IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-30813

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

CHRISTOPHER G. WAGUESPACK, 

 Defendant - Appellant

Appeal from the United States District Court 

for the Middle District of Louisiana

Before HAYNES, GRAVES, and DUNCAN, Circuit Judges.

JAMES E. GRAVES, Circuit Judge:

A jury convicted Christopher G. Waguespack of knowingly distributing 

and possessing child pornography, in violation of 18 U.S.C. §§ 2252A(a)(2) and 

2252A(a)(5)(B). The district court sentenced Waguespack to 180 months’ 

imprisonment on each count to run concurrently, followed by 10 years of 

supervised release. He now challenges his conviction and sentence on six 

grounds. We AFFIRM.

I. BACKGROUND

A. Investigation

In March 2015, Investigator Louis Ratcliff from the Louisiana Attorney 

General’s Office conducted an undercover investigation of peer-to-peer 

United States Court of Appeals

Fifth Circuit

FILED

August 15, 2019

Lyle W. Cayce

Clerk

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networks1 for child pornography. Ratcliff used Torrential Downpour2 to 

download over 400 images of child pornography from an IP Address in Baton 

Rouge, Louisiana. On May 5, 2015, he opened a file on his March investigation 

and authored a report on his investigation results. On June 13, 2015, Ratcliff

conducted another investigation and downloaded over 200 images of child 

pornography from an IP Address in Baton Rouge, Louisiana. Ratcliff 

subpoenaed Cox Communications to provide the IP Addresses for the 

downloads that occurred on March 29–30, 2015, and June 13, 2015. Cox 

Communications informed Ratcliff that the IP Addresses belonged to 

Waguespack’s father, Larry Waguespack, with whom Waguespack lived. 

On September 24, 2015, officers executed a search warrant at 

Waguespack’s residence. The officers seized a computer from Waguespack’s 

bedroom. The computer contained software actively searching for and 

downloading files with file names indicative of child pornography. After a 

forensic examination, the computer was found to have encrypted space and 

 

1 Peer-to-peer file sharing is a means of Internet communication utilizing 

software that lets users exchange digital files through a network of linked 

computers. Users access peer-to-peer networks by downloading the peer-topeer software from the Internet; this software is used exclusively for sharing 

digital files. Generally, after a user downloads or installs the software, either 

the user selects a folder to store downloaded files or the installation program 

designates the shared folder as the default folder into which files are 

automatically downloaded. Files that are downloaded into the shared folder 

(or downloaded into a separate folder but later placed into the shared folder) 

are available to anyone on the peer-to-peer network for downloading. Someone 

interested in sharing child pornography with other peer-to-peer network users 

need only leave or place such files in his shared folder, which other users may 

then access by searching for relevant terms and phrases.

United States v. Richardson, 713 F.3d 232, 233–34 (5th Cir. 2013).

2 At trial, Agent David Ferris testified that Torrential Downpour is a BitTorrent 

program used by law enforcement to investigate peer-to-peer networks. It targets IP 

addresses that have recently shared child pornography and creates an activity log of the files 

involved. 

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anti-forensic software,3 CCleaner & Eraser, installed. There were file paths 

with names indicative of child pornography that led to an “E-drive,” but 

examiners were unable to locate an “E-drive” in the unencrypted space of the 

computer. The examiners were also unable to find any user-accessible child 

pornography on the computer. However, the examiners found over 2,800 

images and four videos of child pornography in deleted thumbnail cache4 in a 

deleted zip file in an unallocated space of the computer. The file names in the 

unallocated space were not indicative of child pornography. 

B. Indictment & Superseding Indictment

Relevant here, the grand jury returned an indictment charging 

Waguespack with knowingly distributing child pornography on May 5, 2015

and June 13, 2015, and knowingly possessing child pornography on September 

24, 2015. In a probable cause affidavit to support the search warrant 

application, Ratcliff stated that at least one child pornography offense 

occurred on May 5, 2015. In fact, May 5, 2015, was the date that Ratcliff 

authored his investigation report and not the date that any of the offenses 

occurred. 

Subsequently, the Government obtained a Superseding Indictment. The 

Superseding Indictment mirrored the original indictment except the date of 

the May 5, 2015 offense was changed to between March 29, 2015 and March 

30, 2015. Waguespack pleaded not guilty to the counts in the Superseding 

Indictment. 

 

3 The Government’s expert testified that anti-forensic software is used to cover a 

computer user’s tracks. 

4 Cache files are files that a web browser automatically creates that may have been 

seen on the internet that are stored in hidden or inaccessible space. 

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C. Pre-Trial

Waguespack filed several pre-trial motions, including a motion for the 

production of the transcripts of the grand jury proceedings and a motion to 

suppress. The district court denied both motions. 

In the motion for production, Waguespack argued that the date 

discrepancy between March 29–30 and May 5 showed that Ratcliff possibly lied 

to the Grand Jury.5 He argued that the Government’s knowing use of false 

testimony entitled him to the transcripts. The district court denied the motion 

and found, inter alia, that Waguespack failed to show a particularized need for 

the transcripts. The court found that Waguespack failed to present evidence 

that Ratcliff was lying, and not simply making an error. The court further 

found that even if Ratcliff lied, the Superseding Indictment with the correct 

dates remedied any injustice. 

In the motion to suppress, Waguespack argued that the evidence 

obtained from the search should have been suppressed because the search 

warrant application contained a material misstatement, violating Franks v. 

Delaware, 438 U.S. 154 (1978), as May 5 was listed instead of March 29–30. 

He argued that no judge would have found probable cause without the 

misrepresented dates. After a hearing, the district court denied the motion 

and found that Waguespack failed to prove that Ratcliff made the statements 

“knowingly and intentionally, or with reckless disregard for the truth.” The 

Court also found that even if Ratcliff knowingly lied about the dates and the 

May 5, 2015 date was omitted, there was still sufficient information to support 

probable cause. 

 

5 March 29–30 is the date that Ratcliff provided to support the subpoena to Cox 

Communications. May 5 is the date that Ratcliff used in his affidavit of probable cause to 

support the search warrant and the date that was listed in the original indictment.

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D. Trial

On October 16, 2017, the jury trial began. Ratcliff was not a witness. 

The Government introduced Ratcliff’s download logs through Agent David 

Ferris, another investigator in the Louisiana Attorney General’s Office. Agent 

Ferris was qualified as an expert in the field of online exploitation 

investigations and peer-to-peer file sharing. Waguespack objected to the 

introduction of the exhibits related to Ratcliff’s reports. He claimed lack of 

foundation and inadmissible hearsay. The objections were overruled.

The Government also called Waguespack’s parents to testify. 

Waguespack’s parents testified as to their knowledge of computers. His 

mother testified that Waguespack’s father, Larry, “tinker[ed]” with computers, 

but that Waguespack did not, and “[Waguespack] wasn’t really into fixing 

other people’s computers or anything like that . . . .” She also testified that 

Waguespack is “knowledgeable [about computers] . . . he knows how to use 

them and he knows more than [she knows].” 

Waguespack’s father, Larry, testified that Waguespack was the only 

person that used the computer in Waguespack’s room. Larry also testified that 

he was knowledgeable of CCleaner as software “to get rid of . . . history folders, 

that kind of stuff and e-mail junk” and understood it as “something common . 

. . to clean [the computer] to keep it from getting viruses and stuff.” He learned 

about CCleaner from the internet and from Waguespack. He testified that he 

and Waguespack discussed CCleaner years ago because Larry was getting 

viruses on his computer. Larry also testified that he was knowledgeable 

enough about computers that he could build one from scratch. He had not 

heard of Eraser, had minimal knowledge of encryption, and had only heard of 

BitTorrent from the investigation. 

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After the Government rested, Waguespack moved for judgment of 

acquittal under Federal Rule of Criminal Procedure 29. The motion was

denied. 

The parties then presented their closing arguments. Waguespack’s 

counsel stated the following in his closing:

Ladies and Gentlemen, where is Louis Ratcliff? You heard from 

seven witnesses at this trial, and all but one testified about Louis 

Ratcliff. And the guy that didn’t was the Cox Communications guy 

. . . . Every single piece of evidence in this case, came from Louis 

Ratcliff. The Government has the burden of proof in this case and 

every case where they’re charging someone with a criminal offense, 

and they have to prove their case beyond all reasonable doubt, and 

yet the government did not call Louis Ratcliff as a witness.

* * *

This entire case, every single piece of evidence that you have to 

rely on was touched by Louis Ratcliff. Every single thing the 

government introduced to try to prove their case requires that you 

trust Louis Ratcliff, not just trust him, ladies and gentlemen, you 

have to trust him beyond a reasonable doubt because he’s the 

source of the case, but the government didn’t trust him enough to 

call him as a witness. They didn’t call Louis Ratcliff to tell us why 

his images say March 29th and 30th, but every report says May 

5th and his sworn affidavits say May 5th. They didn’t call Louis 

Ratcliff to tell you that if he received those images in March, why 

did he wait until May 13th to put them in the evidence locker?

* * *

Why [sic] are all of the videos and images that Mr. Ratcliff 

supposedly downloaded, why are none of them on [Waguespack]’s 

computer when they show up to do the search? Louis Ratcliff 

didn’t come and answer any of those questions because there’s no 

explanation. There is no answer for those questions.

The Government stated the following in its rebuttal: 

The only person that brought up Mr. Ratcliff here today was 

[Waguespack’s counsel]. What I would simply say to this point, 

that if [Waguespack’s counsel] thought that Louis Ratcliff was 

going to help his side of this case, he has the same subpoena power 

as the United States government to demand that witnesses be 

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here. And I’m sure if Mr. Ratcliff was going to be that helpful, 

[Waguespack’s counsel] would have had him in this courtroom 

talking to you, not just suggesting that it may have been 

something helpful.

The jury found Waguespack guilty of knowingly distributing and 

possessing child pornography, in violation of 18 U.S.C. §§ 2252A(a)(2) and 

2252A(a)(5)(B). The jury, responding to a special verdict form, also found that 

Waguespack possessed child pornography that involved prepubescent minors. 

E. Sentencing

The Presentence Investigation Report (“PSR”) recommended, inter alia,

a two-level obstruction of justice enhancement under U.S.S.G. § 3C1.1 because 

there was anti-forensic software installed on Waguespack’s computer. 

Waguespack objected to the enhancement and argued that the enhancement 

did not apply because he never took any action to delete or conceal evidence 

after he learned of the investigation. The district court overruled the objection.

The PSR calculated Waguespack’s offense level as 39, inclusive of the 

enhancement. Based on Waguespack’s offense level and criminal history

category of I, his Guidelines’ range was 262 to 327 months. The court granted 

Waguespack a downward variance and sentenced him below the Guidelines to 

180 months’ imprisonment on each count to run concurrently, followed by 10 

years of supervised release. 

Waguespack now timely appeals his conviction and sentence.

II. DISCUSSION

A. Waguespack’s Conviction Is Proper.

Waguespack appeals his conviction on four grounds. He argues that: (1) 

the Government failed to prove beyond a reasonable doubt that Waguespack 

“knowingly” distributed and possessed child pornography; (2) the Government 

violated Waguespack’s Sixth Amendment Confrontation Clause right by 

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failing to call Ratcliff as a witness; (3) the Government made improper 

comments in its rebuttal; and (4) the Government committed a Brady violation 

by failing to provide a copy of the grand jury transcripts to Waguespack. We 

perceive no reversible error.

1. There was sufficient evidence to convict Waguespack 

of knowingly distributing and possessing child 

pornography.

We review Waguespack’s claim that there was insufficient evidence to 

support the jury’s verdict de novo. United States v. Hoffman, 901 F.3d 523, 541 

(5th Cir. 2018), as revised (Aug. 28, 2018), cert. denied, No. 18-1049, 2019 WL 

536773 (U.S. May 20, 2019). “We weigh the evidence ‘in a light most 

deferential’ to the jury verdict and give the party that convinced the jury the 

benefit of all reasonable inferences.” Id. (quoting United States v. Lucio, 428 

F.3d 519, 522 (5th Cir. 2005)). 

“We must affirm the verdict unless no rational juror could have found 

guilt beyond a reasonable doubt.” Hoffman, 901 F.3d at 541 (quotation

omitted). However, “a verdict may not rest on mere suspicion, speculation, or 

conjecture, or on an overly attenuated piling of inference on inference.” United 

States v. Moreland, 665 F.3d 137, 149 (5th Cir. 2011) (quotation omitted). And, 

this court will not “credit inferences within the realm of possibility when those 

inferences are unreasonable.” Id. (quotation omitted). Accordingly, we will 

overturn a guilty verdict “where the government has done nothing more than 

pile inference upon inference to prove guilt.” Id. (quotation omitted). 

a. “Knowing” Distribution

Waguespack concedes that “[p]lacing content in a shared folder on a 

peer-to-peer program amounts to distribution.” However, he argues that there 

was insufficient evidence to prove that he had the requisite knowledge of the 

distribution because, inter alia,: (1) there was no evidence that the default 

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settings were modified to show he had knowledge of the automatic file-sharing 

of the software; and (2) there was no evidence that he was on his computer or 

at home on March 29–30 to show that he had knowledge that the files were 

being transferred. He further argues that the Government even failed to 

provide evidence that any distribution or file sharing occurred on the relevant 

dates. 

Under 18 U.S.C. § 2252A(a)(2), it is unlawful for a person to knowingly 

distribute child pornography in or affecting interstate or foreign commerce by 

any means. Downloading child pornography “from a peer-to-peer computer 

network and storing [it] in a shared folder accessible to other users on the 

network” is prohibited under the statute, but “the Government must prove 

beyond a reasonable doubt that the defendant engaged in such distribution 

‘knowingly.’” United States v. Romero-Medrano, 899 F.3d 356, 360 (5th Cir. 

2018) (citing United States v. Richardson, 713 F.3d 232, 234, 236 (5th Cir. 

2013)). 

Weighing the evidence in the light most deferential to the jury verdict 

and giving the Government the benefit of all reasonable inferences, there was 

sufficient evidence for a rational jury to find Waguespack guilty beyond a 

reasonable doubt of knowingly distributing child pornography. At trial, the 

Government presented evidence that:

• A peer-to-peer file sharing software was installed on the computer 

in Waguespack’s room. 

• Waguespack was the sole user of the computer in his room.

• The peer-to-peer file sharing software notified users when files 

were being uploaded or downloaded. 

• The software’s default settings for the shared folder on the seized 

computer were changed. 

• Waguespack had advanced technological proficiency. 

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• Agent Ratcliff downloaded child pornography using the peer-topeer file sharing software from an IP Address in Waguespack’s 

home.

• A user on the computer previously searched for, viewed, 

downloaded, and transferred child pornography using the file

sharing software, including transferring child pornography after

child pornography was distributed to Agent Ratcliff in March 2015. 

• The computer seized from Waguespack’s room contained over 2800 

images of child pornography.

Taken together, the evidence is probative of Waguespack’s knowledge

and is sufficient to demonstrate that Waguespack “knowingly” distributed 

child pornography. The evidence was sufficient to support a jury finding of 

guilt beyond a reasonable doubt.

Waguespack relies on extra-circuit precedent, United States v. Carroll, 

886 F.3d 1347 (11th Cir. 2018) to support his insufficiency argument. 

However, Carroll is distinguishable. 

In Carroll, the Eleventh Circuit reversed a distribution conviction after 

finding that the Government failed to prove that the defendant was aware that 

the contents of his shared folder automatically distributed to the peer-to-peer 

network. 886 F.3d at 1353–54. The defendant argued that the Government 

“failed to present any evidence that he knew he was sharing child pornography 

files when they were automatically placed in a shared folder, and that he [could 

not] be held liable for knowing distribution without some showing that he 

consciously allowed others to access those files.” Id. at 1353. The court agreed, 

finding that there was nothing in the record to indicate that the defendant was 

aware that the contents of his shared folder automatically distributed to the 

peer-to-peer network. Id. According to the court, “the government failed to 

put on any evidence that [the peer-to-peer network], by design, would have 

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required [the defendant] to authorize file sharing or in any way recognize that 

his downloaded files were being shared.” Id. at 1354. The court noted that the 

design of each network may bear on the issue of knowledge in different ways. 

Id. 

Most detrimental to Waguespack’s argument that he lacked the requisite 

knowledge is the evidence that, by design, the software notified the user that 

files were being shared with others and that he altered the default settings of 

the software. Both are indicia of knowledge. Waguespack fails to meet his 

burden that “no rational juror could have found guilt beyond a reasonable 

doubt.” Hoffman, 901 F.3d at 541 (quotation omitted).

b. “Knowing” Possession

Waguespack argues that the Government failed to prove beyond a 

reasonable doubt that he “knowingly” possessed child pornography on 

September 24, 2015, because the child pornography found on his computer was 

either cached files or deleted cached files. In addition, the child pornography 

files on his computer were located in an inaccessible portion of his hard drive. 

Under 18 U.S.C. § 2252A(a)(5)(B), it is unlawful for a person to 

knowingly possess child pornography in or affecting interstate or foreign 

commerce by any means. To obtain a conviction under the statute, the 

Government must prove, inter alia, that a defendant “knowingly” possessed 

child pornography. United States v. Terrell, 700 F.3d 755, 764 (5th Cir. 2012)

(per curiam). The possession may be actual or constructive. United States v. 

Smith, 739 F.3d 843, 846 (5th Cir. 2014). 

“When illegal files are recovered from shared computers, courts permit 

an inference of constructive possession where the files’ nature and location are 

such that [the] computer’s owner must be aware of them.” United States v. 

Smith, 739 F.3d 843, 847 (5th Cir. 2014). “Such an inference, however, must 

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be supported by evidence that ‘the defendant had knowledge of and access to’ 

the files.” Id. (quoting Moreland, 665 F.3d at 150).

Weighing the evidence in the light most deferential to the jury verdict 

and giving the Government the benefit of all reasonable inferences, there was 

sufficient evidence for a rational jury to find beyond a reasonable doubt that 

Waguespack knowingly possessed child pornography. The Government 

presented evidence that there were over 2800 child pornography images on the 

computer seized from Waguespack’s room, the person using the seized 

computer was well-educated in computer usage, Waguespack was the sole user 

of the computer, anti-forensic and encryption software were discovered on the 

computer, child pornography was transferred to Agent Ratcliff from an IP 

Address at Waguespack’s home, and path files with names indicative of child 

pornography were stored on the computer. Together, this evidence is probative 

of whether Waguespack had the requisite knowledge and ability to access the 

files and exercise dominion or control over them. Cf. Moreland, 665 F.3d at 

148. Accordingly, Waguespack fails to meet his burden that “no rational juror 

could have found guilt beyond a reasonable doubt.” Hoffman, 901 F.3d at 541 

(quotation omitted).

2. The district court did not clearly or obviously violate 

Waguespack’s Confrontation Clause rights. 

Waguespack argues that his rights under the Confrontation Clause were 

violated when the district court admitted child pornography images 

downloaded by Ratcliff and Ratcliff’s accompanying Torrential Downpour logs. 

According to Waguespack, the Government’s failure to call Ratcliff in its casein-chief violated his right to confront the witness against him. The 

Government argues that the images and logs are machine-generated and are 

not statements of a person. 

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The Confrontation Clause of the Sixth Amendment provides that “[i]n all 

criminal prosecutions, the accused shall enjoy the right . . . to be confronted 

with the witnesses against him.” U.S. Const. amend. VI. “The Confrontation 

Clause bars the admission of ‘testimonial statements of a witness who did not 

appear at trial unless he was unavailable to testify, and the defendant had [ ] 

a prior opportunity for cross-examination.’” United States v. Kizzee, 877 F.3d 

650, 656 (5th Cir. 2017) (quoting Crawford v. Washington, 541 U.S. 36, 53–54, 

(2004)). “[A] statement is testimonial if its primary purpose . . . is to establish 

or prove past events potentially relevant to later criminal prosecution.” Id. 

(quotation omitted).

Generally, this court reviews alleged Confrontation Clause violations de 

novo. United States v. Ayelotan, 917 F.3d 394, 400 (5th Cir. 2019), as revised

(Mar. 4, 2019). However, where, as here, the issue was not raised at trial, this 

court reviews the issue for plain error.6 United States v. Martinez-Rios, 595 

F.3d 581, 584 (5th Cir. 2010). “To prevail, [Waguespack] must demonstrate 

that[:] (1) the district court erred, (2) the error was plain, (3) the plain error 

affected his substantial rights, and (4) allowing the plain error to stand would 

‘seriously affect the fairness, integrity, or public reputation of judicial 

proceedings.’” United States v. Bree, 927 F.3d 856, 859 (5th Cir. 2019) (quoting 

Puckett v. United States, 556 U.S. 129, 135 (2009)).

Waguespack relies on Bullcoming v. New Mexico, 564 U.S. 647 (2011), to 

support his argument that his rights were violated. In Bullcoming, the 

 

6 Waguespack conceded in his reply brief that he failed to raise a Confrontation Clause 

objection at trial. However, at oral argument, Waguespack’s counsel “walk[ed] back” the 

concession and argued that the court should review the issue de novo because trial counsel 

preserved the issue. Oral Argument at 1:20–2:20. Counsel’s citation to the record does not 

support finding that trial counsel preserved the issue or that the “objection was specific 

enough to allow the trial court to take testimony, receive argument, or otherwise explore the 

issue raised.” United States v. Burton, 126 F.3d 666, 673 (5th Cir. 1997). Accordingly, we 

exercise plain error review.

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“question presented [was] whether the Confrontation Clause permits the 

prosecution to introduce a forensic laboratory report containing a testimonial 

certification—made for the purpose of proving a particular fact—through the 

in-court testimony of a scientist who did not sign the certification or perform 

or observe the test reported in the certification.” Id. at 652. The district court 

admitted a forensic report into evidence certifying a defendant’s blood alcohol 

level where the defendant had been charged with driving under the influence. 

The Government did not call the analyst who certified the report. Instead, the 

Government called another analyst who was familiar with the laboratory’s 

testing procedures. The Court held that “surrogate testimony of that order 

does not meet the constitutional requirement. The accused’s right is to be 

confronted with the analyst who made the certification, unless that analyst is 

unavailable at trial, and the accused had an opportunity, pretrial, to crossexamine that particular scientist.” Id. However, as Justice Sotomayor noted

in her concurrence:

[Bullcoming] is not a case in which the State introduced only 

machine-generated results, such as a printout from a gas 

chromatograph. The State [] introduced [the original analyst’s] 

statements, which included his transcription of a blood alcohol 

concentration, apparently copied from a gas chromatograph 

printout, along with other statements about the procedures used 

in handling the blood sample . . . Thus, [the Court did] not decide 

whether . . . a State could introduce (assuming an adequate chain 

of custody foundation) raw data generated by a machine in 

conjunction with the testimony of an expert witness.

564 U.S. at 673–74 (Sotomayor, J., concurring).

In United States v. Ballesteros, this court rejected the defendant’s 

argument that the district court clearly or obviously violated his right under 

the Confrontation Clause by admitting into evidence a report detailing his 

movements from GPS tracking. 751 F. App’x 579, 580 (5th Cir. 2019) (mem.), 

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cert. denied, (U.S. Jun. 10, 2019) (No. 18-9205). We concluded that because the 

defendant did not cite, and we had not found, “any decision by this court 

holding that the output of a computer program, such as a GPS report, amounts 

to a hearsay ‘statement’ under the Sixth Amendment,” the defendant failed to 

meet his burden. Id.

Similarly, here, Waguespack fails to meet his burden of establishing that 

the district court plainly erred in admitting the downloaded materials. 

Waguespack has not cited, and we have not found any case to support 

Waguespack’s position that the machine-generated materials are statements 

of a witness or trigger the Confrontation Clause. Accordingly, Waguespack’s 

argument fails. 

3. The Government’s rebuttal remarks were not 

improper.

Waguespack argues that the Government made improper comments 

during its rebuttal by referencing Ratcliff’s absence. Because Waguespack 

timely objected to this issue, we review for abuse of discretion. United States 

v. Stephens, 571 F.3d 401, 407 (5th Cir. 2009).

“Improper prosecutorial comments constitute reversible error only 

where the defendant’s right to a fair trial is substantially affected.” Id. at 407–

408 (quotation omitted). “This court applies a two-step inquiry in analyzing 

claims of prosecutorial misconduct:” (1) whether the Government made 

improper remarks; and (2) whether the improper remarks prejudiced the 

defendant. Id. at 408. 

“A prosecutor is prohibited from commenting directly or indirectly on a 

defendant’s failure to testify or produce evidence.” Romero-Medrano, 899 F.3d 

at 361 (quotation omitted). “A prosecutor’s . . . remarks constitute a comment 

on a defendant’s silence in violation of the Fifth Amendment if the manifest 

intent was to comment on a defendant’s silence, or if the character of the 

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remark was such that the jury would naturally and necessarily construe the 

remark to be a comment on a defendant’s silence.” Id. at 392 (quotation 

omitted). “[T]he comments complained of must be viewed within the context 

of the trial in which they are made.” Id. (quotation omitted).

In Stephens, we found that the Government’s comment that both sides 

could have subpoenaed a witness was a response to the defendant’s closing 

argument regarding a witness’s availability and was not an attempt to shift 

the burden of proof.7 571 F.3d at 408. We also found that even if the 

Government’s comment was improper, it was not sufficiently prejudicial to 

warrant reversal because the district court provided a curative instruction and 

there was ample evidence at trial. Id.

Here, viewed in context, the Government’s remarks were not improper. 

The jury would have understood the comments to be a response to the 

defendant’s closing argument and not an attempt to shift the burden of proof. 

And, even if the remarks were improper, the jury instructions relating to the 

 

7 The exchange during the closing argument in Stephens’ trial was as follows:

Defense counsel: The guns. I suggested to you yesterday that they could have 

been bought on-line. And who could they have been bought by? Daniel Lee 

Garrett. We don’t know much about him. We know very little about him. The 

Government could have brought him into court. The Government could have 

subpoenaed him. They could have found him. They could have brought you 

this missing witness. We know very little about him.

Government: I’m going to object, Your Honor.

The Court: What’s your objection?

Government: Both sides could have done that with subpoenas.

Defense counsel: Of course both sides could have done it. But the point is it’s 

the Government’s burden to prove its case, and Mr. Costa knows that.

The Court: Okay. Go on. Continue.

Id. at 407 n.8.

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Government’s burden were curative. See Stephens, 571 F.3d at 408. Further, 

Waguespack fails to demonstrate that the remarks were sufficiently 

prejudicial to warrant reversal because there was ample evidence at trial to 

support the jury’s verdict.

4. The Government did not violate Waguespack’s Brady 

rights by not disclosing the grand jury transcripts.

Waguespack argues that the district court erred in denying his motion 

to compel the production of the grand jury transcripts. Specifically, 

Waguespack argues that the date change from the first indictment to the 

superseding indictment triggered the Government’s Brady obligations, and he 

was entitled to receive a copy of the transcripts. According to Waguespack, 

“[the] witness statements used in obtaining an indictment for the wrong date 

should have been available to [him] to determine what other defects may have 

existed in the Government’s case.” 

“To establish a Brady violation, a defendant must show: (1) the evidence 

at issue was favorable to the accused, either because it was exculpatory or 

impeaching; (2) the evidence was suppressed by the prosecution; and (3) the 

evidence was material.” United States v. Cessa, 872 F.3d 267, 271 (5th Cir. 

2017) (quotation omitted). “Evidence is material if there is a reasonable 

probability that, had the evidence been disclosed to the defense, the result of 

the proceeding would have been different.” Id. (quotation omitted). “A 

reasonable probability of a different result is one in which the suppressed 

evidence undermines confidence in the outcome of the trial.” Id. (quotation

omitted).

Waguespack has not shown that the grand jury transcripts were 

material. He provides no support to demonstrate “a reasonable probability 

that, had the [transcripts] been disclosed to the defense, the result of the 

proceeding would have been different,” and that the nondisclosure of the grand 

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jury transcripts undermined confidence in the outcome of the trial. Cessa, 872 

F.3d at 271. He simply asks for them to determine “what other defects may 

have existed in the Government’s case.” Accordingly, Waguespack’s challenge 

as a Brady violation fails.

B. Waguespack’s Sentence Is Reasonable.

Waguespack appeals his sentence on two grounds. He argues that: (1) 

the district court improperly applied the obstruction of justice sentencing 

enhancement; and (2) his sentence is substantively unreasonable. We find no 

reversible error.

1. Waguespack’s sentence is procedurally reasonable. 

Waguespack argues that his sentence is procedurally unreasonable 

because the district court erroneously applied an obstruction of justice 

sentencing enhancement. 

A district court may apply a two-level sentencing enhancement under 

U.S.S.G. § 3C1.1 if: 

(1) the defendant willfully obstructed or impeded, or attempted to 

obstruct or impede, the administration of justice with respect to 

the investigation, prosecution, or sentencing of the instant offense 

of conviction, and (2) the obstructive conduct related to (A) the 

defendant’s offense of conviction and any relevant conduct; or (B) 

a closely related offense . . . .

U.S.S.G. § 3C1.1. “Obstructive conduct that occurred prior to the start of the 

investigation of the instant offense of conviction may be covered by this 

guideline if the conduct was purposefully calculated, and likely, to thwart the 

investigation or prosecution of the offense of conviction.” Id. at Cmt. 1.

“A finding of obstruction of justice is a factual finding that is reviewed 

for clear error.” United States v. Zamora-Salazar, 860 F.3d 826, 836 (5th Cir.), 

cert. denied, 138 S. Ct. 413 (2017). “A factual finding is not clearly erroneous 

if it is plausible in light of the record as a whole.” Id. (quotation omitted).

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The district court applied the obstruction of justice sentencing 

enhancement after finding that Waguespack’s conduct was “purposefully 

calculated and thwarted the investigation or prosecution of the offense of 

conviction.” The court found that, inter alia, the seized computer was actively 

searching for and downloading files with file names indicative of child 

pornography when law enforcement executed the search warrant, the 

computer’s deleted file space contained file paths and file names indicative of 

child pornography, anti-forensic and encryption software were installed on the 

computer, and the anti-forensic software had been programmed with a task 

list of file paths with names indicative of child pornography. 

Waguespack argues that the district court erred in applying the 

enhancement because “there was no evidence that [he] engaged in any conduct 

during the Government’s investigation of his activities or even that he was 

aware that an investigation was about to commence.” However, based on the 

plain language of the statutory commentary, the enhancement may be applied 

for conduct that occurred prior to an investigation if the conduct was 

“purposefully calculated, and likely, to thwart the investigation or prosecution 

of the offense of conviction,” see § 3C1.1, Cmt. 1, which the district court 

specifically found in Waguespack’s case. 

In light of the record as a whole and the plain language of the statutory

commentary, Waguespack fails to demonstrate that the district court clearly 

erred in applying the enhancement.

2. Waguespack’s sentence is substantively reasonable.

Waguespack argues that, despite his sentence falling below the 

Guidelines, his sentence is substantively unreasonable because the district 

court failed to account for 18 U.S.C. § 3553(a)(6)). 

We review the substantive reasonableness of a sentence under an abuseof-discretion standard. United States v. Halverson, 897 F.3d 645, 651 (5th Cir. 

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2018). However, “[a]ppellate review of the substantive reasonableness of a 

sentence is ‘highly deferential,’” and a within-Guidelines sentence is entitled 

to the presumption of reasonableness. Hoffman, 901 F.3d at 554–55. The 

presumption is rebutted “only if the appellant demonstrates that the sentence 

does not account for a [18 U.S.C. § 3553(a)] factor that should receive 

significant weight, gives significant weight to an irrelevant or improper factor, 

or represents a clear error of judgment in balancing the sentencing factors.” 

United States v. Martinez, 921 F.3d 452, 483 (5th Cir. 2019) (quotation 

omitted). 

Section 3553(a)(6) requires courts to consider “the need to avoid 

unwarranted sentence disparities among defendants with similar records who 

have been found guilty of similar conduct.” “[W]here a sentence is within the 

guidelines range, the unwarranted-disparity factor is not afforded significant 

weight.” United States v. Martinez, 739 F. App’x 245, 247 (5th Cir. 2018) 

(mem.) (citing United States v. Diaz, 637 F.3d 592, 604 (5th Cir. 2011)).

Because Waguespack’s sentence was below the Guidelines, his sentence 

is entitled to the presumption of reasonableness. His attempt to rebut the 

presumption by arguing that the district court failed to account for § 3553(a)(6) 

is unavailing because the unwarranted-disparity factor is not afforded 

significant weight in his case. Even if it was, he fails to offer evidence that his 

sentence represents an unwarranted disparity with similarly situated 

defendants. See Martinez, 739 F. App’x at 246–47. Waguespack includes 

statistics of sentences for child pornography offenses, but “[n]ational averages 

of sentences that provide no details underlying the sentences are unreliable to 

determine unwarranted disparity because they do not reflect the 

enhancements or adjustments for the aggravating or mitigating factors that 

distinguish individual cases.” United States v. Willingham, 497 F.3d 541, 544 

(5th Cir. 2007). The statistics that Waguespack provides “disregard individual 

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circumstances and only reflect a broad grouping of sentences imposed on a 

broad grouping of criminal defendants; consequently, they are basically 

meaningless in considering whether a disparity with respect to a particular 

defendant is warranted or unwarranted.” Id. at 544–45.

The district court stated that it considered all the factors in fashioning 

Waguespack’s sentence. Of note, the district court seemed to give significant 

weight to the victim impact statements and Waguespack’s offense being a 

serious offense which affected many people. 

The district court did not abuse its discretion in sentencing Waguespack.

III. CONCLUSION

For the foregoing reasons, the district court’s judgment is AFFIRMED.

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