United States Court of Appeals

for the Fifth Circuit ____________

No. 22-30442

____________

United States of America, 

Plaintiff—Appellee, 

versus

Sterling Robinson, 

Defendant—Appellant. 

______________________________

Appeal from the United States District Court 

for the Eastern District of Louisiana

USDC No. 2:20-CR-120-1 

______________________________

Before Smith, Southwick, and Higginson, Circuit Judges.

Stephen A. Higginson, Circuit Judge: 

Defendant-Appellant Sterling Robinson was convicted by a jury of one 

count of possessing a firearm or ammunition as a convicted felon and one 

count of attempted obstruction of a federal proceeding. He appeals his convictions, raising sufficiency challenges to both convictions, as well as errors 

relating to the evidence admitted at trial, the trial court’s jury instructions, 

and the prosecutor’s remarks in opening and closing arguments. He also appeals his sentence on the basis that the district court misapprehended its authority to order that his sentence run concurrently with another federal 

United States Court of Appeals

Fifth Circuit

FILED

December 4, 2023

Lyle W. Cayce

Clerk

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sentence. We AFFIRM Robinson’s convictions but VACATE his term of 

imprisonment and REMAND for a narrow resentencing as set forth below.

I.

A.

On March 13, 2020, Candace Anderson arrived at her apartment in 

New Orleans, with her nine-year-old son in the car. When she pulled into her 

parking spot, someone emerged from behind a nearby gate and began 

shooting at her car. Anderson drove to a nearby gas station, where she called 

911. 

She told the 911 operator that her ex-boyfriend Sterling Robinson had 

just shot at her car. Anderson told the operator that she had locked herself 

and her son in a gas-station bathroom and that she believed Robinson had 

followed them to the gas station. She described Robinson as “black, . . . 

brown[]-skinned,” and about 5’2” in height. She said he was last wearing a 

red and white shirt with black jeans. She guessed that the weapon he fired 

was a “forty caliber.” 

About ten to fifteen minutes later, New Orleans Police Department 

(“NOPD”) Officer Kevin Penn arrived on the scene, where his body camera 

captured his conversation with Anderson. Anderson told Officer Penn that 

when she arrived home, her ex-boyfriend was standing on the other side of a 

wooden gate, and when she parked her car, he came from behind the gate and 

began shooting at her car. She reiterated that she fled to the gas station and 

said that, when she exited her car, Robinson was there. Anderson explained 

that they lived together, but that she had broken up with him and “put him 

out” about three days earlier.

Continuing the interview in the parking lot, Anderson gave more 

details about the shooting, explaining that Robinson shot first at her tires and 

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then, when she backed up to leave and drive off, he continued shooting at the 

car. Anderson also asked Officer Penn if “the place that [she] need[s] to get 

a restraining order from” would be open tomorrow and if he could give her 

the address. While they were talking, Anderson received a call on her cell 

phone from Robinson. Officer Penn told her not to answer it, and she 

declined the call. 

When Anderson saw the bullet holes in the back of her car, Anderson 

said, “Dang, that could’ve went straight through,” and “I can’t believe 

that.” She explained that she had a big speaker in the trunk of the car and 

speculated that it may have stopped the bullets. Anderson took pictures of 

the holes in the back of the car and sent them to Robinson with the message, 

“U trying to kill me.” Robinson responded: “Man I’m crying my heart out 

it to[o] much im about to just kill myself f[or ]r[eal].” 

In another segment of body-camera footage from the gas station, 

Anderson can be heard (but not seen) talking on the phone. She says, “[Y]ou

could’ve killed me, son. If that speaker wasn’t back there, . . . I’d be dead, 

son, and that’s what you want.” She then raises her voice and says, “You 

trying to kill me!” In response to something Robinson said, Anderson 

threatened to kill Robinson and his children and stated that if Robinson killed 

her parents, she would receive money. 

Officer Penn then drove to Anderson’s apartment where she

reenacted the shooting, demonstrating how Robinson emerged and shot at 

her car. A crime-scene investigation ultimately documented five ninemillimeter caliber casings on the ground, deemed to have been fired from the 

same weapon. Robinson was subsequently arrested. 

On March 17, 2020, four days after the shooting, Robinson called 

Anderson from the Orleans Parish Prison. He told Anderson she needed to 

come to the prison early the next morning, stating, “It ain’t nothing but 

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domestic violence and . . . domestic violence aggravated assault with a 

firearm.” Robinson told Anderson that she needed to visit the DA’s Office, 

so that he can get a “cheap” bond and so that the other charges would be 

“throw[n] . . . out.”

In a phone call later that day, Robinson again pressed Anderson to visit 

the DA’s Office and sign an affidavit, which would ensure he was “straight.” 

Within the hour, Robinson called Anderson a third time, insisting she arrive 

early, so that “[t]hey can hurry up and throw that sh*t out.” He added that 

he needed to get out of prison before the “feds try to . . . pick [it] up too.” 

On a fourth phone call that same night, Robinson said he missed Anderson. 

When Anderson asked why he did something “like that to jeopardize” it, 

Robinson responded, “I don’t know, son. I f**ked up.” Later in the call, 

Robinson once again referenced an affidavit, stating, “Once you fill that 

affidavit out, they gone throw that sh*t out right then and there.” Anderson 

never went to the DA’s office to sign any affidavit. 

While in custody, Robinson was arrested by Jefferson Parish in April 

2020 booked for a murder that occurred in neighboring Jefferson Parish on 

the same night as the shooting of Anderson’s car. Robinson remained in 

continuous physical custody. No evidence of this murder was admitted at 

Robinson’s trial in this case.

Robinson and Anderson continued to speak on the phone over the 

next several months. On September 22, 2020, Robinson called Anderson not 

from his own jail account but from the account of another incarcerated person

after Anderson told Robinson that their calls were being recorded. The two 

discussed a meeting Anderson had with the Jefferson Parish District 

Attorney’s Office earlier that day. Anderson relayed that the Jefferson Parish 

DA’s Office knew all about the Orleans Parish shooting and had the 911 call, 

the police report, their text messages, and recordings of their phone calls. 

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Robinson responded that Anderson needed to tell the DA that “what 

happened in Orleans, that wasn’t him, so . . . That’s all you have to tell the 

people.” He continued, “Man, you ain’t telling people I had nothing to do 

with it.” Anderson responded: “I can’t lie and can’t tell the people, them 

people know everything, I’m telling you they know everything.” Later in the 

call, Robinson asked Anderson again about Orleans Parish. Robinson 

prompted, “You told them it was me,” to which Anderson responded, 

“Man, them people not stupid.” 

In another phone call that same evening, Anderson confirmed she told 

the Jefferson Parish DA’s Office that she identified Robinson as the one 

involved in “what happened in Orleans Parish.” When Robinson asked why, 

she responded, “They already know everything.” Later in the conversation, 

after Anderson told Robinson that “they” have the bullets that were

removed from her car, Robinson again said, “all you had to tell the people 

was, none of that, none of that wasn’t him.” When Anderson stated that she 

had already given three statements and cannot change her story now, 

Robinson disagreed, stating that people take their statements back. In that 

same call, Robinson criticized Anderson for not picking up when he called 

her that morning prior to her meeting with the Jefferson Parish DA’s Office. 

Robinson repeatedly toldAnderson that she should have told the DA’s Office 

that she had assumed it was Robinson who shot at her because they got into 

fight earlier, but that she now realized it was not him. 

He continued: “It wasn’t my old man that did this. Come on man, 

that’s all you have to tell the people son . . . [T]hat’s what I was calling this 

morning to let you know, . . . to school you on, son, to let you know who . . . 

You see what I’m saying, huh, hello, Candace?” Anderson told Robinson 

that she did not intend to testify to the grand jury and that she would not turn 

on him. As the call neared its close, Robinson reiterated what he wanted 

Anderson to do: “[I]f they was to bring Orleans Parish up in anything, . . . all 

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you have to do, I’m not talking about what’s going on out there. I don’t know 

what happened out there.” 

On November 5, 2020, a grand jury indicted Robinson on one count 

of possessing a firearm as a convicted felon, in violation of 18 U.S.C. 

§ 922(g)(1), and one count of attempting to obstruct justice by getting 

“C.A.” to provide false information about his criminal conduct, in violation 

of 18 U.S.C. § 1512(c)(2). 

B.

At trial, the parties stipulated that Robinson had a prior felony 

conviction. The Government presented—over various objections raised by 

the defense and overruled by the judge—the evidence summarized above, 

including the 911 call, the body-camera footage, and the phone calls from 

prison. The Government also presented testimony from, among others, the 

NOPD officer who responded to Anderson’s 911 call; the NOPD crime lab 

technician who collected the shell casings at the scene; an expert who 

confirmed that the casings came from the same firearm; and an ATF agent 

who gave expert testimony that four of the shell casings were manufactured 

in Arkansas and that one was manufactured in Mexico. 

The Government also called Anderson, who did not want to testify, 

and who appeared only because she was under subpoena. Once on the stand, 

Anderson recanted her entire story involving Robinson shooting at her car. 

She acknowledged that she had told the 911 operator and multiple authorities 

that it was Robinson who shot at her, and that she texted Robinson the photo 

of the bullet holes in her car, with the message, “You’re trying to kill me,” 

But she testified that, although someone shot at her car, it was not Robinson.

Anderson attributed her claimed mistaken identification in part to the 

migraine she was suffering from at the time of the shooting as well as the fact 

that her car windows were tinted and it was dark outside. At the same time, 

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however, she testified that the shooter was too tall to have been Robinson. 

When asked by the Government about the jail call when she told Robinson 

“You should’nt [have] did that,” she denied that she was referring to the 

shooting and said it was instead a reference to an “argument that [they] had 

had a couple days before that.”

The Government also asked Anderson why she identified Robinson as 

the shooter on the 911 call. Anderson said she was “kind of shaken up” 

because she had just been shot at with her child in the car and had assumed 

that the shooter was Robinson because of their recent argument. On crossexamination, Anderson agreed with defense counsel’s assessment that she 

had been “mad and mistaken” when she previously accused Robinson. 

At the close of the Government’s case, Robinson moved for a 

judgment of acquittal on both counts, which the court denied. Robinson did 

not present any evidence. After deliberations, the jury rendered a verdict 

finding Robinson guilty on both counts.

C.

Robinson was sentenced on July 21, 2022. Judge Fallon imposed a 

sentence of 120 months on count one and 120 months on count two, to run 

consecutively, for a total of 240 months. The court then stated that the 

sentence is to run concurrently with the sentences Robinson will serve in case 

numbers 15-cr-72, Robinson’s previous federal drug-trafficking conviction 

before Judge Jane Milazzo, and S139-2039, a state case. In the other federal

case, during the time between Robinson’s jury trial and sentencing in this 

case, Judge Milazzo had revoked Robinson’s term of supervised release and 

imposed a prison sentence of twenty-seven months, which she ordered to 

“run consecutively with any sentence imposed under criminal docket 20-

120,” which is the case before us.

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During Robinson’s sentencing hearing before Judge Fallon, the 

Government raised the discrepancy between Judge Milazzo’s order that the 

two federal sentences run consecutively with Judge Fallon’s oral order that 

the two run concurrently. In response, Judge Fallon said that “if [Judge 

Milazzo] made it consecutive to mine, I won’t deal with that one” and only

addressed the state-court sentence, which he ordered to run concurrently 

with the sentence he was imposing. In Robinson’s written judgment, the term 

of imprisonment specifies that it is to run concurrently with the sentence 

imposed in the state case but does not mention the other federal case.

D.

Robinson timely appealed. First, he challenges the sufficiency of the 

evidence to support his two convictions. Second, he contends that the district 

court reversibly erred by admitting hearsay in the form of the body-camera

video and jail-call recordings and by failing to instruct the jury on the limited 

use of impeachment evidence. Third, Robinson argues that improper 

remarks by the prosecution warrant a new trial. And finally, he contends that 

his sentence should be vacated and remanded for resentencing because the 

district court erroneously perceived that it was bound by Judge Milazzo’s 

order that the sentences in the two federal cases run consecutively. We 

address each in turn.

II.

Robinson challenges the sufficiency of the evidence to support his two 

convictions. Robinson preserved his sufficiency challenges by moving for a 

judgment of acquittal under Rule 29(a) of the Federal Rules of Criminal 

Procedure, so this court’s review is de novo. United States v. Johnson, 990 F.3d 

392, 398 (5th Cir. 2021). We must affirm each jury verdict if, “viewing the 

evidence in the light most favorable to the verdict and drawing all reasonable 

inferences from the evidence to support the verdict,” a “reasonable trier of 

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fact could conclude from the evidence that the elements of the offense were 

established beyond a reasonable doubt.” United States v. Valencia, 600 F.3d 

389, 430-31 (5th Cir. 2010) (citation omitted).1

 

A.

Robinson first challenges the sufficiency of the Government’s 

evidence to convict him under 18 U.S.C. § 922(g)(1) for being a felon in 

possession of a firearm or ammunition. To convict Robinson under 

§ 922(g)(1), the Government needed to prove that (1) Robinson was a felon, 

(2) he knew he was a felon, (3) he knowingly possessed a firearm or 

ammunition, and (4) the firearm or ammunition traveled in interstate 

commerce. Johnson, 990 F.3d at 400 (citing Rehaif v. United States, 139 S. Ct. 

2191, 2200 (2019)).

Three of the four elements are easily satisfied. Robinson stipulated at 

trial that he had a prior felony. This satisfies the first element—that he was a 

felon—as well as the second—that he knew his status. See United States v. 

Kieffer, 991 F.3d 630, 635 (5th Cir. 2021) (“Because [the defendant] 

stipulated to being a felon at trial, there was sufficient evidence to establish 

_____________________

1 Although Robinson separately challenges the admissibility of some of the 

evidence the Government presented to support the convictions, the sufficiency challenges 

should be disposed of first, without reference to the evidentiary issues, for double-jeopardy 

purposes. If “the record evidence, including the inadmissible evidence, discloses 

insufficient evidence of guilt,” so as to “entitle the defendant . . . to a judgment of 

acquittal,” United States v. Marshall, 762 F.2d 419, 423 (5th Cir. 1985), then a second trial 

of the defendant is barred by the Double Jeopardy Clause, see Burks v. United States, 437 

U.S. 1, 11 (1978). Accordingly, “[i]n conducting a sufficiency review under such 

circumstances, we consider all of the evidence that was before the jury—including [any] 

evidence that was erroneously admitted.” United States v. Miller, 146 F.3d 274, 280 (5th 

Cir. 1998) (emphasis added) (citing Lockhart v. Nelson, 488 U.S. 33 (1988), and Marshall, 

762 F.2d at 419).

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that he knew he was a felon[.]”). As to the fourth element, the Government 

presented testimony from an ATF agent that the casings found at the scene 

of the shooting were manufactured in Arkansas and Mexico and submitted 

an interstate-nexus report to the same effect. Robinson does not dispute the 

sufficiency of the evidence as to any of these three elements.

Robinson challenges only the third element—his possession of the 

firearm or ammunition—on the basis that the jury could not reasonably find 

that Robinson committed the shooting. Robinson argues that the 

Government’s only evidence pointing to him as the shooter was Anderson’s 

initial identification of Robinson. Because Anderson testified under oath that 

she was mistaken and that Robinson was not the shooter, Robinson argues 

that the jury was precluded from finding him guilty beyond a reasonable 

doubt. 

On close record analysis, we do not disturb the jury’s verdict. The 

Government played for the jury the audio of the 911 call in which Anderson 

unequivocally said that her “boyfriend was just shooting at [her] car,” and 

that he is “armed and dangerous.” Anderson described him as 5’2” and 

wearing a red and white shirt with black jeans. She said his name is Sterling 

Robinson. The Government also played body-camera footage of Anderson’s 

conversation with the responding officer. In the video, she tells the officer 

that her ex-boyfriend shot at her and explains that they had recently broken 

up. The Government published to the jury text messages that Anderson sent 

Robinson shortly after the shooting, containing a picture of the bullet holes 

in her car, with the text, “U trying to kill me.” Robinson’s response was not 

a denial or expression of confusion but instead, “Man I’m crying my heart 

out it[’s] to[o] much im about to just kill myself.” The jury also heard jailcall audio from days after the shooting, in which Anderson told Robinson, 

“You shouldn’t [have done] that!” Robinson again did not deny any 

wrongdoing and instead responded, “Man, you know I didn’t mean it though 

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man, come on, you know I didn’t mean that.” In other calls, months after the 

shooting, Robinson told Anderson “I know you ain’t tell them people 

nothing about Orleans Parish,” which is where the shooting happened, and 

lamented that Anderson was not “telling people [he] had nothing to do with 

it.” To this, Anderson responded, “I can’t lie.” 

This evidence is enough for a reasonable jury to conclude that 

Robinson shot at Anderson’s car. While Anderson recanted her accusations

on the stand, the jury was not required to believe her trial testimony over her 

earlier unequivocal identifications of Robinson. United States v. Huntsberry, 

956 F.3d 270, 279 (5th Cir. 2020) (“We accept ‘all credibility choices and 

reasonable inferences made by the trier of fact which tend to support the 

verdict’ and resolve conflicts in the evidence in favor of the verdict.”

(citation omitted)). 

Even beyond the jury’s ability to assess Anderson’s demeanor and 

body language, the jury’s decision to disbelieve Anderson’s trial testimony

finds support in the written record. Even if the jury believed that Anderson’s 

perception of the shooter was compromised because of her migraine and 

tinted windows, she failed to offer a consistent explanation for why she 

named Robinson specifically. She instead equivocated between an angerfueled accusation, and an honest assumption. Most critically, though, 

Anderson had an obvious reason to lie on the stand. Not only did she agree 

on the record that she did not want to testify against someone she has feelings 

for, but indeed the jail calls revealed that Robinson encouraged Anderson at 

length to change her story. The jury was entitled to conclude that Anderson’s 

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trial testimony was not a belatedly discovered truth but instead a response to 

Robinson’s influence.

2

Viewing the evidence in the light most favorable to the verdict, there 

was sufficient evidence that Robinson was the shooter, permitting the jury to 

conclude beyond a reasonable doubt that Robinson knowingly possessed the 

firearm and ammunition. His § 922(g)(1) sufficiency challenge fails. 

B.

Robinson also challenges the sufficiency of the Government’s 

evidence to convict him of attempting to obstruct justice under 18 U.S.C. 

§ 1512(c)(2). The statute penalizes anyone who “corruptly . . . obstructs, 

influences, or impedes any official proceeding, or attempts to do so.” Id.

Under the statute, an “official proceeding” must be federal in nature but is 

otherwise broadly defined, including any proceeding “before a judge or court 

of the United States” as well as a federal grand jury. 18 U.S.C. 

§ 1515(a)(1)(A), (g)(1). Although a proceeding “need not be pending or about 

to be instituted at the time of the offense,” 18 U.S.C. § 1512(f)(1), the 

proceeding “must at least be foreseen, such that the defendant has in 

contemplation some particular official proceeding that he intends his conduct 

would impede or obstruct.” United States v. Delgado, 984 F.3d 435, 452 (5th 

Cir. 2021) (internal quotations and citation omitted). Similarly, there must 

be “some ‘nexus’ between the obstructive act and some official government 

_____________________

2 Robinson cites a Sixth Circuit case from 1979, United States v. Orrico, 599 F.2d 

113, 118 (6th Cir. 1979), and a Utah Supreme Court case from 1989, State v. Ramsey, 782 

P.2d 480, 484 (Utah 1989), for the proposition that “courts have held that an 

uncorroborated, out-of-court allegation that is recanted by the declarant at trial is legally 

insufficient to sustain a guilty verdict.” Setting aside that those cases are many decades old 

and from out-of-circuit jurisdictions, they do not resemble Robinson’s case. Here, 

Anderson’s “out-of-court allegation” that Robinson shot at her car is not 

“uncorroborated” for the reasons just described.

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proceeding.” Id. (citation omitted). Finally, “a person acts ‘corruptly’ under 

the statute when they act ‘knowingly and dishonestly, with specific intent to 

subvert or undermine the due administration of justice.’” Id. (citation 

omitted). This intent can be proven with “circumstantial evidence alone.” 

United States v. Bedoy, 827 F.3d 495, 509 (5th Cir. 2016) (citation omitted). 

To demonstrate “attempt,” the Government must show that the 

defendant specifically intended to commit the underlying crime and took a 

“substantial step” toward committing it. United States v. Howard, 766 F.3d 

414, 419 (5th Cir. 2014) (citation omitted). A “substantial step” is one that 

“strongly corroborates the firmness of the defendant’s criminal intent.” Id.

It must be “‘more than mere preparation,’ but is ‘less than the last act 

necessary before’ the crime is in fact committed.” Id. (citation omitted).

The Government’s evidence of Robinson’s attempted obstruction of 

justice consisted of two sets of phone calls from prison: the March 2020 calls 

and the September 2020 calls. In the March calls, Robinson encouraged 

Anderson to go to the D.A.’s office to sign what appears to be a drop-charges

affidavit, and in the September calls, Robinson explained to Anderson how 

she might change her story. Because we conclude that the September calls 

independently constitute attempted obstruction and support Robinson’s 

§ 1512(c) conviction, we do not address the March calls. 

Robinson’s challenges to the sufficiency of the September phone-call 

evidence to support his conviction for attempted obstruction are twofold. 

First, he contends that the September conversations pertained to Anderson’s 

meeting at the Jefferson Parish D.A.’s office, but that no “official 

proceeding,” i.e., federal proceeding, arose from the Jefferson Parish 

investigation. Second, he argues that Robinson’s comments were wholly 

retrospective, as he explained to Anderson what she “should have and could

have said” in her meeting with Jefferson Parish.

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Both arguments, however, cannot be reconciled with the record. 

First, while Robinson is correct that the September calls focused on 

Anderson’s meeting earlier that day with the Jefferson Parish D.A.’s office—

and that the Jefferson charge (a murder) did not itself become federal—

Robinson’s obstructive comments on the September calls did not involve the 

Jefferson Parish charges. Instead, Robinson repeatedly asked about, and gave 

Anderson instructions on, the Orleans Parish charges. Importantly, there has 

been no suggestion, at trial or in briefing now, that there was any other 

conduct in Orleans that Robinson might have been addressing. And even if 

there were, the jury could reasonably infer that his obstructive comments 

were about the shooting.

Accepting the conclusion that Robinson’s comments pertained to 

Orleans, his argument that the Jefferson investigation did not become federal 

falls by the wayside. Obstruction as to Orleans is obstruction as to the 

shooting, which went federal. See Delgado, 984 F.3d at 452 (explaining that 

the defendant need only “‘ha[ve] in contemplation some particular official 

proceeding’ that he intends his conduct would impede or obstruct” (citation 

omitted)). The statute does not require that Robinson specifically apprehend 

or anticipate the federal nature of the proceedings.3 “‘[N]o state of mind

need be proved with respect to’ whether the proceeding is federal to prove 

§ 1512(c) was violated.” Bedoy, 827 F.3d at 508 (quoting 18 U.S.C. 

§ 1512(g)(1)).

Second, Robinson is mistaken when he argues his comments were 

only retrospective. While Robinson emphasizes that the phone calls 

happened after Anderson’s meeting with the Jefferson Parish D.A., the 

_____________________

3

 In any case, the jury could have reasonably concluded that Robinson anticipated 

that the shooting would go federal as he made a specific reference to “the feds” picking up 

the charges in the March phone calls. 

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comments were not mere lamentations of what could have been. Instead, 

Robinson repeatedly urged Anderson to change her story. As one example, 

Robinson told Anderson: “all you have to tell them people is, I understand 

everything y’all saying but . . . that wasn’t him, . . . what happened in 

Orleans, that wasn’t him, so . . . what are y’all talking about. That’s all you 

have to tell the people.” A rational factfinder could easily conclude that this 

was forward-looking advice—that is, a substantial step toward corruptly 

influencing proceedings by encouraging Anderson to lie. The same is true for 

another portion of the calls. Robinson told Anderson: “if they was to bring 

Orleans Parish up in anything, . . . all you have to do” is say “I’m not talking 

about what’s going on out there. I don’t know what happened out there.” 

Robinson’s comments are trained on a future plan, telling Anderson that if 

authorities “w[ere] to bring Orleans Parish up,” she should decline to talk 

about it and say she did not know what happened. Beyond the calls 

themselves, Anderson’s trial testimony itself reinforces the conclusion that 

Robinson was encouraging her to lie for him moving forward. After all, once 

on the stand, she did what Robinson asked: recant her prior statements.

The September phone calls were sufficient evidence upon which the 

jury could conclude that Robinson attempted to “corruptly . . . obstruct[], 

influence[], or impede[] an[] official proceeding,” 18 U.S.C. § 1512(c)(2), 

namely by encouraging Anderson to lie for him with regard to the shooting in 

Orleans Parish. Robinson’s sufficiency challenge to his conviction on count 

two therefore fails.

III.

Robinson also argues that the district court erred in admitting (i) the 

body-camera footage and (ii) the audio from the jail calls. He further contends 

(iii) that the district court erred in not giving the jury an instruction on the 

limited use of evidence of prior inconsistent statements.

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The government agrees that Robinson preserved his evidentiary

objections to the body-camera footage, hence this court will review for abuse 

of discretion, subject to a harmless-error analysis. United States v. Noria, 945 

F.3d 847, 853 (5th Cir. 2019) (citation omitted). Similarly, a failure to provide 

a requested jury instruction is reviewed for abuse of discretion, United States 

v. Grant, 683 F.3d 639, 650 (5th Cir. 2012), subject to harmless-error review, 

United States v. Aldawsari, 740 F.3d 1015, 1019 (5th Cir. 2014). On the other 

hand, Robinson has not identified specific preservation of evidentiary 

objection to recorded jail call statements, as we discuss below.4 

A.

The parties agree that some portion of the body-camera footage is 

admissible for its truth. Specifically, the Government argues, and Robinson 

concedes, that Anderson’s statements identifying Robinson constitute prior 

identifications of someone the declarant perceived earlier, and are therefore 

admissible as non-hearsay under Federal Rule of Evidence 801(d)(1)(C). 

Rule 801(d) provides that a statement is not hearsay if “[t]he declarant 

testifies and is subject to cross-examination about a prior statement, and the 

statement . . . identifies a person as someone the declarant perceived earlier.” 

Fed. R. Evid. 801(d)(1)(C). Anderson testified and was subject to crossexamination, so each of her prior statements that Robinson shot at her is 

admissible non-hearsay under this rule. This accounts for the considerable

material in the body-camera footage.

_____________________

4 In briefing as to standard of review, Robinson directs us to his written objection 

to the body-camera footage, as well as a pre-trial discussion before the district court 

regarding hearsay issues that may exist in both the body camera video and also the audio 

calls. Ultimately, because we conclude that any error in the unrestricted admission of 

specific statements in the audio calls would be harmless, Robinson’s appellate argument as 

to audio statements heard by the jury necessarily would also fail applying procedural default 

and a plain-error standard of review.

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As to the remainder of the footage,5 Robinson’s substantive 

evidentiary arguments on appeal are briefed too imprecisely to permit 

meaningful assessment by this court. Robinson does not proceed through the 

body-camera footage on a statement-specific basis and instead objects to the 

footage wholesale. But the footage collectively lasts for over twenty minutes 

and contains many statements, by different speakers, made under many 

different circumstances. The hearsay character of a statement and/or the 

applicability of a given hearsay exception is necessarily tethered to individual 

statements or categories of statements.

For instance, when Anderson’s phone lights up because she’s 

receiving a call, she immediately says, “That’s him calling me now.” This

statement is an admissible present-sense impression because it is a 

description of an event made “made while or immediately after the declarant 

perceived it.” Fed. R. Evid. 803(1). As another example, Anderson’s 

statements made during the fight on the phone (presumably with Robinson) 

qualify as “excited utterance[s],” because they are “statement[s] relating to 

a startling event or condition”—here, the shooting itself and the discovery 

of the bullet holes in her car—“made while [she] was under the stress of 

excitement that it caused.” Fed. R. Evid. 803(2).

The body-camera footage as a whole, therefore, is not a workable unit

for appellate argument and analysis. To decide whether the district court 

abused its discretion in admitting the evidence, we would need to proceed 

through the various statements made over the course of twenty minutes of 

video footage and assess whether Robinson has shown an error in each 

_____________________

5

 Although the district court initially admitted the body-camera footage to refresh 

Anderson’s recollection and for impeachment at the end of trial, the court concluded that 

the footage was admissible for its truth as present-sense impressions and excited 

utterances.

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statement’s admission at trial. Without party briefing as to the admissibility 

of individual statements, we are unable to find reversible evidentiary error.

Even if we assume some portion of the body-camera footage were

inadmissible, it did not have a “substantial and injurious” influence, see 

United States v. Lowery, 135 F.3d 957, 959 (5th Cir. 1998) (citation omitted)

on the jury’s verdict. The other admissible evidence included the 911 call on 

which Anderson said that Robinson was shooting at her car, Anderson’s text 

messages to Robinson containing a photo of the bullet holes with the caption 

“U trying to kill me,” as well as Anderson’s repeated identifications of 

Robinson as the shooter on the body-camera footage. 

Furthermore, the body-camera footage was cumulative with 

admissible evidence. See El-Mezain, 664 F.3d at 526 (“It is well established 

that error in admitting evidence will be found harmless when the evidence is 

cumulative, meaning that substantial evidence supports the same facts and 

inferences as those in the erroneously admitted evidence.”). For example, 

Robinson objects to Anderson’s statements that her son was in the car, but 

that evidence was cumulative with the 911 call where she said her boyfriend 

was shooting at her car and her nine-year-old son was with her. Robinson also 

objects to Anderson’s statements involving the location of the bullets in the 

car and the notion that Robinson was “trying to harm” her or “trying to kill” 

her, but that evidence was cumulative of Anderson’s text message to 

Robinson containing a photo of the bullets, with the accusation, “U trying to 

kill me.”

The other material—relating generally to Anderson’s breakup with 

Mr. Robinson, her “feelings” about him, and the “details of their 

relationship”—may have been, as Robinson argues, “irrelevant” and 

“inflammatory,” but that objection sounds in Rule 403, not substantially 

prejudicial hearsay. See El-Mezain, 664 F.3d at 494. Considering the other 

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substantial evidence that Robinson shot at Anderson’s car, it cannot be 

reasonably said that those statements “had a substantial . . . effect” on the 

jury’s view of Robinson’s guilt of the crime charged, i.e., possession of the 

gun. See Lowery, 135 F.3d at 959 (citation omitted). There is no “reasonable 

possibility that [any] improperly admitted evidence” in the body-camera

footage “contributed to the conviction.” See El-Mezain, 664 F.3d at 526 

(citation omitted).

Therefore, if there was any error in the admission of the footage, it

was harmless.

B.

Robinson also argues that the district court erred in admitting audio of 

Robinson’s and Anderson’s phone calls from jail. Robinson first objects to 

the admission of Anderson’s statements to Robinson on the March calls that 

he “shouldn’t [have done] that,” and that he “f**ked everybody up.” He 

adds in a parenthetical, but says nothing further about, Anderson’s statement 

to Robinson that she “hopes [he] learns [his] f**king lesson for real.” This 

argument fails because, even if the statements were for some reason 

inadmissible,6 they are cumulative with Anderson’s other, repeated 

accusations of Robinson, evidence of which was properly admitted via the 911 

call, the text messages, and the body-cam footage of her 801(d)(1)(C) prior 

identifications. See El-Mezain, 664 F.3d at 526; United States v. Hall, 500 

F.3d 439, 444 (5th Cir. 2007).

_____________________

6

 Only one of these statements appears to qualify as hearsay: Anderson’s statement 

that Robinson shouldn’t have “[done] that” seems to have been offered for the truth of the 

fact that Robinson did “that,” i.e., the shooting. The other statements do not appear to 

have been offered for their truth.

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Robinson also objects to certain statements made on the September 

phone calls. Robinson argues that the district court erred in admitting 

Anderson’s statements about what the Jefferson Parish District Attorney’s 

Office told her. He contends that Anderson’s statements that the authorities 

“already know everything,” “already know what happened in Orleans 

Parish,” and the like, were inadmissible hearsayHe further contends that the 

statements were prejudicial because they implied that the case was “openand-shut.” 

The Government argues, and Robinson does not dispute, that 

Robinson’s statements on the phone calls are admissible non-hearsay as 

statements of a party-opponent. This is correct. See Fed. R. Evid. 

801(d)(2)(A) (providing that a statement is not hearsay if it is “offered 

against an opposing party and . . . was made by the party in an individual . . . 

capacity”). 

The Government further argues that Anderson’s statements on the 

calls are admissible to provide context for what Robinson was saying. We 

agree that when a defendant’s recorded statements are admissible as a partyopponent admission under Rule 801(d)(2)(A), an interlocutor’s statements, 

“even if considered hearsay,” are “admissible to put [the defendant’s] 

statements into context.” United States v. Dixon, 132 F.3d 192, 199 (5th Cir. 

1997); see also United States v. Jones, 873 F.3d 482, 496 (5th Cir. 2017) (“[The 

defendant’s] statements during these calls were admissions of a party 

opponent under Federal Rule of Evidence 801(d)(2)(A), and the other call 

participants’ statements were admissible to provide context.”).

The phone-call transcripts reveal that all of Anderson’s comments 

about Jefferson Parish gave context to Robinson’s questioning and fixation 

on what Anderson told authorities about Orleans Parish, as well as his 

repeated urgings that she should not have told them that he was the culprit.

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However, the case law that sanctions this practice does not permit the 

interlocutor’s statements to be admitted for their truth. See United States v. 

Gutierrez-Chavez, 842 F.2d 77, 81 (5th Cir. 1988). 

Neither Robinson nor the Government points to a limiting 

instruction, requested or given, restricting use by the jury of Anderson’s 

comments during the jail calls. And, on appeal, Robinson does not argue the 

district court committed reversible error by failing to provide a limiting 

instruction that her audio call statements could only be relied upon for 

context, but instead that Anderson’s comments are inadmissible hearsay. In 

that posture, we assume that the jury improperly may have used Anderson’s 

side of the conversation for the truth of what Jefferson Parish “knew” and 

what evidence they had of Robinson’s guilt, but we hold that any such error 

is harmless. Anderson specifically said that authorities had her text messages 

to Robinson and her prior accusations of Robinson, including on the 911 call.

The 911 call, the text messages, and Anderson’s other prior accusations of 

Robinson were all properly admitted at trial, meaning that Anderson’s 

statements on the call with Robinson did not “bolster” the Government’s 

case against Robinson to any perceptible degree. Anderson’s statements, 

even if admitted for their truth, are therefore cumulative with the admissible 

evidence, rendering any error harmless. See El-Mezain, 664 F.3d at 526; Hall, 

500 F.3d at 444.

For these reasons, we find no error in the district court’s admission of 

the jail-call audio and transcripts.

C.

Robinson also argues that the district court reversibly erred in failing 

to give the jury instruction he requested on the limited use of prior 

inconsistent statements. “A refusal to give a requested instruction is 

reversible error only if the proposed instruction was (1) substantively correct, 

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(2) not substantively covered in the jury charge, and (3) concerned an 

important issue in the trial, such that failure to give the requested instruction 

seriously impaired the presentation of a defense.” United States v. Jones, 132 

F.3d 232, 242 (5th Cir. 1998).

Robinson’s argument fails on the third prong. Robinson does not 

specify the trial statements he contends should have been subject to the 

requested instruction—that is, evidence that was admitted only for 

impeachment by prior inconsistency. As Robinson elsewhere acknowledges, 

Anderson’s initial statements identifying Robinson were properly admitted 

as substantive evidence under Rule 801(d)(1)(C), which classifies prior 

identifications by the declarant as non-hearsay. In addition, the 911 call was 

fully admissible for its truth as a present-sense impression. Because none of

Anderson’s prior statements identified for us was admitted as a prior 

inconsistent statement for impeachment only, the requested instruction was 

not only unnecessary, but indeed would have been—as the district court 

observed—“misleading.”

Accordingly, the district court did not abuse its discretion in declining 

Robinson’s request to give a jury instruction on the limited use of prior 

inconsistent statements.

* * *

For these reasons, Robinson has not shown that the district court 

abused its discretion as to its admission of evidence or its jury instructions. 

IV.

Robinson also argues that the prosecution made improper remarks in 

its opening and closing arguments, warranting a new trial. To prevail on this 

claim, he must make two showings: (1) that the prosecutor made an improper 

remark and (2) prejudice from the remark. United States v. Beaulieu, 973 F.3d 

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354, 360 (5th Cir. 2020). Robinson concedes that he did not object to these 

remarks in the trial court, meaning that this court reviews only for plain error. 

To establish plain error, Robinson must show an error that was clear and 

obvious and that the error affected his substantial rights. Puckett v. United 

States, 556 U.S. 129, 135 (2009). If he makes such a showing, this court has 

the discretion to correct the error if it seriously affects the “fairness, integrity 

or public reputation of judicial proceedings.” Id. (citations omitted).

Robinson’s objections to the arguments fall into two general 

categories. First, he argues that the Government appealed to juror passions 

and the need to protect the community from future harm. Robinson 

specifically argues that the Government should not have tasked the jury with 

protecting “the most vulnerable people in our society” from “the most 

dangerous.” He further takes issue with the Government’s statement that 

dropping charges—as Robinson urged Anderson to request—“would allow 

a lie to stand, and you’re not allowed to let a lie stand, not when her little 

boy’s life is in jeopardy.” He contends that the Government improperly told 

the jury that “truth” and “justice” required pursuing the charges. 

The Government did not act improperly in this regard. As to 

Robinson’s dangerousness and the victims’ vulnerability, these were 

permissible characterizations of the trial evidence, which showed that 

Robinson shot at Anderson’s car while her nine-year-old son was inside, and 

then encouraged her to recant her statement to authorities. That Robinson 

“disliked . . . the inferential gloss that the Government chose to put on th[e] 

facts[] cannot be a ground for reversal, in light of attorneys’ ‘wide latitude’ 

in crafting their closing arguments.” United States v. Valas, 822 F.3d 228, 

244-45 (5th Cir. 2016) (citation omitted).

As to “truth,” “justice,” and the juror’s role on behalf of the 

community, this court has explained that “unless calculated to inflame, an 

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appeal to the jury to act as the conscience of the community is not 

impermissible.” United States v. Brown, 887 F.2d 537, 542 (5th Cir. 1989) 

(cleaned up) (citation omitted). Read in context, the Government’s remarks 

cannot be described as “calculated to inflame.” See id. Indeed, the 

Government’s remarks in this case are more innocuous than other 

prosecutor statements that this court has held to be permissible. For 

example, in United States v. Brown, the prosecutor said—in a drug trial— that 

“drugs are a terrible thing and they are ruining the society,” and “it’s up to 

you to do something about it and that is returning a verdict of guilty on these 

charges.” Id. This court held that even these statements “did not rise to the 

level of an improper law and order appeal.” Id. The argument here was 

milder than that. Robinson has failed to show error in the Government’s 

purportedly inflammatory remarks. 

Second, Robinson argues that the Government referred to facts not in 

evidence. But the Government is permitted to comment on inferences drawn 

from the evidence presented at trial, United States v. Mendoza, 522 F.3d 482, 

491 (5th Cir. 2008), and at least two of the three statements identified by 

Robinson are “reasonable inferences or conclusions that can be drawn from 

th[e] evidence.” Id.

Robinson first argues that the Government detailed the phone call 

between Anderson and Robinson on the night of the shooting as captured on 

the body-camera video, even though no evidence revealed Robinson’s side of 

the conversation. Robinson is presumably referring to the Government’s 

statement in closing that “those phone calls is where the obstruction starts. 

‘Don’t call the police. I’ll kill your parents.’ ‘Oh, yeah, you’re going to kill 

my parents? I’m going to kill your kids.’” The latter statement was in 

evidence, but the first statement (“Don’t call the police. I’ll kill your 

parents”) is the Government’s imagining of what Robinson said to Anderson 

on the phone and was not in evidence. Nonetheless, it is a fair inference that 

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Robinson said something to that effect. Anderson said on the phone: “You 

know what? You can kill, you can shoot whoever you want to shoot, son, your 

. . . children gonna die.” She continues, “I don’t give a f**k, like I told you, 

I’m getting money [if] you kill my mama or my dad—kill them.” The 

Government’s inferential gloss—that Robinson threatened to kill 

Anderson’s parents—was permissible based on this evidence. 

Robinson further objects to the Government’s speculation about both 

the meaning and intent behind his statements on the jail phone call 

recordings. Specifically, Robinson argues that the Government improperly 

asserted that Anderson did not want Robinson to know she called the police, 

even though the evidence showed he knew. The phone calls were fully 

available to the jury, so if the Government’s characterization was belied by 

the evidence, the jury could easily reject it.

Finally, Robinson contends that the Government improperly implied 

that Anderson suffered from a history of abuse unknown to the jury. 

Robinson takes issue with the Government’s statement in opening that 

Anderson “is a vulnerable person who has been through things in life that 

most people wouldn’t be able to comprehend, much less live through and 

keep surviving.” This reference to broader difficulties in Anderson’s life was 

improper. Except for the shooting at issue in this case, the Government did 

not present any evidence of the purportedly incomprehensible things—

plural—that Anderson had lived through. The jury was, through this 

comment, invited to speculate on some unknown horrors of Anderson’s life. 

Nevertheless, even assuming this remark was improper, it—like all the 

challenged remarks—did not prejudice Robinson.

Robinson failed to demonstrate prejudice from the Government’s 

arguments, much less an error warranting reversal under plain-error review. 

The “determinative question is whether the prosecutor’s remarks cast 

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serious doubt on the correctness of the jury’s verdict.” Beaulieu, 973 F.3d at 

361 (quoting Mendoza, 522 F.3d at 492). “In answering that question, we may 

consider ‘(1) the magnitude of the prejudicial effect of the statements, (2) the 

efficacy of any cautionary instructions, and (3) the strength of the evidence 

of defendant’s guilt.’” Id. (quoting Mendoza, 522 F.3d at 492).

Here, all three factors compel the conclusion the remarks did not cast 

serious doubt on the correctness of the jury’s verdict. First, the remarks likely 

had little prejudicial effect. As explained, the Government refrained from 

inflaming juror passions and drew permissible inferences from the trial 

evidence. Second, the district court gave explicit instructions that “the 

questions, statements, objections, and arguments made by the lawyers are 

not evidence,” and that “[t]he function of the lawyer is to point out those 

things that they feel are most significant and are helpful most to their side of 

the case.” The court continued: “In the final analysis, however, members of 

the jury, it is your own recollection and interpretation of the evidence that 

controls in the case. What the lawyers say is not binding upon you.” Jurors 

are presumed to follow instructions. United States v. Skelton, 514 F.3d 433, 

446 (5th Cir. 2008). Finally, as described above, the evidence of Robinson’s 

guilt as to both counts was strong. The likelihood that any improper remarks 

by the Government influenced the jury’s guilty verdicts is very low.

Accordingly, Robinson is not entitled to a new trial based on the 

Government’s remarks.

V.

Finally, Robinson argues that his sentence should be vacated and 

remanded for resentencing because the district court misapprehended its 

authority to order that Robinson’s sentence run concurrently with a 

previously imposed federal sentence—a revocation sentence issued by Judge 

Milazzo. Robinson concedes that this issue is subject to plain-error review for 

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trial counsel’s failure to object. The Government agrees, acquiescing to a 

vacatur of Robinson’s sentence and a limited remand. 

Judge Fallon initially announced that Robinson’s sentence would run 

concurrently with the sentence imposed upon his revocation of supervised 

release. But after imposition of the sentence, the Government interjected to 

point out that Judge Milazzo, who had imposed the revocation sentence, had 

ordered the sentences to run consecutively. As a result of this tangled 

presentation, the district court retracted its order, stated that Judge Milazzo 

made the federal sentences consecutive, and ultimately omitted any 

reference to Judge Milazzo’s sentence in the written judgment and instead 

ordered that the sentence in this case run concurrently only with the state 

case.

As the Government agrees, Judge Milazzo did not have authority to 

order that her sentence run consecutively to the sentence imposed in this 

case. By statute, “if a term of imprisonment is imposed on a defendant who 

is already subject to an undischarged term of imprisonment, the terms may 

run concurrently or consecutively.” 18 U.S.C. § 3584(a). This court has held

that “§ 3854 does not provide a district court authority to order that its 

sentence run consecutively to an anticipated but not-yet-imposed federal 

sentence,” and moreover that, “as a general principle, one district court has 

no authority to instruct another district court how, for a different offense in 

a different case, it must confect its sentence.” United States v. QuintanaGomez, 521 F.3d 495, 498 (5th Cir. 2008).

Here, we must correct the district court’s conclusion that it was 

bound by Judge Milazzo’s order that the two federal sentences run 

consecutively. Furthermore, the error affects Robinson’s substantial rights. 

The result of this misapprehension was a retraction of the district court’s

initial proclamation that the sentence would run concurrently with the other 

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federal sentence. Robinson was sentenced to twenty-seven extra months of 

federal prison time by virtue of the mistake.

We vacate Robinson’s term of imprisonment and remand for the 

limited purpose of clarifying whether Robinson’s prison sentence should run 

consecutively or concurrently with the revocation sentence. 

VI.

The Government presented sufficient evidence upon which a rational 

jury could conclude that Robinson was guilty beyond a reasonable doubt of 

violating 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 1512(c)(2). Moreover, 

Robinson is not entitled to a new trial based on any evidentiary errors, the 

failure to give an impeachment instruction, or any improper remarks by the 

prosecutor. But, as the parties agree, vacatur and remand of Robinson’s 

prison sentence is warranted considering the district court’s 

misapprehension of its sentencing authority.

We AFFIRM Robinson’s convictions and VACATE his term of 

imprisonment and REMAND for a narrow resentencing limited to the sole 

issue of whether Robinson’s prison sentence in this case shall run 

concurrently or consecutively with his other federal sentence imposed upon 

revocation of his supervised release.

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