PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_______________ No s

. 18

- 1079 & 18

- 1097

_______________ UNITED STATES OF AMERICA

v. MARQUIS WILSON, Appellant in No. 18

- 1079

_______________ UNITED STATES OF AMERICA

v.
MALCOLM MOORE, Appellant in No. 18

- 1097

_______________ On Appeal s from the United States District Court for the Eastern District of Pennsylvania (D.C. No s

. 2:14

- cr

- 00209

- 001 & 2:14

- cr

- 00209

- 002 ) District Judge: Honorable Mark A. Kearney

_______________2 Submitted Under Third Circuit L.A.R. 34.1 (a)

o n April 28, 2020

Before: HARDIMAN, GREENAWAY, JR., and BIBAS, Circuit Judges
(Filed: May 22, 2020 )

__ _____________

Alison Brill Office of the Federal Public Defender 22 South Clinton Avenue Station Plaza #4, Fourth Floor Trenton, NJ 08609 Counsel for Appellant Marquis Wilson

Linda D. Hoffa Dilworth Paxson 1500 Market Street, Suite 3500E Philadelphia, PA 19102 Counsel for Appellant Malcolm Moore

William M. McSwain Robert A. Zauzmer Salvatore L. Astolfi Office of the United States Attorney 615 Chestnut Street, Suite 1250 Philadelphia, PA 19106 Counsel for Appellee3 _______________ OPINION OF THE COURT

_______________ BIBAS, Circuit Ju dge

. A jury convicted M arquis Wilson and Malcolm Moore of
two counts of armed bank robbery , conspiracy to rob banks, and two counts of using a firearm in the course of committing a crime of violence

. They raise a host of challenges to their convictions an d sentences. W e find no error and will affirm on all fronts. In doing so, we hold that the Sixth Amendment does
not categorically forbid stipulating to a crime’s jurisdictional element without the defendant’s consent or over the defendant’s objection

. Though contesting or conceding guilt is for criminal defendants to decide, their lawyers may decide whether to contest or concede a crime’s jurisdictional element.

I. B ACKGROUND

Wilson ’s and Moore’s convictions stem from two bank robberies in November 2013. On November 4, three men robbed a Wells Fargo branch in Bala Cynwyd, Pennsylvania. The men entered the bank with what looked like a semiautomatic handgun and took roughly $81,000. A bank employee named Calia Kane later admitted to assisting the robbers

. The next morning, Wilson, Moore, and Martril Foster were pulled over while driving a rental car southbound on I

- 85 in North Carolina. After Wilson, the driver, said they were driving to Georgia and admitted that they had a lot of cash in the

car , the officer suspected that the men were going to buy drugs4 in Atlanta . He searched the car, found the stolen cash, seized it, and turned it over to federal drug agents. Afterward, the officer released the three men.

About a week later , three men showed up at a nother Wells Fargo branch in Phoenixville, Pennsylvania. But the bank was closed for Veterans Day, so the men tried again the next day. This time the bank was open, and the men got away with roughly $70,000.
The p olice later got a tip from Lester Howell, a man whom Wilson had tried to recruit for the heists , about the first bank robbery

. Howell gave the police a cell phone number of one of the robbers. T he police traced that number to Wilson and pulled his cell

- sit e location data , which put him at the scene of the Bala Cynwyd branch right before the first robbery. The data also showed five calls and seventeen text messages to and from Kane , the bank employee, that same day . And Howell identified Wilson and Moore fro m a video of th e robbery.Because of the similarities in the two robberies, police suspected that they involved the same perpetrators. Wilson, Moore, Foster, and Kane were charged for their roles in both

. Kane and Foster took plea bargains and cooperated w ith the police.

Wilson and Moore were tried jointly for two counts of bank robbery, co n spiracy, and two counts of using a firearm in furtherance of a crime of violence. At trial, Wilson conceded that he had been one of the robbers and instead challeng ed w hether the gun used was real. Moore maintained his innocence. Both

men were convicted on all counts. The District Court sentenced5 Moore to 385 months ’ imprisonment , one month more than the mandatory

- minimum sentence for his gun charges. Wilson received 519 months, the top of his Sentencing Guidelines range. Both men now appeal

. The District Court had jurisdiction under 18 U.S.C. § 3231 , and we have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.

II. C OUNSEL ’ S S TIPUL A TI O N T HAT T HE B ANKS W ERE

F EDERALLY I NSURED D ID N OT V IOLATE THE S IXTH A MENDMENT

We start with the Sixth Amendment claim, as it is one of first impression in our Circuit

. Wilson argues that his counselviolated his right to put on the defense of his choice by stipulating t hat both Wells Fargo branches were federally insured. If a defendant robs a federally insured bank
, th at insurance gives prosecutors a jurisdictional hook to charge him with federal bank robber y under 18 U.S.C. § 2113(a) and (f)

. So counsel’s stipulation to this fact satisfied the jurisdictional element of federal bank robbery. Wilson says the stipulation was therefore “ tantamount to a guilty plea.” Wilson Br. 37. Moore phrases the same argument differently, objecting that he was never advised of
, and never consented to
, his counsel’s stipulation. We disagree. We hold that a defendant need not consent to a jurisdictional stipulation. Even if a lawyer stipulat es to a crime’s jurisdictional element without getting his client’s consent or over his client’s objection , that stipulation does not per se violate a criminal defendant’s Sixth Amendment right to counsel.6 A. Criminal defendants have the right to dictate the objectives of their defense and to mak e fundamental decisions
When a criminal defendant challenges his counsel’s tactical choices, we usually analyze that challenge under the two

- prong test of Strickland v. Washington
, 466 U.S. 668, 68 7 (1984) . But when a defendant is deprived of counsel entirely, the error is structural and the defendant gets a new trial. See Gideon v. Wainwright , 372 U.S. 335, 340

– 42 (1963)

. Likewise, when a defendant insists on representing himself, denying his right to do so is structural. McKaskle v. Wiggi ns , 465 U.S. 168, 177

– 78 & n.8 (1984) . So too is denying a defendant the right to retain counsel of his choice. United States v. Gonzalez

- Lopez
, 54 8 U.S. 140, 150 (2006)

. Thus, “[t]he Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense.” Faretta v. California , 422 U.S. 806, 819 (1975)

.The Sixth Amendment respects a defendant’s right to counsel and right to autonomy by dividing ultimate decisionmaking author ity between lawyer and defendant

. Lawyers control tactics , while defendants get to set big

- picture objectives . For tactical decisions, like which arguments to press and what objections to raise, the lawyer calls the shots. See Gonzalez v. United States , 55 3 U.S. 242, 248

– 49 (2008) (citing New York v. Hill
, 528 U.S. 110, 114

– 15 (2000)) . But fundamental decisions belong to the defendant alone: whether to plead guilty, waive a jury trial , testify, or appeal. Jones v. Barnes , 463 U.S. 745, 751 (1983).7 R ecent ly
, in McCoy v. Louisiana , the Supreme Court clarified the line between tactical and fundamental decisions

. See 138 S. Ct. 1500 , 1507

– 08 (2018). On the one hand, “strategic choices about how best to achieve a client’s objectives” are decisions for law yers, so we review them for ineffectiven e ss. Id. at 1508. On the other hand, “choices about what the client’s objectives in fact are ” belong to defendants themselves , and violating a defendant’s right to make those choice s is structural

error. Id.

In McCoy
, the defendant was charged with murdering threerelatives of his estranged wife and faced a possible death sentence. 138 S. Ct. at 1505

– 06. His counsel wanted to concede guilt and argue for mercy at sentencing. Id. at 1506 & n.2. But the defendant insiste d on contesting guilt; he demanded that counsel instead advance a conspiracy theory that he was being framed by crooked state and federal officials

. See id. at 1513(Alito, J., dissenting). Counsel ignored that demand and conceded before the jury that McCo y had killed the victims. Id. at 1506

– 07 (majority opinion). The Supreme Court vacated McCoy’s convictions. The Sixth Amendment , it held, guarantees defendants the “[a]utonomy to decide that the objective of the defense is to assert innocence.” 138 S. Ct. at 1508. Violation of that right is structural error. Id. at 1511. The Court observed that a defendant “may wish to avoid, above all else, the opprobrium that com e s with admitting he killed family members.” Id. at 1508. So “[w]hen a client expressly as serts that the objective of ‘ his defence’ is to maintain innocence of the charged criminal acts, his lawyer must abide by that objective and may not override8 it by conceding guilt.” Id. at 1509 (quoting U.S. Const. amend. VI). Yet the Court did not explain what kinds of concessions
count as “conceding guilt.” That is the issue here.

B. Whether to contest a crime’s jurisdictional element is not a fundamental decision reserved for the defendant
Wilson argues that under McCoy , his counsel’s stipulation to the jur isdictional element violated his Sixth Amendment rights

. But this case is different from McCoy

. For one
, counsel did not override h is client ’ s expressed wishes. T here is no evidence that either defendant objected to the stipulation or demanded that counsel not concede this element of the crime

. Appellants argue only that counsel should have consulted with them or that the District Court should have advised them about it. True, the stipulation was in some sense contrary to Wilson’s asserted “objective .

. . to contest the charges against him” generally, and to Moore’s decision to challenge his guilt “in all respects

. ” Wilson Br. 37 ; Moore Br. 39 . But neither can show that he “expressly assert[ed]
, ” and that counsel ignored, a specific demand to fight the jurisdictional element. McCoy
, 138 S. Ct. at 1509.

E ven if appellants had instructed counsel to fight the jurisdictional element
, two more basic fact or s would distinguish McCoy

. First, t hat case was about conceding factual guilt: McCoy claimed that he had not kill ed the victims. While maintaining one’s innocence or trying to minimize punishment is afundamental objective of the defense, litigating the jurisdictional element is but a techn ical, tactical means to achieve that9 objective. Second, j urisdiction al elements trigger no “opprobrium” or stigma. McCoy , 138 S. Ct. at 1508

. In fact, t hey typically ha ve nothing to do with the defendant. W hether the Wells Fargo branches were federal ly ins ured is quite separate from Wilson ’s or Moore’s conduct, mental state s , or involvement in the robberies

. So conceding the jurisdictional element cast no stigma upon them.
In sum, whether to c ontest or concede a jurisdictional element is a tactical decision reserved for counsel , not defendants

. This is why McCoy distinguished counsel’ s concession of factual guilt from a “strategic ” decision “ to concede an element of a charged offense

. ” 138 S. Ct. at 1510. Here, counsel made the latter choice. And by conceding jurisdiction , counsel has not“entirely fail[ed] to subject the prosecution’s case to meaningful adversarial testing.” United States v. Cronic , 466 U.S. 648, 659 (1984). Of course, counsel always retai ns the ethical responsibility to consult with the defendant about how to achieve the defendant’s goals. See, e.g.
, Model Rules of Prof’l Conduct r. 1.4(a)(2). But failure to consult with the defendant on the stipulation or to heed his instruction to contes t a jurisdictional element , while perhaps ethically worrisome, is not structural

error

. We express no view about whether counsel’s decision here met Strickland ’s two

- part test for effective assistance of counsel.10 III. T HE F OURTH A MENDMENT C LAIMS F AIL Next, we turn to a pair of suppression claims
, b oth of which fail

. A. The traffic stop did not violate the Fourth Amendment

Wilson and Moore sought to suppress the evidence seized from their rental car in North Carolina. Moore argue s that the initial stop was improper . And both claim that the police officer impermissibly extended the stop before he found the evidence. T he District Court deni ed their motions to suppress. We agree and will affirm that ruling.We review the District Court’s factual findings for clear error and its application of law to those facts de novo

. United States v. Mosley , 454 F.3d 249, 252 (3d Cir. 2006). Our review of the facts is aided by the dashcam video from Officer JoshuaFreeman’s patrol car, which is in the record and lasts the duration of the traffic stop.

1. The re was reasonable suspicion to support the traffic stop

. Moore first argues that any evidence fr om the traffic stop should have been suppressed because the stop was pretextual and not supported by probable cause. But traffic stops require only reasonable suspicion, not probable cause. United States v. Lewis , 672 F.3d 232, 237 (3d Cir. 2012). And pret ext is irrelevant : “[T]he Supreme Court [has] established a bright

- line rule that any technical violation of a traffic code legitimizes a stop, even if the stop is merely pretext for an investigation of some other crime.” Mosley , 454 F.3d at 252 (citing Wh ren v. United States , 517 U.S. 806 (1996)).11 Officer Freeman had reasonable suspicion that the driver had broken traffic laws. He testified at the suppression hearing that he saw the car speeding, changing lanes without signaling, and tailgating the car in front of it. The District Court credited this testimony. And we can see the tailgating violation for ourselves on the video. All of these violate North Carolina traffic law. See N.C. Gen. Stat. §§ 20

- 141(a)

– (b), (d); 20

- 152(a), 20

- 154(a), (b). So there was reasonable suspicion to justify the stop.

2. Officer Freeman did not impermissibly prolong the stop

.A traffic stop may last as long as needed to “to address the traffic violation that warranted the stop and attend to related safety concerns.” Un ited States v. Clark , 902 F.3d 404, 409

– 10 (3d Cir. 2018) (quoting Rodriguez v. United States , 135 S. Ct. 1609, 1614 (2015) )

. B eyond that point, the officer must have reasonable suspicion to prolong the stop and investigate further

. Id. at 410. Here, the o fficer did.
Within minutes, Officer Freeman learned suspicious facts that gave him cause to investigate further

. When he first pulled the car over and asked Wilson for his license and registration, Wilson explained that it was a rental car. Freeman asked W ilson to get out of the car. While Wilson was exiting, Freeman peered through the hatchback into the trunk area and noticed that there was no luggage.

The rest of Officer Freeman and Wilson’s conversation took place in the front of Freeman’s cruiser. Free man explained the traffic violations that he had witnessed. Wilson then volunteered that he was driving from Philadelphia to Georgia for his uncle’s funeral, that he was tired, and that he12 planned to stay for a week. During this exchange, Freeman kept communicating with dispatch while checking Wilson’s license and the rental

- car informati on. He learned that Wilson’s name was not on the rental agreement and that the day before, the car had been rented for one month. This all happened within about four minutes.
Officer Freeman then went to talk with Moore and Foster, who were still in the re ntal car. They said they had been traveling all night to Atlanta to see their brother and that they planned to stay for a week, but said nothing about a funeral. When Freeman asked why they had no luggage, they answered that they would just buy what they n eeded in Georgia. Freeman asked Wilson the same question and got the same answer. Wilson also admitted that he had a juvenile drug arrest.
Next, Officer Freeman confronted Wilson with his suspicions that Wilson and his passengers were lying about the real reason for their trip. Freeman told Wilson that he did not buy his story about his uncle’s funeral . And he asked how much cash was in the car. Wilson hesitated before finally admitting that he thought there was roughly $20,000.
We can hit pause on the stor y right there. At this point, less than ten minutes had elapsed since Officer Freeman had pulled over Wilson’s car. As Freeman had not heard back from dispatch with information about Wilson and the rental car, the stop was still justified for traffic enfor cement. See Rodriguez
, 135 S. Ct. at 1614

– 15. By then, Freeman had learned more than enough to establish reasonable, articulable suspicion that the three men were trafficking drugs : They were driving through North Carolina in a rental car they had picked u p the day before13 in Philadelphia , but the person named in the rental agreement was not in the car. They said they were going to Georgia for a week, but the car was rented for a month and they had no luggage

. They gave conflicting stories about their trip’s purpose

. A nd Wilson confessed to having a lot of cash in the car. Especially given Freeman’s extensive experience interdicting drugs , his suspicion was objectively reasonable. See United States v. Arvizu , 534 U.S. 266, 273

– 74 (2002). Th us, by the time Freeman extended the stop to investigate other crimes
, hehad more than enough evidence “to establish reasonable suspicion that [the passengers] w[ere] involved in drug trafficking. ” United States v. Green , 897 F.3d 173, 179 (3d Cir. 2018) (citing Rodriguez
, 135 S. Ct. at 1615 )

. 3. Wilson and Moore forfeited the argument that Wilson’s consent was invalid

. After Officer Freeman gave Wilson a written warning
, Wilson consented to a search of the rental car

. Only then did Freeman discover the s tolen cash. In the District Court , Wilson and Moore challenged the voluntariness of that consent, but the c ourt found that it was voluntary. On appeal, Wilson and Moore allude to this issue in passing but do not press it. Thus, they have forfeited this issue . So we need not decide whether Wilson’s consent was valid. See, e.g.
, Sikirica v. Wettach ( In re Wettach ) , 811 F.3d 99, 115 (3d Cir. 2016) (appellants forfeited an argument by “fail[ing] to develop” it before the court of appeals)

. B. Use of the cell

- si te location data was proper under the good

- faith exception

Wilson and Moore also argue that , at trial, the G overnment improperly introduced cell

- site location information about14 Wilson’s cell phone. In 2014, the Government got a court order compelling produ ction of that data under a statute that did not require a search warrant. See 18 U.S.C. § 2703(d)

. At the time, our precedent approved of this practice, permitting cell

- site orders without probable cause

. See In re Application of the U.S. for an Order Directing a Provider of Elec. Commc’n Serv. t o Disclose Records to the Gov’t , 620 F.3d 304, 313 (3d Cir. 2010). Years later, the Supreme Court abrogated that precedent, holding that these cell

- site searches re quire a warrant supported by probable cause. Carpenter v. United States , 138 S. Ct. 2206, 2217

– 2 1 (2018). So Wilson and Moore argue that Wilson’s cell

- site location information should have been suppressed

. Not so . After Wilson and Moore filed their briefs, we held that cell

- site location information gathered under § 2703(d) before Carpenter is protected by the good

- faith exception to the exclusionary rule. United States v. Goldstein , 914 F.3d 200, 204 (3d Cir. 2019). Relying on a § 2703(d) order was objectively reasonable at the time. Id. And t here is no claim that the G overnment violated the procedures required by § 2703(d). Id. So the evidence was admissible.

IV. T HE D ISTRICT C OURT D ID N OT E RR IN I TS D ISCRETIONARY T RIAL
- M ANAGEMENT D ECISIONS Next, Moore challenges the District Court’s failure to sever the two codefendants’ joint trial as well as its failure to grant a mistrial after a witness mentioned that Wilson and Moore had a history of drug dealing . These discretionary decisions were both proper.15 A. The District Court did not commit plain error by failing to sever the trial

In a move that Moore calls “[u]nexpected [ ]” and a “surprise,” Wilson’s counsel conceded at trial that Wilson had in fact robbed both banks. Moore Br. 48

– 49 . By c ontrast, Moore’s trial strategy was to deny any involvement. Wilson’sconcession undermined that strategy by bolstering the testimony of cooperators whom Moore needed to discredit. So Moore argues that the District Court should have severed the two defenda nts’ trials right then and there. Moore’s burden is extremely heavy. Because he did not ask for a severance at the time , we review the District Court’s failure to do so sua sponte for plain error. United States v. Hart
, 273 F.3d 363, 369

– 70 (3d Cir. 2001) . And plain

- error review or not, “[i]t is not enough to show that severance would have increased the defendant’s chances of acquittal.” United States v. McGlory , 968 F.2d 309, 340 (3d Cir. 1992). A defendant must always “pinpoint ‘clear and substantial pre judice’ ” arising from the failure to sever and “resulting in an unfair trial.” Id. (quoting United States v. Eufrasio , 935 F. 2 d 553, 568 (3d Cir. 1991)).
Moore cannot carry t his burden. The risk of prejudice here was weaker than in a case in which codefendants present mutually antagonistic defenses: Wilson conceded his own involvement, but the jury could still have found insufficient evidence that Moore was involved with him. And s everanc e is strong medicine. Even in a case of antagonistic defenses, severance is not automatically required

. See Zafiro v. United16 States , 506 U.S. 534, 538 (1993). Instead, we “ leave [ ] the tailoring of the relief to be granted, if any, to the district court’s

s ound discretion.” Id. at 53 8

– 3 9.

The District Court exercised that discretion here . It reminded the jury that counsel’s statements were not evidence and that the jury would have to decide each defendant’s guilt individually. “We presume that the jury foll ows such instructions, and regard such instructions as persuasive evidence that refusals to sever did not prejudice the defendant.” United States v. Bornman , 559 F.3d 150, 156 (3d Cir. 2009) (quoting United States v. Urban , 404 F.3d 754, 77 6 (3d Cir. 2005) ). That presumption is a strong one, and Moore points to n othing special here to overcome it

. B. The District Court did not abuse its discretion by denying a mistrial after a witness mentioned Wilson and Moore’s drug dealing

Moore also argues that the Distric t Court should have granted a mistrial after a witness unexpectedly mentioned his history of drug dealing. According to the prosecution, it had warned Foster , one of the cooperating coconspirators, not to mention Wilson and Moore’s history of dealing drugs . Yet when asked how he knew Wilson and Moore , Foster testified that “we used to sell drugs together.” Wilson App. 1218. The defense immediately moved for a mistrial, which the District Court denied. We review that denial for abuse of discretion. United States v. Bailey , 840 F.3d 99, 131 n.153 (3d Cir. 2016)

.Witnesses often let slip improper evidence. Usually, the solution is a curative instruction telling the jury to disregard what17 it should not have heard. We presume th at the jury will follow this instruction , unless we see an “ ‘ overwhelming probability ’ ” that it will not and “a strong likelihood” that the improper evidence “ would be ‘devastating’ to the defendant.” United States v. Gonzalez , 905 F.3d 165, 198 (3d Cir. 2018) (quoting United States v. Newby , 11 F.3d 1143, 1147 (3d Cir. 1993)).
Here, t he District Court gave a curative instruction promptly. It told the jury to “[d]isregard the comment about selling drugs,” clarified that the trial was about bank robberies and guns rather than drugs, and warned the jury that “we’re not going to either determine or be distracted by anything else.” Wilson App. 1218

– 19. The court also clarified that Foster’s statement “has no evidentiary value.” Wilson App. 1219.

Nor is this th e sort of inadvertent slip that would irrevocably taint the jury. Foster said nothing about robbing banks or using guns. Drug dealing is unrelated to bank robbing and has only an indirect connection to gun toting. Given the immediate and clear curative ins truction , this isolated comment would not have been “devastating.” Gonzalez , 905 F.3d at 198 ( quoting Newby , 11 F.3d at 1147 ) . So the District Court did not abuse its discretion by denying a mistrial.

V. T HE G OVERNMENT D ID N OT M AKE I MPROPER S TATEMENTS AT T RIAL

Moore also challenges three of the prosecutor’s statements in his closing argument. These challenges fail too.
Moore argues that in the prosecut or ’s closing arguments, he vouched for the prosecution’s o wn credibility and the credibility of its witnesses. To show improper vouch ing, the defendant18 must prove that the prosecutor did two things: f irst, that he “ assure [d] the jury that the testimony of a government witness is credible
, ” and second, that he exp licitly or implicitly “base[d] his assurance on either his claimed personal knowledge or other information not contained in the record.” United States v. Lore , 430 F.3d 190, 211 (3d Cir. 2005). A defendant must show that a comment refers, explicitly or imp licitly, to “ the prosecutor’s [ own ] personal knowledge ” or to “ other information not contained in the [trial] record

. ” United States v. Walker , 155 F.3d 180, 187 (3d Cir. 1998).

Three statements are at issue

. Because Moore objected to the first of these st atements, we review the District Court’s decision to allow that statement for abuse of discretion. United States v. Vitillo , 490 F.3d 314, 325 (3d Cir. 2007). But because he did not object to the other two statements, we review those for plain error. United States v. Harris , 471 F.3d 507, 512 (3d Cir. 2006). In context, none of the three challenged statements was improper.
First, the prosecutor argued that even though cooperators li ke Kane and Foster “have a motive to lie, .

. . [ w ] e take necessary precautions to ensure that if anybody’s going to get on that stand and testify, they better darn well be telling the truth.” Wilson App. 1441

– 42. The District Court overruled Wilson’s obje ction. The prosecution immediately clarified to the jury : “It’s the plea agreement that I’m referring to .

. . . They’re terms that [Kane and Foster are] bound by. The only way that they could help themselves here, ladies and gentlemen, is by telling the t ruth. That’s their only hope.” Wilson App. 1442.19 Kane’s and Foster’s plea agreements had been introduced into evidence. So in context, the prosecutor was not suggesting that he knew something the jury did not. He was arguing that the jury should conclude from the plea agreements that Kane and Foster had everything to lose and nothing to gain by lying. So the District Court did not abuse its discretion in letting the prosecutor make this argument

. See United States v. Saada
, 212 F.3d 210, 225

– 26 (3d Cir. 20 00)

. Soon after that, the prosecution added a second statement: “The defense would have you believe that [Kane and Foster are] not credible because they would come in here and lie just to try and get a reduced sentence. In order for you to believe that, la dies and gentlemen, you have to believe that we are a bunch of idiots. ” Wilson App. 1444

. That statement was unfortunate , but h e immediately continued : “ If you want to believethat, that’s up to you, but nothing that you’ve seen in this courtroom would lead you to that conclusion.” Id. Allowing that
statement was not error, let alone plain error. The prosecution was merely commenting on the weakness of the defense’s theory that Kane and Foster were lying. And t he prosecutor explicitly said it was up to the jury to decide who was telling the truth, based on what “you’ve seen in this courtroom.” Id. The same goes for the third statement, which the prosecutor made in rebuttal. He said he was “surprised to hear” the defense’s theory that “we’re somehow complicit in this plan to turn the tables on these two guys and have you find them guilty when they’re

— at least Moore, when he’s really not.” Wilson App. 1500. Af ter mentioning four agents who investigated the robbery and testified
, the prosecutor asked: “Do you think we20 all put blinders on and, when we saw the information provided by Kane and Foster when they first talked to police and .

. . there was no gun menti oned, ” that the prosecution “ wanted there to be a gun so bad that we got them to change their story and didn’t let them plead guilty until they told us it was a gun? Do you believe that for a minute, ladies and gentlemen? You have no reason to believe that .” Wilson App. 1500

– 01

. In context, the prosecutor was commenting on what the jurywould have to believe to accept the defense’s theory: that several G overnment witnesses were lying and that the G overnment had coerced Kane and Foster to lie about a gun. T he prosecution had the right to argue that the jury “ha[d] no reason to believe that” theory because, in its view, there was simply no evidence in the record to support the defense’s theory. Wilson App. 1501. So t he District Court’s decision to allow the se statements w as not error, let alone plain error.

VI. T HE E VIDENCE W AS S UFFICIENT TO S U STAIN THE C ONVICTIONS
Next, both Wilson and Moore challenge the sufficiency of the evidence that the bank branches were federal ly insured. Moore makes two additional arguments: H e challenges the evidence of his involvement in the conspiracy and the robberies. H e also challenges the evidence that the gun used in the robberies was real.

Our review is highly deferential. We cannot di sturb the jury’s factual findings if, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a21 reasonable doubt.” Jackson v. Virginia , 443 U.S. 307, 319 (1979). On this record, all three challenges fail.

A. The stipulation establish ed the jurisdictional element Appellants ’ first challenge is groundless . The G overnment introduced a certificate evidencing the federal insurance of

“ Wells Fargo Bank
, N

. A

. , ” the national parent company covering all the branches. Wilson App. 1651. And both defendants’ counsel stipulated that both branches were federally insured. A s tipulation can establish an element of a crime. See Old Chief v. United States , 519 U.S. 172, 186 (1997) (citing Fed. R. Evid. 801(d)(2)(A)). Appellants fall back on objecting that the stipulation was not in writing, that they were never advised on it by c ounsel or the District Court, and that they did not understand what was going on. But these objections say nothing about whether there was enough evidence

. There was. The most we can make of this argument is a rehash of the Sixth Amendment claim

. And as we explained above, whether to stipulate to a jurisdictional element is a tactical decision left to counsel’s professional judgment.

B. There was sufficient evidence that Moore was involve d in the crimes

Moore next challenges the sufficiency of the evidence that he took part in the robberies. He highlights the lack of physical evidence and the G overnment’s reliance on cooperators’ testimony. And he notes evidence that all three robbers were about the same height, while Wilson and Foster are six to nine inches22 taller than he is. He also claims that there was too little evidence that he was involved in planning the robberies to support the conspiracy charge.

But t here was plenty of evidence that Moore was involved in all the crimes : Kane testified that Moore took part in planning discussions before the robber ies . Kane and Foster both testified that Moore went into the banks carrying a gun. And both testified that Moore had helped pick the target of the second robbery. Moore argued to the jury that Kane and Foster were lying about his role in the robberies. But the jury could and did reject that argument. And if the jury believed Kane and Foster, it was justified in finding that Moore was part of the conspiracy. We likewise reject Moor e’s argument about the height of the robbers. While some evidence suggested that the robbers’ heights were similar, other witnesses reported that one robber was “short and stocky” and that the one who held the gun was “[m]edium

- size [d] .” Wilson App. 540

– 41 , 672

– 73. It is not our job to r e concile that conflicting eviden ce when reviewing a cold trial record. That was for the jury

. C. There was sufficient evidence of a real gun

Moore also challenges his conviction under 18 U.S.C. § 924(c) for using a gun during the bank robberies. He claims that the Government never proved that the gun was real, as opposed to a BB gun he owned and used as a prop in music videos . We disagree. Several eyewitnesses in the banks testified about the gun, including one who had lifelong experience with guns. The two23 cooperating witnesses corroborated this : Kane testified that Wilson and Moore called the gun “the .40

. ” Wilson App. 8 95

– 96. And Foster testified that before the robberies, Wilson showed him a loa ded “standard

- issue Glock.” Wilson App. 12 31

– 32. Based on a video of the robbery, one agent concurred that the gun was a Glock .40 caliber, the same gun that he carried on duty. Another agent agreed. This testimony was more than enough evidence for a ratio nal jury to find that the gun was real. See United States v. Beverly , 99 F.3d 570, 572

– 73 (3d Cir. 1996).

V I I. B ANK R OBBERY W AS P ROPERLY C HARGED AND I NSTRUCTED AS A “C RIME OF V IOLENCE ” U NDER 18 U.S.C. § 924( C )

Wilson and Moore were each convicted of two counts ofbrandishing a gun “during and in relation to” a “crime of violence” under 18 U.S.C. § 924(c)(1)(A)(ii). They argue that their crimes are not crimes of violence under that statute, and that the jury instructions on those counts we re improper. T he first objection is a nonstarter. W e have recently held that armed bank robbery is categorically a crime of violence under § 924(c)(3)’s elements clause. United States v. Johnson , 899 F.3d 191, 204 (3d Cir. 2018).

Wilson and Moore’s challen ge to the jury instruction likewise fails. They argue that the District Court should not have instructed the jury that conspiracy (or perhaps conspiracy to commit bank robbery) counts as a crime of violence. But even if that is right, it gets them nowhere. The District Court instructed the jury that either conspiracy or armed bank robbery would count as a predicate crime for a § 924(c) conviction, as24 long as the jury found that the defendant had used or carried the gun to further the crime. Wilson App. 1546

. And the jury convicted both defendants on both bank

- robbery counts. So theinstruction about conspiracy did not matter. Even if it was erroneous, any error was harmless. See United States v. Waller
, 654 F.3d 430, 434 (3d Cir. 2011).

VII I

. T HE S ENTENCES W ERE P ROPER Finally, both Wilson and Moore argue that they should get the benefit of the recent First Step Act, which would lower their mandatory

- minimum sentences. Wilson also argues that his prison sentence was substantively unreasonable. Neither argument succeeds

. A. The First Step Act’s change to § 924(c) is not retroactive to defendants sentenced before the Act was passed

Wilson and Moore argue that they should benefit from the First Step Act because their cases were still pending on direct appeal when it was enacted . Thus, they claim, their sentence had not really been “ imposed ” within the meaning of section 403(b) of the First Step Act. See First Step Act of 2018, Pub. L. No. 115

- 391, 132 Stat. 5194, 5222. But while this appeal was pending, we held that a defendant whom a district court had sentenced before the First Step Act was enacted could not retroactively claim the benefit of section 403(b). United States v. Hodge , 948 F.3d 160, 162

– 64 (3d Cir. 2020).

Wilson an d Moore also advance a new argument that we did not address in Hodge : that by titling section 403’s amendment a “[c]larification,” Congress was suggesting that it was25 simply conforming the text of § 924(c)(1)(C)(i) to what the statute was supposed to have meant all along. But whatever the merits of these arguments, as a later panel we are bound by Hodge ’s reading of section 403. See Reilly v. City of Harrisburg , 858 F.3d 173, 177 (3d Cir. 2017). So we must reject the First Step Act argument

. B. Wilson’s sentence was substantively reasonable

The District Court sentenced Wilson to 519 months’ imprisonment (43 years and three months) , at the top of his Sentencing Guidelines range. Wilson does not challenge the procedures the District Court followed, but claims that sentence was substantively unreasonable. He did ask for a lower sentence, right above the 32

- year mandatory minimum, so he has preserved th at claim. See Holguin

- Hernandez v. United States
, 140 S. Ct. 762, 766 (2020)

. We review the sentence for abuse of discretion. United States v. Azcona

- Polanco , 865 F.3d 148, 151 (3d Cir. 2017). That means “we will affirm it unless noreasonable sentencing court would have imposed the same sentence on that particular defendant for the reasons the district court provided.” United States v. Tomko , 562 F.3d 558, 568 (3d Cir. 2009) (en banc).

Wilson explains that even a 32

- year sentence would keephim in prison until he was in his fifties. He argues that imprisoning him longer serves no valid purpose and that w e should not defer to a Guidelines range where , as here, it is pegged to

a mandatory minim um . But the District Court considered the requisite statutory sentencing factors set forth in 18 U.S.C. § 3553(a). In particular, it focused on general and specific d eterrence and retribution, factoring in the crimes’ effect on the26 victims and Wilson’s recruiting of other participants. The Court did not defer blindly to the Guidelines ; indeed, it considered both upward and downward departures. In the end, it chose the top of the Guidelines range. That decision was reasonable.

* * * * * Criminal defendants have a Sixth Amendment right to choose the ultimate objectives of their defense . That includes the right to maintain their factual innocence
, even if their lawyers advise them to admit guilt

. But their lawyers call the shots on the tactics used to achieve those objectives. Defense lawyers may thus stipulate to the jurisdictional elements of crimes without their clients’ consent or over their cl ients’ ob j ection

. Because counsels’ stipulations did not violate the Sixth Amendment , and because Wilson ’s and Moore’s other arguments fail , w e will affirm their convictions a nd sentences.