

hearsay.

                                          b.

      Similarly, Simmons’ state-court testimony was not inadmissible

under   Rule   404(b)    because     it    did    not   constitute    a    separate

extrinsic bad act.           The prior testimony was relevant to issues

other than Simmons’ bad character.               It was introduced not to show

Simmons lied in the past, was a bad person, and, therefore, must

have sexually assaulted Robinson; rather, it was introduced to show

his consciousness of guilt and that he had lied in order to

fabricate an alibi. Villarreal, 324 F.3d at 325 (defendant’s false

statements “may give rise to an inference of consciousness of

guilt”).

                                          c.

      Finally, the Government was not collaterally estopped from

introducing the state-court testimony. Collateral estoppel applies

“when an issue of ultimate fact has once been determined by a valid

and final judgment[;] that issue cannot again be litigated between

the   same   parties    in    any   future     lawsuit”.     United       States   v.

Angleton, 314 F.3d 767, 776 (5th Cir. 2002) (emphasis in original)

(quoting Ashe v. Swenson, 397 U.S. 436, 443 (1970)), cert. denied,

538 U.S. 946 (2003).          Because the United States and the State of

Mississippi “as separate sovereigns, are not the same party”, the

collateral-estoppel doctrine is inapposite.                Id.


                                          18
                                  4.

     Simmons next claims the district court abused its discretion

by admitting evidence Simmons failed to log the marijuana seized

during the traffic stop.    Prior to, and during, trial, Simmons

moved to exclude evidence of his not doing so on the grounds it

constituted Rule 404(b) character evidence of other crimes.       In

each instance, the court ruled against Simmons on the basis that

the evidence was intrinsically relevant to what happened the night

of the sexual assault and was not excluded by Rule 404(b).

     Assuming arguendo the evidence was extrinsic, not intrinsic to

the charged offense, there was no error. “For admission under Rule

404(b), extrinsic evidence must satisfy two criteria: ‘(1) it must

be relevant under Federal Rule of Evidence 401 to an issue other

than the defendant’s character; and (2) it must have probative

value that substantially outweighs its prejudicial impact under

Federal Rule of Evidence 403.’” United States v. Infante, 404 F.3d

376, 388 (5th Cir. 2005) (quoting United States v. Walters, 351

F.3d 159, 165 (5th Cir. 2003)).

     Simmons’ failure to log the marijuana was both relevant to

issues other than his character and probative on these issues

substantially beyond its prejudicial impact. The marijuana seizure

is integral to the events leading to Robinson’s sexual assault.   It

also corroborates Robinson’s testimony that Simmons did not go

inside the police station prior to the assault.       Moreover, it


                                  19
suggests Simmons did not want JPD attention turned to Robinson; if

she were charged and interrogated for the marijuana possession, she

might reveal the sexual assault.

     Finally, Simmons’ omission evinces consciousness of guilt. In

his state-trial testimony, Simmons claimed he logged the marijuana

after the traffic stop and spent considerable time at police

headquarters while Catchings booked Robinson’s boyfriend.              In

district court, however, the Government showed Simmons never logged

the marijuana and did not return to police headquarters until two

hours later than he claimed.       The jury could reasonably infer

Simmons’ apparent fabrication was an attempt to create an alibi to

conceal the sexual assault.      Villarreal, 324 F.3d at 325 (“a

defendant's   exculpatory   statements   which   are   shown   by   other

evidence to be false may give rise to an inference of consciousness

of guilt”) (citing United States v. Pringle, 576 F.2d 1114, 1120

(5th Cir. 1978)).

                                 5.

     Simmons maintains the district court abused its discretion by

allowing the Government, in closing argument, to state he kidnapped

Robinson.    The Government argued:

            The evidence clearly establishes that the
            defendant placed Syreeta [Robinson] in fear of
            death, serious bodily injury, or kidnapping.
            First of all, he had already kidnapped her.
            And the reason that kidnapping is one of the
            of the factors that raises this to aggravated
            sexual abuse is because of the very terror
            that Syreeta told you about, the fear that she

                                  20
            experienced when she was taken out to this
            remote location with two armed officers ....

     At trial, Simmmons objected pursuant to Rule 404(b), which

prohibits the admission of extrinsic crimes or bad acts to show the

defendant behaved in conformity therewith.                 FED. R. EVID. 404(b).

Simmons asserted the Government was improperly insinuating he

committed kidnapping, a crime not charged, and which suggested he

possessed the character of a person who would commit sexual assault

and aggravated sexual abuse.             The district court overruled the

objection,    reasoning    there       was    a   fair   inference       Simmons   had

kidnapped Robinson.

     Simmons maintains the Government violated Rule 404(b), not by

introducing    new    evidence    of    prior     crimes   to     show    conformity

therewith, but by accusing Simmons of crimes not charged in the

indictment, which, according to Simmons, accomplishes the same

character attack Rule 404(b) proscribes.                   Accordingly, Simmons

maintains    the    district   court     reversibly       erred    by    failing    to

instruct the jury to disregard these comments.

     Contrary to Simmons’ assertions, the Government’s kidnapping

statements were not a proffer of bad acts to demonstrate bad

character     and    subsequent    behavior        in    conformity       therewith.

Instead, they were offered to assist in showing Robinson complied

with Simmons’ sexual demands because she feared for her life.                      Even

if the statements were improper, they did not amend the indictment




                                         21
or alter the essential elements the Government had to establish to

convict Simmons.

     We further note that, as with any such abuse of discretion

claim,   assuming   arguendo   the    Government’s   statements   were

erroneously permitted, Simmons had to show further they affected

his substantial rights; the comments must have been so prejudicial

as to affect the outcome of the proceeding.          United States v.

Saldana, 427 F.3d 298, 314 (5th Cir.), cert. denied, 126 S.Ct. 810

(2005). In the light of all the evidence and reasonable inferences

drawn therefrom, the kidnapping comment did not prejudice the jury

by suggesting any action not already presented to it by inference.

As the district court ruled, it was a fair inference.      Therefore,

the contested portion of the Government’s closing argument did not

affect Simmons’ substantial rights in a way that affected the

outcome of his trial.

                                 6.

     Finally, Simmons maintains the district court reversibly erred

by refusing his request to instruct the jury he was acquitted in

state court. He made this request after the Government referred to

“the state trial” in a redirect-examination question to the victim.

This violated a motion-in-limine ruling instructing the parties to

refer to that trial as “prior proceedings”.      Simmons twice moved

for a mistrial based on the alleged prejudicial effect of the

Government’s statement; it was denied each time.


                                 22
       Refusing to give a requested instruction is reviewed for abuse

of discretion.    See United States v. De La Rosa, 171 F.3d 215, 219

(5th   Cir.    1999).    Further,    a    ruling   that   the   Government’s

statements, even though violative of a prior ruling, did not

prejudice the defendant is also reviewed for abuse of discretion;

again,   the   defendant    must   show   the   statements      affected   his

substantial rights. See United States v. Morrow, 177 F.3d 272, 298

(5th Cir.), cert. denied, 528 U.S. 932 (1999).                   For obvious

reasons, “[t]he district judge's assessment of the prejudicial

effect carries considerable weight”.         Id.

       “[A]s a general matter, a trial court does not abuse its

discretion in excluding evidence of a prior acquittal on a related

charge”.      De La Rosa, 171 F.3d at 219. Such evidence “is not

relevant because it does not prove innocence but rather merely

indicates that the prior prosecution failed to meet its burden of

proving beyond a reasonable doubt at least one element of the

crime”. Id. (internal quotation omitted). In addition, a judgment

of acquittal is hearsay that does not satisfy an exception to the

hearsay rules.     Id.     Finally, such evidence is often excludable

under Federal Rule of Evidence 403, as its probative value likely

will be “substantially outweighed by the danger of prejudice,

confusion of the issues, or misleading the jury”.                 Id. at 220

(quoting FED. R. EVID. 403).



                                     23
     Nevertheless, Simmons contends the reference to “the state

trial”, coupled with testimony that he was terminated by the JPD,

created an inference of prior adjudicated guilt so prejudicial that

instructing the jury on his prior acquittal was merited.                Of

course,   the   jury   could   have    inferred   plausibly   either   the

Government was referring to the state trial of Catchings or that

Simmons was not convicted in the earlier state trial.         Given these

plausible inferences, and the isolated reference to “the state

trial” (of which Simmons’ lead counsel admitted, to the district

court, not being aware until advised much later by co-counsel), we

conclude the court did not abuse its discretion by refusing the

requested state-trial-acquittal instruction.

                                      B.

     The two remaining issues are presented by the Government’s

cross-appeal: (1) whether the district court, in calculating the

Guidelines range, erred by refusing to impose § 2A3.1(b)(3)(A)’s

two-level enhancement, which applies if the victim was “in the

custody, care or supervisory control of the defendant”; and (2)

whether the 240-months sentence, which was considerably below the

Guideline range, was unreasonable under Booker.

                                      1.

     Although, pursuant to Booker, the district court did not

impose a mandatory Guidelines sentence, it was still required,

post-Booker, to properly determine the Guidelines range as part of


                                      24
the process for determining Simmons’ sentence. E.g., United States

v. Smith, 440 F.3d 704, 707 (5th Cir. 2006).              In that regard, its

factual findings are reviewed for clear error; its interpretation

and application of the Guidelines, de novo.             E.g., United States v.

Villegas, 404 F.3d 355, 359 (5th Cir. 2005).

      The 1998 version of the Guidelines, in effect at the time of

Simmons’ September 1999 offense, was applied because it was found

less punitive than the 2004 version in effect at the time of

sentencing.      Although the Presentence Investigation Report, based

on the 1998 version, recommended a total offense level of 43,

corresponding to a sentence of life imprisonment, the district

court concluded the offense level was instead 41, corresponding to

a   sentencing    range   of     324-405     months.     It   included     in   its

Guidelines calculation both a six-level “color of law” enhancement

under   §   2H1.1(b)(1)    and     a   four-level      abduction-of-the-victim

enhancement under § 2A3.1(b)(5).             It sustained, however, Simmons’

objection to a two-level enhancement under § 2A3.1(b)(3)(A) for a

victim’s being “in the custody, care, or supervisory control of the

defendant”.      In support of that objection, Simmons contended §

2A3.1(b)(3)(A)      was   both    mutually      exclusive     with   the   above-

referenced § 2A3.1(b)(5) or § 2H1.1(b)(1) and inapplicable to an

officer/arrestee situation.            (As discussed infra, Simmons also

maintained there was no evidence Robinson was in his “custody”.)

The district court ruled imposition of the “custody” enhancement


                                        25
would   be    “double     counting”   in     the   light    of   §   2A3.1(b)(5)’s

“abduction” enhancement.

                                        a.

     As the Government contends, this “double-counting” ruling was

erroneous.     Application of both §§ 2A3.1(b)(3)(A) and 2A3.1(b)(5)

is not double-counting because each provision accounts for a

distinct harm.        Section 2A3.1(b)(3)(A)’s             “custody” enhancement

concerns the defendant’s violating a position of trust and accounts

for the increased risk of psychological damage made possible when

the victim is harmed by a person in such a position.                  See U.S.S.G.

§ 2A3.1 cmt. background (1998) (“Whether the custodial relationship

is temporary or permanent, the defendant in such a case is a person

the victim trusts or to whom the victim is entrusted.                             This

represents the potential for greater and prolonged psychological

damage.” (emphasis added)).            More specifically, in the police-

custody context, § 2A3.1(b)(3)(A) “punishes abuse of power over an

individual     in   the   officer’s    physical      and    legal    control”     and

“recognizes     the   particular      harm   inflicted      when     an   individual

entrusted to the care and supervision of an officer of the state is

unlawfully abused by [her] supposed caretaker”.                  United States v.

Volpe, 224 F.3d 72, 76 (2d Cir. 2000).

     In      contrast,     a   §   2A3.1(b)(5)       “abduction”          enhancement

recognizes     that   “[a]bduction      increases     the    gravity       of   sexual

assault or other crimes because the perpetrator’s ability to


                                        26
isolate the victim increases the likelihood that the victim will be

harmed”.   United States v. Hefferon, 314 F.3d 211, 226 (5th Cir.

2002) (quoting United States v. Saknikent, 30 F.3d 1012, 1013 (8th

Cir. 1994)).         See also U.S.S.G. § 1B1.1, cmt. n.1(A) (1998)

(“‘Abducted’    means       that   a   victim    was   forced    to   accompany    an

offender to a different location.”).

     Moreover,       even    assuming      arguendo     §§    2A3.1(b)(3)(A)      and

2A3.1(b)(5) did address the same harm, this court has recognized

the lack of a general Guidelines double-counting prohibition,

holding it exists only if “specifically forbidden by the particular

[G]uideline at issue ... [through] express language”.                       United

States v. Calbat, 266 F.3d 358, 364 (5th Cir. 2001) (emphasis

added).       The    Guidelines        contain   no    such     specific,   express

prohibition against application of both §§ 2A3.1(b)(3)(A) and

2A3.1(b)(5).        With regard to § 2A3.1(b)(3)(A), there is only one

express double-counting prohibition, and it applies to § 3B1.3, not

§ 2A3.1(b)(5).        See U.S.S.G. § 2A3.1 cmt. n.3 (1998) (“If the

adjustment in subsection (b)(3) applies, do not apply § 3B1.3

(Abuse of Position of Trust or Use of Special Skill).”).                          The

absence of such an express prohibition has been at least indirectly

recognized.     See United States v. Brown, 330 F.3d 1073, 1079-80

(8th Cir. 2003) (affirming sentence which imposed enhancements

under both §§ 2A3.1(b)(5) and 2A3.1(b)(3)(A); no double-counting

contention was raised as to these enhancements, however).

                                          27
                                      b.

       Along this line, rather than rely upon the district court’s

basis for not applying the enhancement, Simmons maintains, as he

did for sentencing, that § 2A3.1(b)(3)(A) is inapplicable because

Robinson was not in his “custody, care, or supervisory control”.

U.S.S.G. § 2A3.1(b)(3)(A).        In doing so, he focuses on commentary

from   the   current,   not   the    applicable     1998,    version   of   the

Guidelines,    which    states,     inter   alia,   that    the   enhancement

“includes offenses involving a victim less than 18 years of age

entrusted to the defendant, whether temporarily or permanently”.

U.S.S.G. § 2A3.1 cmt. n.3(A) (2005) (emphasis added).

       At the time of the offense, the victim was 19 years of age.

Therefore, Simmons contends § 2A3.1(b)(3)(A) does not apply to

police custody of adults, such as the victim, but was meant only to

apply when a minor is entrusted to a caretaker.             See, e.g., United

States v. Yazzie, 407 F.3d 1139, 1148 (10th Cir.) (Briscoe, J.,

concurring) (defendant testified he lived with and had disciplinary

authority over the minor-victim, who referred to defendant as her

stepfather), cert. denied, 126 S. Ct. 303 (2005); United States v.

Brown, 330 F.3d 1073, 1076 (8th Cir.) (minor-victim’s mother signed

note giving minor-victim permission to travel with defendant),

cert. denied, 540 U.S. 975 (2003); United States v. Carroll, 190

F.3d 290, 292 n.3 (5th Cir. 1999) (defendants were Boy Scout troop



                                      28
leaders for the minor-victims), withdrawn in part, 227 F.3d 486

(5th Cir. 2000).

     As the applicable 1998 Guidelines’ plain language makes clear,

however, § 2A3.1(b)(3)(A) is not limited to the minor/caretaker

context.     Rather,       it   was   explicitly      intended       to   have       “broad

application”.    U.S.S.G. § 2A3.1 cmt. n.2 (1998) (emphasis added).

Although the Guidelines list “teachers, day care providers,[ and]

baby-sitters”   as     examples       of   those   to    whom    §    2A3.1(b)(3)(A)

applies, they are simply “among those who [are] subject to this

enhancement”.        Id.    (emphasis       added).       Contrary        to    Simmons’

contentions, nothing in the Guidelines indicates § 2A3.1(b)(3)(A)

excludes police custody of adults; in fact, it has been applied in

such a context.       See Volpe, 224 F.3d at 76 (affirming application

of § 2A3.1(b)(3)(A) when adult victim was in police custody).

        Robinson, then 19, was arrested, handcuffed, and placed in

the back of Simmons’ police vehicle.                    He was an on-duty JPD

officer.     Catchings,         another    on-duty      JPD   officer,         was   aware

Robinson was in Simmons’ police vehicle. Accordingly, for numerous

obvious    reasons,     she     was   “entrusted”        to   Simmons’         care     and

supervision.     Robinson remained under his control, and in his

custody, during the relevant events, until Catchings drove her

home.      It goes without saying that Robinson was in Simmons’

“custody” or “care” for the purposes of § 2A3.1(b)(3)(A).




                                           29
      In   sum,    the    district   court      misapplied    §   2A3.1(b)(3)(A).

Accordingly, Simmons’ sentence must be vacated and this matter

remanded for resentencing.

                                          2.

      The 240-months sentence imposed by the district court was 84

months less than the low end of the Guidelines range (calculated

erroneously by the district court, as discussed above).                        The

Government claims the sentence is unreasonable because the district

court failed to properly consider factors contained in 18 U.S.C. §

3553(a) and focused instead on Simmons’ age.                 Because this matter

is   remanded     for    resentencing,     we   do   not   decide    this   claimed

sentencing error.         See United States v. Tzep-Mejia, 461 F.3d 522,

526 (5th Cir. 2006) (“If the district court makes an error in

application of the Guidelines, we vacate the resulting sentence

without     reaching      the   sentence’s        ultimate     reasonableness.”)

(citation omitted).

      Nevertheless, in our supervisory capacity, as well as to

assist     the   district    court   on    remand,    we   note     the   following

Guidelines policy statement from the applicable 1998 version: “Age

... is not ordinarily relevant in determining whether a sentence

should be outside the applicable guideline range [but] may be a

reason to [depart downward] when the defendant is elderly and

infirm”.     U.S.S.G. § 5H1.1 (1998) (emphasis added).               On remand, §

5H1.1 is particularly noteworthy, because it appears the decision


                                          30
to sentence below the Guideline range was based solely on Simmons’

age.    When asked by the Government at sentencing to explain the

grounds for the sentence, the district judge replied:

            The court simply feels that a term of
            imprisonment of 20 years for a man who is 48
            years old is a sufficient sentence in this
            case and serves all of the reasons for
            incarcerating a person for a long period of
            time. The court does not feel that a sentence
            in excess of 20 years would be beneficial
            either to the victim, to the public or to the
            defendant himself.
                 The court believes that a sentence within
            the guideline range without the departure
            would, in essence, put this man probably very
            close if not at the end of his life. And I
            think that 20 years of imprisonment is enough.

       Pre-Booker, our court rejected this same age-based rationale.

See, e.g., United States v. Fierro, 38 F.3d 761, 775 (5th Cir.

1994) (vacating sentence, which had a downward departure, the

district court’s having reasoned “a 20-year sentence was long

enough” for a defendant who “would be 64 or 65 when he got out of

prison”; our court held, inter alia, “a defendant’s age is an

improper basis for departure unless the defendant is ‘elderly and

infirm’ at the time of sentencing”), cert. denied, 514 U.S. 1051

(1995).

       Post-Booker, our court has not ruled on, in the light of §

5H1.1’s policy statement, a district court’s focus on age in

imposing a non-Guidelines (“reasonable”) sentence. Other circuits,

however, have held such consideration not inappropriate.       See,

e.g., United States v. Davis, 458 F.3d 491, 498 (6th Cir. 2006)

                                  31
(“[A]   trial   court     ...    has    a    freer     hand     to    account       for    the

defendant’s age in its sentencing calculus under § 3353(a) than it

had before Booker”.); United States v. Smith, 445 F.3d 1, 5 (1st

Cir. 2006) (holding district court did not err, inter alia, by

considering     age   because     “[t]hat         a   factor     is       discouraged       or

forbidden under the guidelines does not automatically make it

irrelevant”).    But see United States v. Lee, 454 F.3d 836, 839 (8th

Cir. 2006) (“age is normally not relevant to sentencing, unless the

defendant is elderly or infirm”).

     Although    consideration          of    age     appears    not      to   be    per    se

unreasonable post-Booker, a district court’s sentencing discretion,

and our reasonableness-inquiry on appeal, must be guided by the

sentencing considerations stated in 18 U.S.C. § 3553(a). See Tzep-

Mejia, 461 F.3d at 528; see also United States v. Mares, 402 F.3d

511, 519 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005).                            One such

guiding consideration is “any pertinent policy statement ... issued

by the Sentencing Commission”.                18 U.S.C. § 3553(a)(5)(A).                   Our

court recently held:            “[A] district court that ‘relies on any

factors   ...    deemed    by     the       Guidelines     to        be   prohibited        or

discouraged ... [should] address these provisions and decide what

weight, if any, to afford them in light of Booker’”.                        United States

v. Duhon, 440 F.3d 711, 717 (5th Cir. 2006) (quoting United States

v. Jackson, 408 F.3d 301, 305 n.3 (6th Cir. 2005)) (alteration in



                                             32
quotation), petition for cert. filed, (U.S. 18 May 2006) (No. 05-

11144).

       Accordingly, a district court should acknowledge such a policy

statement and explain why the prohibited or discouraged factor, as

it relates to the defendant, is so extraordinary that the policy

statement should not apply.        See id.; United States v. Guidry, 462

F.3d 373, 377 (5th Cir. 2006) (finding sentence unreasonable partly

because district court “failed to acknowledge [relevant Guidelines]

policy statement”).      A district court’s failure to do so bears on

the reasonableness of the sentence it imposes, as guided by the §

3553(a) factors.       See Duhon, 440 F.3d at 717; Guidry, 462 F.3d at

377.

                                    III.

       For the foregoing reasons, Simmons’ conviction is AFFIRMED;

his    sentence   is    VACATED;   and     this   matter   is   REMANDED   for

resentencing.

                                CONVICTION AFFIRMED; SENTENCE VACATED;
                                             REMANDED FOR RESENTENCING




                                      33
