### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 11-30525

UNITED STATES OF AMERICA, Plaintiff-Appellee
v. JERMAINE SURTAIN; CHARLES MOSS; DAVID SAMUELS, Defendants-Appellants

Appeals from the United States District Court for the Eastern District of Louisiana USDC No. 2:09-CR-123-4

Before KING, SOUTHWICK, and GRAVES, Circuit Judges. PER CURIAM: * Defendants-Appellants appeal their convictions and sentences on various counts relating to their involvement in three insurance fraud schemes. For the

reasons that follow, we VACATE David Samuels’s sentences o n Counts 12 and 13 of the superseding indictment, REMAND f o r r esentencing on one of those counts (at the government’s election), and AFFIRM in all other respects. U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D March 26, 2013 Ly l e W . Cayce Clerk

* Purs uant to 5 T H C I R C UI T RUL E 47. 5, the court has determ ined that this op inion s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances set f orth in 5 T H C IR C UI T RUL E 47. 5. 4. Case: 11-30525 Document: 00512187631 Page: 1 Date Filed: 03/26/2013No. 11-30525 I. FACTUAL AND PROCEDURAL BACKGROUND On December 4, 2009, the grand jury r eturned a superseding indictment against D e f

e n d ants-Appellants David Samuels, Charles Moss, and J ermaine Surtain, variously charging them and three other co-defendants with one count of conspiracy to commit mail and wire fraud under 18 U .S.C. § 371, three counts of mail fraud under 18 U .S.C. § 1341, seven counts of wire fraud u nder 18 U.S.C. § 1343, one count of use of fire to commit obstruction of justice and tw o counts of use of fire to commit mail fraud under 18 U.S.C. § 844(h)(1 ) , one count of making a false statement under 18 U.S.C. § 1001, and aiding and abetting under 18 U.S.C. § 2 as to the wire fraud, mail fraud, and use-of-fire counts. The charges

arose from separate insurance fraud schemes that c ulminated in arson, murder, and the destruction of a van used in the killing. At trial, cooperating co-defendant Damian Landry t estified that Samuels worked w i t h him at Volunteers of America, an elder care provider in New Orleans. When Landry and his wife fell b ehind o n mortgage payments for her house in 2002, Samuels advis e d L a n d ry to increase his insurance coverage on t h e house and b urn it down for the proceeds. Landry agreed, and Samuels s e t out t o find someone who would set fire to the house for a share of the insurance money. Samuels ultimately recruited M oss, an army buddy of his from Detroit. Landry testified that on the day the house burned down, he and Samuels reported to work, and Landry then left to get breakfast. Samuels and Moss met Landry l ater that morning and told him they would burn the ho use that day. Samuels gave L andry the keys to his green Chrysler van, and Landry gave Samuels the keys to a white 1991 Chevrolet with temporary tags. The car was unregistered, making it impossible to trace. At Sa m u el s ’ s direction, Landry went to a client’s house so that he would have an alibi. A neighbor testified that he was at home when he heard an e xplosion from

across the street. When h e got to the window, he saw Landry’s house burning.

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H e a l s o saw a man with a burned face and hair leave the house and en t e r a n older white car with temporary tags, which then s p e d away. L andry received a phone call from his p robation officer, who told him th a t h i s h o u s e was on fire. Before L andry could return home, Samuels called and told him t o c ome to Samuels’s house. When he arrived, Samuels and Moss entered Landry’s vehicle. Moss’s face was burned, and S amuels said they had to take Moss to the hospital. Landry refused, and S amuels instead h ad his brother Chris take Moss. Landry then returned home to find his house destroyed. He and Samuels later took the white Chevrolet to a wrecking yard to be demolished. Landry filed a f

ire insurance claim on the house, but did not mention the

arson to the insurance company. Because the insur a n c e payment he received

was not as large as he had anticipated, h e used it to p ay the mortgage c ompany and did n o t t e l l Samuels that he had obtained the money. After Samuels pressured him for the insurance proceeds several times (sometimes vi o l e n t l y), Landry gave Samuels $3,000 from his tax refund. Landry further testified that while the f ire insurance claim was pending in July 2003, he accompanied Samuels to in s urance agent Stefan James’s office. S a m u e l s and J ames (a cooperating co-defendant in this matter) discussed obtaining $100,000 to $150,000 of insurance coverage on the life of Treyor Winston August, Samuels’s cousin. To that e nd, S amuels unsuccessfully sought to convince Landry to pose as August. James testified that he knew S amuels through his wife, who also worked at Volunteers of America. J ames had s o ld life insurance policies t o Samuels and Samuels’s wife, and had socialized with Samuels on occasion. James d escribed Samuels as a braggart, and testified that Samuels once said h e would have his cousin killed for s tealing drugs from him. Several weeks after making this statement, Samuels came to James’s office with Landry.

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Even though J ames was awar e o f Samuels’s fraudulent and murderous intentions, he ultimately s old Samuels a “ d o uble-indemnity” life insurance
p olicy. This meant that although the p olicy’s face value was $75,000, it wo u l d pay o ut $150,000 if August’s death w e re accidental. S amu e l s s t r uctured the policy in this way because any policy with a f ace value of $100,000 or more would have prompted the underwriter to collect th e insured’s blood and urine, and ad m i nister a medical e xam. August surely would h ave become aware of the policy had he been asked for these things. The policy’s beneficiaries—Samuels and his mother, Teresa—were falsely listed as August’s brother and mother. Al though August was listed as the policy’s owner, Samuels signed August’s

name on the application, had his own a ddress listed on the policy to p r e v e nt August from discovering its existence, and also noted on the appli c a t i on that August should n ot be contacted at his workplace regarding the policy. Samuels

was involved in thr e e subsequent fraudulent policies: (1) He took out a second policy on August’s life for $25,000, the beneficiary being his sister, co-defendant Maria Samuels; (2) he p rovided information to allow James to obtain a $25,000 policy on August’s life; and (3) he obtained a $90,000 “k e y m an” policy on August’s life, the beneficiary being his company, S am’s R ealty and Maintenance. Samuels’s brother Chris, who had t aken Moss to the h ospital f ollowing the Landry house fire, testified that Samuels asked him to kill August for $ 20,000. Samuels showed him o ne of the fraudulent life insurance policies to demonstrate

a means of payment. C hris testified that h e was unwilling t o kill his cousin, but, wanting to stall Samuels and warn Au gu s t , s aid he w o uld do it. Chris told August of S a m u els’s plan and the insurance policy, and gave him a gun for protection. As he related at trial, however, h e felt that August did not t ake the threat seriously. Apparently b ecoming impatient that C hri s h a d not kill e d Au gu s t , Samuels

e v e ntually sought someone else for the task. According to phone record s ,
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Samuels placed two calls on April 24, 2004 to Surtain, who was his sister’s exboyfriend and the father of her child, and who had recently returned to New Orleans. Kelvin Marshall, who thre e y ears later would be apprehended with Surtain in a burglary, testified that between 9:00 and 10:00 PM on April 24th, Surtain called him to obtain nine-millimeter rounds for a pistol. Marshall went to a friend’s h o use on Cortez Street to retrieve the ammunition. He then gave it to Surtain, who was waiting o utside with hi s girlfriend. The girlfriend dropped Marshall o ff at a nearby bar; S urtain t e st-fired the pistol ou t the vehicle’s window along the way. The girlfriend dropped Surtain o ff on Canal Street near Warren Easton High School. August’s girlfriend testified that Samuels came to her house o n April 24th to ask f or August. Although August was not home the first time Samuels came by, S amuels returned a s e c ond time after he had come back from work. Samuels stayed for a while, then left. Around nightfall, Moss came to August’s home in Samuels’s green v an. Moss s poke with August, left, th en returned between 8:00 and 8:30 PM. He and August left between 9:00 and 9:3 0 PM , p urportedly to celebrate August’s birthday. Samuels attended a church service that night. Samuels later told a special agent of the Bureau of Alcohol, T o b a cco, Firearms and Explosives (ATF) that August had b een shot in “the v a n , ” ran away, s truggled with the shooter, and was sh o t once more. A trail of blood consistent with this version of events was found at the murder scene. An eyewitness testified that he and his wife w ere driving south on Bienville Street between 9:50 and 1 0:00 PM on April 24th. Shortly after they crossed Jefferson Davis Parkway, the witness saw a man bending over another man on the median, and noticed the man on the ground had a large a mount of blood on his shirt. As the witness drove away, the first man shot the other one in the head. An autopsy revealed that August had been shot six times, including once in the head. Police recovered spent nine-millimeter casings from the murder scene.

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Surtain’s girlfriend testified that Surtain called her l ater th at ni ght to pick him up because police were in the area. S h e picked him up about two blocks away from J efferson Davis Parkway, and dropped him o ff on Cortez Street. Marshall testified that Surtain r e t u rned to the house on Cortez Street that night. Surtain’s jeans were covered in blood. The next day, Surtain told Marshall and others that “he shot a dud e” w h o t h e n wrestled Surtain to the ground, causing him to drop the gun. S urtain said that he “slammed the dude,” retrieved the gun, and shot him again. James testified that Sa m u e l s told him he had cleaned out blood from the van with bleach or ammonia. At 10:53 PM on April 2 4th, Samuels called J ames, and s a i d , “Winston ha[s] been killed. He’s dea d

. Wh at do we need to do to get the claims process going?” To avoid suspicion, James advised Samuels to wait before f iling a claim. Samuels’s sister’s claim was f iled in June 2004, and his m other’s claim was filed in July 2004. The insurance companies d enied the claims due to misrepresentations o n the applications, and mailed refunds of the premiums to Samuels, his sister, and his mother. A N e w O r l e ans p olice investigator spoke with Moss and S amuels on the morning of April 26th, and explicitly to ld Moss not t o leave t own until the detective investigating August’s murder could int e rview him. Samuels’s girlfriend took Moss to the bus station later that d ay, where he b oarded a bus for Detroit. Although Moss initially told police that August was alive and walking
up the street the last time Moss h ad s een him, he later told ATF agents that he saw August lying in the fetal position after Moss exited a bar. A GEICO employee testified that on April 2 8, 2004, someone reque s t e d increased coverage on Samuels’s van. Samuels’s ex-wife and then-girlfriend, Yolanda Fleming, t estified that M o s s c alled her and Samuels’s h o me on the night of May 7, 2004, asking for S amuels. Samuels, who had j ust returned home,

s p o k e w i th Moss for about five minutes, then left the house. Samuels testifi e d

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that he h ad also spoken with Surtain that night, but said their conversation had been about drugs. Phone records showed that Samuels and Surtain c alled each other twenty-six times on May 7th, including shortly before midnight. Between 1:00 and 2:00 AM on May 8th, Samuels called Flemin g t o ask about his van, which w a s parked outside their house. Fleming said the van was okay, then went b ack to sleep. Phone records showed that S amuels called Surtain immediately after Fleming hung u p, and again nine minutes later. Fleming was l ater awoken by an explosion, and saw that t he van w as on fire. Secu r ity camera footage showed that two individuals carrying s omething approached the van that night a n d b r oke the passenger window. Shortly thereafter, the van ignited. A f ire inspector testified that th e a rsonists had probably poured a flammable liquid into the car and set fire to it. After Fleming alerted emergency services, she called Samuels to tell him what had h appened. He instructed h er to give the firemen and p olice a piece of
paper on which s h e had, at his direction, written times and dates when he had purportedly received threatening phone c alls. Fleming t estified that she had

never received any t h r e a t ening phone calls or been present when Samuels received one. S amuels later suggested to his friend, Tony Veal, that the arsonists destroyed the van b ecause they thought Samuels had killed August. Upon being questioned about the threats, Samuels was unable to relate any d e t a ils about their nature or content. The fire inspector who examined the van testified that it was abnormally parked in an area where it would not ca u s e S a m u e l s ’s house to catch fire, but

was s till in view of the security camera. Samuels stated that he had moved the

van between 2:00 and 3:00 PM on May 7th to wash it. The investigator noticed, h o w e v e r , that the closest water s pigot was on the c o rner of the house opposite the van. Samuels reported the fire t o his insurance compa n y o n M a y 8th. The insurance company issued a check to him for $4,094, which he later cashed.

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Three years after these events too k p l a c e , S urtain and Marshall were apprehended in a burglary. Acting o n in f o r mation provided by Marshall, the ATF initiated an investigation, during which ATF agents int erviewed Samuels about the life insurance policies he had obtained from James. Although he sought to appear cooperative and provided some information about the murder, Samuels told t h e agents, “I didn’t have any life insurance o n [August].” The agents knew this statement was false be c ause they had obtained insurance records showing that Samuels’s company had p aid the premiu m s . S amuels

warn e d J a mes that agents had interviewed him, and would likely seek to interview James as well. He w arned James n ot to “rat,” while at the same time making the motion of pulling a gun trigger. The government later indicted Samuels, Moss, Surtain, and three other co-defendants. While u n d e r i n dictment, Surtain spoke about his case to his cellmate in St. Bernard P arish Jail, Orlando Brown. He told Brown, inter alia , that his case involved arson and fraud; he was not worried about b eing convicted because he had disposed of the gun he had used t o commit his crime; h e had not been charged with murder; he had sent someone to pick u p the murder victim; he had “tussled with the guy and then h e shot him”; he was not w orried about his child’ s m o t her or h er brother testifying a gainst him because he knew at which jail the brother was being housed; his case involved insurance; his child’s mother and her b rother were beneficiaries, but he was not a main beneficiary; and “if everything w ent right,” he would be p aid for his p art in his crime. He also stated that “they had a policy to get this guy, he was s u p p o s ed to pick the guy up o n his birthday.” Insurance records e stablished that August was murdered the day before his twenty-seventh birthday. While he was incarcerated, Surtain made two r ecorded phone calls—one to Samuels’ s father and another to Samuels. Surtain asked Samuels’s father t o tell Samuels that he was “dummying up all th e way around,” and that it would be best if Samuels would

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also “dummy up.” In Surtain’s call to Samuels, they agreed not to cooperate with investigators. After an eight-day trial, the jury f ound Surtain and Moss guilty of conspiracy to commit mail and wire fraud, and use of fire to c ommit obstruction of justice in r elation to the van fire. Moss was also found guilty on o ne count of

use of fire to commit mail fraud in relation t o the house fire. Samuels was found guilty on all fifteen counts. Once again, these included one count of conspiracy to commit mail and wire fraud, three counts o f mail fraud, seven counts of wire fraud, one count of use of fire to commit obstruction of justice, two counts of use of fire to commit m ail fraud, one count o f making a false s tatement, and aiding and abetting. 18 U.S.C. §§ 2, 371, 844(h)(1), 1001, 1341, 1343. Moss and Surtain were respectively sentenced to 420 months’ and 180 months’ imprisonment. Samuels was sentenced to 9 0 0 months’ imprisonment. They timely appealed. II. DISCUSSION On appeal, Surtain argues that the evidence was not sufficient to convict him on Count 1 (conspiracy) and Count 12 (use of fire to c o mmit obstruction of justice). Moss also challenges his conviction on Count 1 2. Samuels raises a host of issues on appeal, including multiplicity, eviden t iary s ufficiency, i mproper testimony, failure to sever the defendants’ trial, prosecutorial misconduct, and procedural unreasonableness of his sentence. We address each issue in turn. A. Surtain’s Conspiracy Conviction 1. Legal Standards By moving for a judgment of acquittal immediately after the government rested, Surtain properly preserved his evidentiary s ufficiency argument. Fed. R. Crim. P. 2 9(a); U

nited States v. Frye , 489 F.3d 201, 207 ( 5th C ir. 2007). A challenge to the s ufficiency of evidence supportin g a c ri minal conviction is reviewed de novo. United States v. McDowell , 4 98 F.3d 308, 312 (5th Cir. 2007).

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“When reviewing t h e sufficiency of the evidence, this Court views all evidence, whether circumstantial or direct, in the light most favorable to the Government with all r e a s o n able inferences to be made in support of the jury’s verdict.” United States v. Moser , 123 F.3d 813, 8 19 (5th C ir. 1997). “[W]e consider whether ‘any rational trier of fact could have found the e ssential elements of the crime b eyond a reasonable doubt.’” United States v . Jara-Favela , 686 F.3d 289, 301 (5th Cir. 2012) (quoting Jackson v. V irginia , 443 U.S. 3 07, 319 (1979)). “The evidence need not exclude every r e a s o n ab l e hyp oth e s i s of innocence

or be c ompletely inconsistent with every conclusion except guilt, so l ong as a reasonable trier o f fact could f i n d t h a t the evidence e stablished guilt b eyond a reasonable doubt.” Moser , 123 F.3d at 819. A conspira c y c onviction under 1 8 U.S.C. § 371 requires proof beyond a reasonable doubt o f: “(1) an agreement b etween two or more p ersons to pursue

an unlawful objective; (2) the defendant’s knowledge of the unlawful objective and voluntary agreement to j oin the conspiracy; and (3) an over t a c t b y o n e or

more o f the members of the conspiracy in furtherance o f t h e o bj e ctive of the conspiracy.” United States v. Coleman , 609 F.3d 699, 704 (5th Cir. 2010). “A jury is free to infer t h e e xi s tence of a conspiracy from the presence, association, and concerted action of the defendant with others.” United States v. Curtis , 635 F.3d 704, 719 (5th Cir. 2011) (internal quotation marks and citation omitte d)

. Kno wl e d ge of th e c o nspiracy’s unlawful objective “may b e inferred from surrounding circumstances.” United States v. Grant , 683 F.3d 639, 643 (5th Cir. 2012) (internal quotation marks and citation omitted). 2. Discussion Su rtain’s evidentiary sufficiency challenge focuses o n the second conspiracy element. He argues the government failed t o establish that he knew August w as to be murdered in furtherance of an insurance fraud scheme. We disagree.

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Insurance agent James’s testimony e stablished the e xistence of a conspiracy to obtain life insurance proceeds by murdering Au gu s t. Samuels initially asked his brother Chris t o k i l l August. After Chris failed to do this, Samuels twice called Surtain on t h e day of August’s murder. Other t estimony established that, on the night of August’s murder, Surtain obtained ammunition f r o m M a rshall, was dropped off near the site of August’s murder, and late r returned to Marshall’s friend’s house w i t h blood covering his clothes. He later described the murder to Marshall. James testified th a t S a m u els c alled him shortly after August’s death to ask how to submit a life insurance claim. According t o Surtain’s c ellmate, Brown, S urtain said in jail that he would not be arrested for a murder he had committed because he was not the “main”

or “prime” beneficiary o f i n s u r ance policies on the m urder victim’s life. Significantly, Surtain told Brown that “they had a p olicy to get this guy.” He also said that if everything went w ell, he would still g e t paid. The jury could have inferred that Surtain w as promised money f or murdering August, and h ad been told that t he money would c ome from an insurance policy. This inference is strengthened by the f a c t that Samuels showed his brother the fraudulent i nsurance policy to induce him to kill August. The jury could h ave reaso n ab l y inferred that Samuels also would have presented the insurance policy to Surtain

as p roof of payment abili t y . Th e e vidence thus was sufficient t o establish that Surtain knew the c o n s p i r acy’s objective w as to commit insurance fraud. See Jackson , 443 U.S. at 319. Surtain attacks B rown’s testimony on two grounds. First, he incorrectly contends that the jury was not permitted to rely on Brown’s testimony because evidence of Surtain’s extra-judicial statements w a s unc orrob or at e d

. We c o nclude that “ s ub s t anti al independent evidence” justified reliance on B rown’s testimony. United States v . Sterling , 5 55 F.3d 452, 4 56 (5th Cir. 2009). He accurately related details o f the conspiracy that Surtai n h a d p rovided, and which

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corresponded with other evidence offered at trial. These included the nature of the charges against Surtain, d etails of the murder, and Surtain’s lack o f concern that his “baby mama and her brother” woul d t e s t ify against him. Accordingly, the jury c o uld j ustifiably rely on Brown’s testimony respecting Surtain’s jailhouse statements. See i d. (federal c ourts do n ot apply the traditional corpus delictidoctrine (citing Opper v. United States , 348 U.S. 84, 93 (1954))). Secon d , S u r t a i n s tates in his brief that Brown “agreed that Mr. Surtain had n o knowledge of the insurance fraud prior to the death o f Mr. August.” We

can find n o r ecord support for t h i s a s sertion. Surtain also c ontends that Marshall made the s a me representation. Although M arshall testified that Surtain h ad not mentioned anything t o him about an insurance scam, Marshall

never affirmatively stated that Surtain had n o knowledge of th e s c a m . Moreover, it is unclear how Marshall might have obtained such knowledge. B. Surtain’s and Moss’s Use-of-Fire Convictions 1. Legal Standards Because M oss and Surtain preserved their evidentiary sufficiency argument as to Count 12 (use of fire to c o mmit obstruction of justice and aiding and abetting), w e a p p ly de novo review, viewing all evidence in the light most favorable to the verdict. McDowell , 498 F.3d at 312; Moser , 123 F.3d at 819. We “must affirm if any reasonable construction of the evidence could establish the defendant’s guilt beyond a reasonable doubt.” United States v. Booker , 334 F.3d 406, 409 (5th Cir. 2003) (internal quotation marks and citation omitted). A conviction under 18 U.S.C. § 844(h)(1) f or use of fire to c ommit a felony requires sufficient proof that the defendant (1) used fire (2) to commit a felony that can be prosecuted in a court of the United States. United States v. Nguyen , 28 F.3d 477, 481 (5th Cir. 1994). A person commits obstruction o f justice when he “corruptly alters, destroys, mutilates, or conceals a record, document, or other

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object, or attempts to do s o, w i t h th e intent to i mpair the object’s integrity or availability for use in an official proceeding.” 18 U.S.C. § 1512(c)(1). The federal aiding and abetting statute provides that “[w]hoever c ommits

an offense against the United States or aids, abets, counsels, commands, induces

or procures its commission, is punishable as a principal.” 18 U.S.C. § 2. A conviction under this p rovision requires s ufficient proof that “the elements of the substantive of

f e n s e o c curre d an d that the defendant associated with the c riminal venture, purposefully participated in the criminal activity, and sought by his actions to make the venture succeed.” United States v. Garcia , 2 42 F.3d 5 93, 596 (5th Cir. 2001). 2. Discussion The government argues that Moss counseled Samuels to destroy the v an, which permitted M oss’s use-of-fire conviction on an aiding-and-abetting theory. 1 18 U.S.C. § 2. It relies on evidence showing that (1) Moss had a strong motive to destroy the murder evidence in the van; (2) Moss placed a f ive-minute phone call to Samuels approximately five-and-a-half hours before the van was b urned; and (3) Moss was returning a call that S a m uels had placed t o Moss’s “burner” cell phone, which h ad been u sed only in connection with c riminal activity. As we will discuss, the evidence was sufficient to convict Moss on Count 12. As outlined above, the trial evide n ce established that Moss had driven August to the murder site in t h e v an, and that Surtain had killed him. James testified that S a muels told him he had cleaned blood out of the van shortly after August’s murder. Because the blood c o u l d h av e linked all three defendants to

1 Although the dis trict court gave the jury a co- cons p irator l i ability ins truction, it s p ecif ically ins tructed the jury that the ins truction ap p lied only to C ounts 2 through 11. Accord ingly, w e w ill not cons id er co- cons p irator liability w ith res p ect to Count 12. See U ni ted S t a tes v. Cra i n , 33 F .3d 480, 486 n. 7 ( 5th Cir. 1994) (citing Pi nkerton v. Uni ted Sta t e s , 3 2 8 U

. S. 640, 645 ( 1946) )

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August’s murder and the related insurance fraud sch e m e , t h e jury could have inferred that they had an overwhelming motive to destroy this evidence. Viewed in t h e light most favorable to the verdict, the phone calls from Samuels’s phone show that he was urgently trying to contact Moss o n the night of the van fire. Moss h ad returned to Detroit on April 26, 2004. Samuels called Moss’s cell phone at 9:23 PM on May 7th, then checked his voicemail. H e called Moss’ s girlfriend four minutes later, and spoke with h e r for two minutes. Immediately after this call, S amuels call e d a hou s e n e ar D etroit. R ecords showed a call from Moss to his girlfriend at 9:30. Samuels called Surtain at 9:31. Moss called Samuels’s house at 9:33, just after Samuels had returned home. The two spoke f o r f ive m inutes, and Samuels left immediately after the call ended. Between Moss’s departure from New O rleans and that night, Samuels and Moss had called each other four times—three times on the night Moss left for Detroit (a o ne-minute call, and two c alls in quick succession several h ours later, lasting seven seconds and fifty-five seconds), and once on May 1st (one minute). The phone at which Samuels first tried to reach Moss is also significant. Phone r ecords showed that Surtain and Samu e l s t e nded to call this phone—a “burner” cell phone with an Indianapolis area code—only during periods when they were involved in criminal activity in which M o ss als o p articipated, including in the days leading up to August’s m urder. The defendants further highlighted this phone’s significance b y d e nying their knowledge of the phone

or its connection to Moss. Surtain told investigators that the p h one number was associated with a woman he had met at t h e New Orleans Convention Center. Although Moss’s ex-wife testified that Moss had used this phone to call her, he told investigators h e had no knowledge o f the phone number a ssociated with it. He went so far a s to deny having had any cell p hone in April 2 004, even though Samuels made calls to his phone at that time. Viewed in the light most favorable

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to the verdict, Samuels’s calling this phone indicated that he wished to discuss criminal activity with Moss. Moreover, th e jury could have reasonably inferred that M oss was Samuels’s go-to m an f

or a dvice about incendiary d evices. After all, Samuels had summoned him from Detroit to New Orleans t o burn down the Landry house. Tr ue, the f

act that M oss set his own hair on fire in that incident implies that Samuels’s co n f

idence in him might have been misplaced, but the point stands that Samuels knew Moss to have experience with setting things on fire. Although the j urors did not know and could not h ave known with certainty the content of the phone conversation, they hardly could have belie v e d that Samuels called Moss to discuss the weather. Samuels had not spoken with Moss in days, yet he suddenly and urgently sought t o contact M oss mere hours before the v an f

ire. Given the strong inference that they s poke about the van fire, and Moss’s overwhelming motive to destroy the murder evidence, the jury could have found beyond a reasonab l e d o ubt that Moss, at minimum, g ave words of encouragement t o Samuels in violation of the federal a i ding-and-abetting statute. See United States v . Gulley , 526 F.3d 809, 816 (5th Cir. 2008) (“An aider and abettor i s liable for criminal acts that are the ‘natural o r probable
consequence of the crime’ that he

. . . encouraged.” (citation omitted)); United States v. Bowen , 527 F.3d 1 065, 1078 (10th Cir. 2008) (“ E ven mere ‘words or gestures of e ncouragement’ constitute affirmative acts capable of r endering one liable under this theory.” (citation omitted)). Moss argues that (1) the j ury’s verdict “rest[ed] on mere suspicion, specul ation, or conjecture, or on an overly attenuated piling of inference on inference,” United States v. Rojas Alvarez , 45 1 F

. 3 d 320, 3 33 (5th Cir. 2006) (citation omitted); ( 2 ) h i s conviction must be reversed because there is no evidence of what he discussed with Samuels on M ay 7th; and (3) h e c o u l d n o t have ab etted Samuels’s offense because Samuels had already resolved t o destroy

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the van. See United States v . Powers , 168 F.3d 7 41, 7 4 6

– 47 ( 5th Cir. 1999); United States v. Galvan , 693 F .2d 417, 419–20 (5th Cir. 1982); Grimes v. United States , 379 F.2d 791, 795 (5th Cir. 1967). We disagree. “[W]hat t h e fact finder is permitted to infer from the evidence in a particular case is governed b y a rule o f reason, and

. . . fact finders may p roperly

use their common sense and evaluate the facts in light o f th e i r common knowledge of the natural t endencies and inclinations of human b eings.” United States v . Ayala , 887 F.2d 6 2, 67 (5 t h Cir. 1989) (internal quotation marks and citation omitted). “[C]ircumstances altogether inconclusive, if separ a tely considered, may, b y their number and jo i n t o p eration, especially when corroborated by moral coincidences, be s ufficient t o constitute conclusive proof.” Id. (quoting Coggeshall v. United States (The Slavers) , 6 9 U.S. (2 W all.) 383, 401 (1865)). Given Moss’s overwhelming motive to destroy the murder evidence, the jury could have reasonabl y inferred that Moss sought to embolden Samuels in this venture, even if only br i e f ly during their five-minute conversation. Samuels’s abruptly leaving his home after speaking with Moss—only minutes after having arrived th e r e

—f its the narrative of a man who has just obtained something he wanted or needed to accomplish his mission. Moreover, Moss’s reliance on Powers , Galvan , and Grimes is misplaced. In each of those c ases, we r eversed a conviction tha t w a s b a s ed primarily on evidence that a phone c all or phone calls had taken place. P o w e rs , 168 F.3d at 746–47; Galvan , 693 F.2d at 419–20; Grimes , 379 F.2d at 795. Moss argues that these c a ses stand f

or the proposition that “telephone records are not, standing alone, sufficient evidence to support a” conviction. United States v . Williams , 264 F.3d 561, 5 74 (5th Cir. 2001) (citing Powers , 168 F.3d at 7 46–47; Galvan , 693 F.2d at 419). The instant matter is distinguishab l e , h o wever, b ecause the government offered more than “telephone records

. . . standing alone.” There is strong circumstantial evidence of what M oss and Samuels di scussed, and the
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jury could h ave inferred from Moss’s overwhelming motive and Samue l s ’s behavior after their p hone call that Moss encouraged Samuels to destroy his van at some point during their not all too brief conversation. Finally, Moss argues that he could not have helped the van fire to succeed because Samuels had already decided to destroy the v an: Samuels h ad increased the van’s insurance c overage days before, a n d p a r k ed it away from the house earlier that day. We a gree that the evidence shows Samuels likely would have destroyed the van ev e n if he had not been able to contact Moss. Nonetheless, conviction on an aiding-and-abetting th e ory do e s not r e quir e th e defendant’s acts to cause the criminal venture to succeed. It requires only association with the criminal venture, purposeful participation th erein, and an aff ir m ative act meant to make the venture succeed. Garcia , 242 F.3d at 596. There was sufficient proof that Moss satisfied these elements. As for Surtain, h e and Samuels called each other twenty-six times on May 7th, including shortly before midnight. Samuels called his girlfriend at 1:06 AM and 1:12 AM on May 8 th to ask if his van was okay; s h e said it was. Immediately after the 1:12 phone call, Samuels called Surtain, and c alled him again at 1:22 AM. The van fire occurred at about 3:00 AM. Surtain dismisses the large volume of calls between him and Samuels as

a n atural result of their relationship. Samuels was Surtain’s drug dealer and the brother of his child’s mother. U s i n g th eir common sense, however, the jurors could have found tha t e v e n t i e s as close as these did n ot explain th e flurry of phone calls on May 7th, and that it wa s n o c o i n c i dence they occurred the day befo r e t h e van fire. Moreover, Samuels’s relationship with Surtain does not explain why Samuels twice called Surtain just after he learned his van was still intact. This, c ombined with Surtai n ’ s s trong motive to destroy the murder evidence, permitted the jury reasonably to infer that S urtain had e ncouraged

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Samuels during th e ir phone calls to destroy the van. Accordingly, we will not reverse Surtain’s conviction on Count 12. C. Samuels’s Use-of-Fire Convictions Samuels argues t h a t his two use-of-fire convictions and sentences that

arose from the van f

ire must be vacated as multiplicitous. Samuels c o ntends that

a single fire cannot give r i s e to separate convictions under § 844(h)(1), even if that fire facilitated separately chargeable offenses—in this case, mail f raud and obstruction of justice. 18 U.S.C. §§ 1341, 1512(c)(1). As we will discuss, we will vacate Samuels’s use-of-fire sentences because Congress did not clearly state its intent to impose multiple punishments under § 844(h)(1) i n t he instant circumstances. 1. Legal Standards Because Samuels did not raise a multiplicity objection before trial, he has waived this challenge as to his use-of-fire convictions. See Fed. R. C r i m. P. 12(b)(3)(B); United States v . Soape , 169 F .3d 257, 265–66 (5th Cir. 1999). He can challenge the multiplicity of his sentences for the first time on appeal, h owever, because they are to run consecutively to each other and to his other sentences, and separate monetary a ssessments were imposed as to each conviction. See United States v. Marroquin , 885 F.2d 1240, 1 246 (5th Cir. 1989)

. We apply plainerror review because Samuels raised no objection at sentencing. United States v. Ogba , 526 F.3d 214, 232 (5th Cir. 2008). Section 844(h)(1) provides as follows: Whoever uses fire or an explosive to c ommit any felony which may be prosecuted in a court of the United States

. . . including a felony which provides f

or an enhanced punishment if committed by the use of a deadly or dangerous weapon or device shall, in addition to the punishment provided for such felony, be sentenced to imprisonment for 10 years. In the case of a second o r subsequent conviction under this subsection, s u ch person shall b e s entenced to imprisonment for 20 years. Notwithstanding any other provision of law,

. . . the term

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of imprisonment imposed under this subse c tion [shall not] run concurrently with any other term of imprisonment inclu di n g that imposed for the felony in which the explosive was used or carried. 2. Discussion “In general, ‘multiplicity’ is the charging o f a single offense under more than one c ount o f an indictment.” Soape , 169 F.3d at 266. “The ru le against mul t i p licity is grounded in the Fifth Amendment’s prohibition a gainst double jeopardy

. . . .” United States v. Buchanan , 485 F.3d 274, 2 7 8 ( 5 t h Cir. 2007) (internal quotation marks and citation omitted). A m ultiplicity violation arises, inter a lia , when the government has i mpermissibly divided a s ingle criminal act

or transaction into multiple violations, and separately charged each one under the s ame provision. See id. at 278–79. Here, the government argues that a single fire occasioned by Samuels permitted separate p unishments under § 844(h)(1) because it helped him to commit separately chargeable felonies. We confronted s imilar circumstances in United States v. Evans , 854 F.2d 56 (5th Cir. 1988), rev’g in part 848 F.2d 1352 ( 5th C i r . 1 9 8 8). In Evans , the defendant had presented false identif ic atio n to obtain a firearm and ammunition in a single transaction. 8 48 F.2d at 1354. S he was convicted for two violations of 18 U.S.C. § 922(a)(6), which prohibi t s e xhibiting “false, fictitious, or misrepresented i dentification” “in connection with the acquisit i o n . . . of any firearm or ammunition.” In addressing t h e defendant’s double jeopardy challenge, we c oncluded that the dispositive question was whether Congress had intended to “punish as two o ffenses the single making o f o ne f alse statement in connection with one purchase on the same occasi o n o f b o t h a firearm and ammunition. ” E v a n s , 854 F.2d at 58. This requires us to determine “[w]hat Congress has made the allowable unit of prosecution.” Id. at 59 ( quoting United States v. Universal C.I.T. Credit Corp. , 344 U.S. 2 18, 221 (1952)). I f the s tatutory text and legislative history are not dispositive of Congress’s intent, we apply the

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rule of lenity, r e s o lvi n g the m ultiple-punishment question in the defendant’s favor. Id. (citing Ladner v. United States , 358 U.S. 169, 177 (1958); Bell v . United States , 349 U.S. 81, 84 (1955)). As set out above, § 844(h)(1) provides p enalties for any person wh o “uses f ir e or an explosive to c ommit any felony.” The government implicitly argues th at “use of fire” is the proper unit of prosecution, and that Congress thus intended multiple punishments in Samuels’s circumstances. This interpretation is not unreasonable; after all, Samuels “used fire” to commit mail fraud, and also “used fire” to obstruct justice. Nonetheless, because the m ore lenient s t a t u tory construction is no less plausible, we must apply the rule of lenity. In United States v. Ph i p p s , 319 F.3d 177, 186–89 ( 5th C ir . 2003), the government offered a similar interpretation with respect to 18 U.S.C. § 9 24(c)(1). Section 9 24(c)(1) provides punishment for any person who “uses or carries a f i r e arm” “during and in relation to any crime of violence or drug traffic k i n g crime.” The defendant in Phipps had committed two violent crimes—carjacking and kidnaping—through the single “use” of a f irearm. 319 F .3d at 186. After examining § 924(c)(1)’s text and legisl a t ive history, we h eld that Congress’s intent as to the “unit of prosecution” was a mbiguous, thus compelling us to apply the rule of lenity. Id. at 187–88. Accordingly, we held that the applicable unit of prosecution was “the u se, c arriage, or possession of a firearm during a n d i n relation to a predicate offense.” Id. at 186. Because § 844(h)(1)’s text parallels that of § 924(c)(1) in relevant part, the applicable u nit of prosecution would also appear to be the pairing of a “use” and a “felony.” See Phipps , 319 F.3d at 186. The governme nt ar gu e s th at it s int erp r etation is supported by § 844(h)(1)’s requirement that punishment under that p rovision be served c onsecutively to any term of imprisonment imposed for the underlying felony. Section 924(c)(1) also imposes consecutive punishment, however, and w e considered and rejected the same argument in Phipps , 3 19 F.3d at 187. Although this r equirement

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undoubtedly evinces an intent t o impose harsh punishment for § 844(h)(1) violations when they occur, it does not e stablish what constitutes a violation. Because we p erceive no other part of the statutory text that m aterially distinguishes § 844(h)(1) from § 924(c)(1), we are not compelled to reach a result different from the one we reached in Phipps

. Nor does § 844(h)(1)’s l egislative history pr o vi d e r elevant instruction. It reveals only that Congress wished to discourage the widespread use of e xplosive and incendiary devices t o a c c omplish criminal objectives. As we e xplained in Phipps , 319 F .3d at 187, s uch an expression of intent does not r e s o lv e the ambiguity that confronts us. See Organized Crime Control Act of 1970, Pub. L. No. 91-452, 8 4 Stat. 922, 957 (codified a s amended in scattered sec t i ons of 18 U.S.C.); H.R. Rep. No. 9 1-1549 (1970), reprinted in 1970 U.S.C.C.A.N. 4007; see alsoAnti-Arson Act of 1982, Pub. L. No. 97-298, 96 Stat. 1319 (adding “fire” to 1 8 U

. S

. C

. § 8 44); H.R. Rep. No. 97-678 (1982), reprinted in 1982 U

. S.C.C.A.N. 2631. Likewise, the legislative history of § 924 (c)

—t h e provision on which § 844(h) was originally modeled, H.R. Rep. No. 91-1549, at 6 9—does not answer this question. See Phipps , 319 F.3d at 186–87 & n.6; Gun Control Act of 1968, Pub. L. No

. 9 0

- 6 1 8 , 8 2 Stat. 1213, 1224 (codified at 18 U.S.C. § 921 et seq. ); S. Rep. 90-1097 (1968), reprinted in1968 U.S.C.C.A.N. 2112. Furth er s up porting our decision today, we held in United States v. Se v e rns , 559 F.3d 27 4 , 2 9 1 ( 5 th Cir. 2009), that a single “fire incident” did not support multiple sentences under § 844(h)(1), even when that fire f urthered multiple predicate of

f e n s e s . I n Se v e rns , th e government charged two § 844(h)(1) violations after the defendant burned down her gun store in furtherance o f one mail fraud and one wire fraud offense. Analogizing the use-of-fire provision to § 924(c)(1),

we h eld that the defendant “may be prosecuted and punished for use of fire to commit mail fraud or use of f ire to commit wire f

raud, b u t n o t b o th.” Severns , 559 F.3d at 291.

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The government argues that Severns is inapposite because the underlying

m a i l a n d w i r e fraud o ffenses in that case were committed to achieve the same objective—to ob t ain f

ir e in s urance proceeds from the gun store’s destruction. 559 F.3d at 276–77. I t contends that Samuels’s distinct c rimin a l objectives in burning his van—to d estroy evidence and f raudulently obtain insurance proceeds—permit a different r esult. Based o n our § 924(c)(1) c aselaw, w e cannot accept this reasoning. In United States v . Walters , 351 F.3d 159, 161 (5th Cir. 2003), the defendan t w a s convicted on two § 924(c)(1) charges f or a single bombing, the predicate offenses being assaulting the federal o ffi c er who had opened the e xplosive package and damaging the federal building in whic h the package w a s opened. 18 U .S.C. §§ 111, 844(f). We rejected the government’s argument that “dual criminal purposes” supported multiple punishments under § 92 4 (c)(1), and vacated the defendant’s sentences. Walters , 351 F.3d at 173 (citing Phipps , 319 F.3d at 183). In ligh t o f § 8 4 4 (h) and § 924(c)(1)’s parallel textual structures, the identical p urpose motivating each p rovision’s enactment, H.R. R ep. No. 9 1-1549, a t 6 9 , and our past r e liance on the l atter provision to interpret the f

ormer, Severns , 559 F.3d at 291, we have ample reason t o extend the Walterscourt’s holding to the instant matter. Thus, applying the rule we articulated in Evans , 854 F.2d a t 5 9 , and reiterating o ur d ecision in Severns , 559 F.3d at 291, we hold that it was error to impose multiple sentences under § 844(h)(1 ) b a s e d on a s ingle “fire incident” that facil i t a t e d two underlying felonies. That Samuels had multiple c riminal objectives in causing the fire does not alter this result. 3. Plain-Error Review Having held that it w as error to impose a sentence on each of Counts 12 and 13, we must now determine whe t h e r this error was plain, and whether to correct it. To establish plain error, Samuels must show that “(1) there is error; (2) the error was clear and obvious, not subject to reasonable dispute; and (3) the

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error affected his substantial rights.” United States v. Hebron , 684 F.3d 5 54, 558 (5th Cir. 2012). We m ay “remedy the e rror, but only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. Whether an e rror is “clear and obvious” d epends on the clarity of applicable law. See United States v. Meza , 701 F.3d 4 1 1 , 4 34 (5th Cir. 2012) (vacating the defendant’s multiplicitous s entences sua sponte because the error

was “clear in light of” controlli n g a u thority). “[T]he focus of plain error review should be whether the seve r ity of the e rror’s harm demands reversal, and not

w h e ther the district court’s action

. . . deserves r ebuke.” United St a t e s v . Escalante-Reyes , 689 F.3d 415, 423 (5th Cir. 2012) (en banc) (citation omitted). We h ave found plain e rror when there was “no relevant distinction[]” between the case at bar and controlling precedent. Meza , 701 F.3d at 433. The governm e n t h a s correctly noted that the f acts in Severns are

s omewhat different from those present in the instant m atter. We think , ho w ever , that this difference is so slight, the controlli n g rule in Severns so clear, the weight of Walters so one-sided, and an expression o f legislative intent supporting the government’s p osition so lacking, that the d e c i s i on we h ave reached today

was all but certain. Moreover, this error severely affects Samuels’s substantial rights. Our view o f his conduct in this matter notwithstanding, we cannot allow

an additional twenty-year term of i mprisonment to be imposed when controlling authority s o c learly establishes its illegality. Accordingly, w e will vacate his sentences on Counts 1 2 and 13, remand for dismissal of o ne of these counts (at the e lection of the government), and o rder resentencing. Meza , 701 F.3d at 434. We deem the conviction on the remaining count affirmed. See id. D. Samuels’s Mail Fraud Convictions 1. Legal Standards Samuels argues there was insufficient evidence to support his mail fraud convictions under Counts 3 and 4. He contends that the mailings underpinning
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these convictions were not made in furtherance o f t h e l i f e insurance fraud. Although Samuels moved for acquittal at the close of the government’s evidence, he did not renew this motion at the close o f his d efense. In these circumstances,

we review for plain error. United States v. Villasenor , 236 F.3d 2 20, 222 (5th Cir. 2 0 0 0) (p er curiam). On p lain-error review, an evidentiary insufficiency chall e n ge “will be rejected unless the record i s devoid of evidence pointing to guilt or if the evidence is so tenuous that a conviction is shocking.” United States v. Delgado , 672 F.3d 320, 330–31 (5th Cir. 2012) (en banc) (citation omitted). A mail fraud conviction under 18 U.S.C. § 1341 requires sufficient pro o f t hat: “(1) the d efendant devised or intended t o devise a scheme to d efra u d , (2) the mails were used fo r th e purpose of e xecuting, or attempting t o execute, the scheme, and (3) the fals e h o o d s e m ployed in the scheme were material.” United States v. Ratcliff , 488 F.3d 639, 643–44 (5th Cir. 2 007). “One ‘ causes’ the mails to be used ‘[w]here one does an act with k n o w l e d g e that the u se of the mails will follow in the ordinary course of business, or wh e re suc h use can reasonably b e foreseen.’” United States v. Ingles , 445 F.3d 830, 835 ( 5th Cir. 2006) (alterations in o riginal) (quoting Pereira v. United States , 3 47 U.S. 1, 8–9 (1954)). The material that has been mailed need not be “fraudulent in itself.” United States v. Shively , 927 F.2d 804, 8 14 (5th Cir. 1991) (citation omitted). Our decision s construing the wire fraud s t atute are equally applicable to matters involving the mail fraud statute. United States v. Mills , 199 F.3d 184, 188 (5th Cir. 1999) (citing Carpenter v. United States , 484 U.S. 19, 25 n.6 (1987)). 2. Discussion The mailings underlying Counts 3 and 4 were related to the life insurance scheme. The government offered evidence that the insurance company sent a letter to Samuels’s m other—the other beneficiary on the policy—informing her that her claim had been d enied. The insurance company then m ailed a premium refund check t o Samuels and his mother. Samuels concedes the fact of these

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mailings, and does not deny that he knew mailings w o u l d take place after he applied for the policy. He argues instead that these mailings did n ot advance the scheme’s objective. Undeniably, Samuels’s life insurance fraud scheme failed. Because Samuels had n o t discl o s e d August’s history of drug use or his past treatments for gunshot w ounds o n the insurance application, the insurance c ompany denied coverage and refunded the premiums. Thus, the mailings w e have described do not, on their face, appear to have furthered the scheme. Significantly, the mail fraud statute does n o t r e qu i re the fraudulent scheme to be successful. Adj m i v . U n i ted States , 346 F.2d 654, 657 ( 5th Cir. 1965); see also U

nited States v. Loney , 9 59 F.2d 1 332, 1337 n .14 (5th Cir. 1992) (wire fraud). We have held that o nce a d e fendant obtains money from a fraud, “actions taken to avoid detection” a dvance the f raudulent scheme because they “allow the perpetrator to escape apprehension.” United States v. Allen , 76 F.3d 1348, 1363 (5th Cir. 1996) (wire fraud). To be sure, inasmuch as the mailings at issue did not help Samuels obtain life insurance proceeds, they failed to advance the scheme. But these mailings helped Samuels in a different w ay—they gave Samuels notice of whether he should continue to seek p roceeds by filing his own claim a s the second beneficiary. In an apparent effort to determine whether his scheme would actually work, Samuels did n ot f ile his claim at the same time as his mother’s. Because his mother’s claim was denied, he d eclined to file his own claim, thus making it less likely that he w ould be investigated and discovered. Samuels argues th at a mail fraud convi c t i o n c a nnot rest on a mailing whose “only likely effect

. . . w ould be to further d etection of the fraud o r t o d e t e r its continuation.” U

nited States v . LaFerriere , 546 F.2d 182, 187 ( 5th C ir. 1977). As

we have discussed, however, the government m akes a colorable argument that the mailings at issue helped Samuels avoiddetection.

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Assuming, arguendo , that “Plan B” mailings—i.e., mailings n otifying a would-be fraudster th a t h e s hould end a well-advanced scheme so that he can avoid detection and apprehension—are not “incident to an essential part of the scheme” under o ur prior decisions, we cannot say it was plain error n ot to acquit Samuels on this basis. See Ingles , 445 F.3d at 835; Allen , 76 F.3d at 1 363. He offers no decisi o n by this o r any other court squarely holding that “Plan B” mailings cannot support a mail fraud conviction, nor does he cite any de c ision that makes such a h olding inevitable. Because the challenge Samuels raises is thus “subject t o reasonable dispute,” Hebron , 6 84 F.3d at 558, and because the record i s not “devoid of evidence pointing to guilt,” Delgado , 672 F .3d at 331, we will not reverse Samuels’s mail fraud convictions. E. Brown’s Testimony Samuels argues that the district court plainly e rred by allowing Brown (Surtain’s cellmate) to o f fer incriminating testimony against him. As discussed above, Brown testified that Surtain h ad told him: ( 1) He would not b e found guilty because he disposed of the gun used in the murder; (2) he w as not worried that “his baby mama and her brother” would testi f y a gainst him because he could “get to” the brother; and (3) he was not concerned about being connected to the insurance fraud because he was not “a m ain beneficiary o n the policies,” although the person “that was in St. Charles [Parish Jail]” was a beneficiary. Samuels contends that, although his name was not explicitly mentioned in these statements, they nevertheless implicated him in Surtain’s c r imes because he w as the person referred to as the “brother” and the person “in S t. Charles.” Samuels further asserts that this testimony amounted to inadmissible hearsay, and violated his rights to confrontation, du e process, a n d a f air trial. Samuels concedes that plain-error review applies. United States v . Vargas-Soto , 700 F.3d 180, 182 (5th Cir. 2012).

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Because the statements at issue are n ontestimonial, we reject Samuels’s Confrontation Clause argument. See Davis v. W ashington , 5 47 U

. S

. 8 1 3, 825 (2006) (statements made by one prisoner to another are “clearly nontestimonial”). “[A] statement that is not testimonial cannot violate the Confrontation Clause.” Brown v. E pps , 686 F.3 d 2 8 1 , 2 8 6 ( 5th Cir. 2012) (alteration in original) (citation omitted); see also Davis , 547 U.S. at 823–24. Samuels als o ar gu e s th at th e a d m ission of Brown’s statements violated his rights to due process and a fair trial because Brown’s testimony was “unreliable” and “extremely prejudicial.” Samuels relies on Bruton v . United States , 391 U.S. 123, 126 (1968), in which the S upreme Court held that a non-testifying codef e n d ant’ s confession inculpating the o ther defendant was inadmissib l e at th eir joint trial. 2Samuels ignores that the Bruton rule “is a narrow one that applies only to statements that directly impli c ate the d efendant without r e ference to other a dmissible evidence.” U n i t e d S t a tes v. Jimenez , 77 F.3d 95, 98 (5th Cir. 1996). In other words, we have consistently held that Bruton “i s n ot violated unless a co-defendant’s stat e m e nt dir e ctly allu de s to th e c o m p l ainin g def e n d ant.” United States v. Espinoza-Seanez , 8 62 F.2d 526, 534 (5th Cir. 1988) (citation omitted) (collecting cases). Indirect references do not implicate Bruton

. Id. Here, Brown’s testimony d o e s n o t directly implicate Samuels as a participant in the crimin a l a c t ivity for which he was c onvicted. Brown’s first statement—that Surtain admitted to di sposing of the gun—does not implicate Samuels at all. Additionally, Surtain’s c omment that he could “get to” S amuels, whom he did not mention by name, suggests only that Surtain was concerned that Samuels might serve as a witness ag a i n s t h i m , not that Samuels was himself a participant in the criminal scheme. Similarly, S u rtain did not name

2 Although Sam uels characterizes this as a due p roces s and f air trial is s ue, w e note that Brutonp rop erly is und ers tood to be a Conf rontation Claus e cas e. Regard les s , as w e exp lain,
w e f ind no error und er Bruton

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Samuels as the beneficiary of the insurance policy; r a t h e r , Samuels himself admitted this in his opening statement. In any event, we note also that Bruton has been further limited “to cases where the admission of the incrim i n a t i n g s tatements w as not within a firmly rooted exception t o the h earsay rule.” United States v . Saks , 964 F.2d 1514, 1525 (5th Cir. 1992). We recently addressed whether a hearsay exception applies in circumstances analogous to those present h ere. United States v. Ebron , 683 F.3d 105, 132–34 (5th Cir. 2012 )

. I n E bron , two prisoners (Mosley and Ebron) were alleged to have m urdered a fellow i n m ate. Id. at 120–21. A third prisoner (Bailey) testified at Ebron’s trial that, while Mosley and Bailey were cellmates, Mosley admitted to him that he and Ebron had committed th e murder. Id. at 132–33. On appeal, E bron maintained that although the statement qualified as

a statement against p enal interest under Federal Rule of Evidence 804(b)(3) as to Mosley, its admission against E bron was improper

. I d

. at 133. We rejected Ebron’s argument, however, concluding that “[u]nl i k e the situation where a declarant i mplicates himself and the d efendant in a statement made to officials,

a statement made outside a custodial context d o e s n o t provide the same set of incentives that create the risk of an unreliable statement.” Id. The same is true here. Thus, contrary to Samuels’s argument, the di s t rict court did not err in admitting Brown’s challenged testimony, as the statement s a t issue qualify under the hearsay exception for statements against penal interest. F o r these r easons, we r eject Samuels’s contention that the district cour t plainly erred in admitting Brown’s testimony. Further, even were we to accept that the court erred, w e conclude that Samuels s till could not prevail on plainerror r eview because he i s unable to demonstrate that this pur p o rt e d e rror affected his substantial rights. Even absent the complained-of statements, the evidence of Samuels’s guilt was overwhelming.

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F. Trial Severance Samuels argues that the district c ourt should have severed his trial from that of Moss and S urtain. He did not move for severance at trial, and did not join in his co-defendants’ multiple, unsuccessful motions to sever. Samuels thus contends on appeal that the court should have severed the p roceedings sua sponteeven though it repeatedly denied his co-defendants’ severance motions. A defendant must m ove for severance before trial, or show good cause for failing to do so. Fed. R

. Crim. P. 12(b)(3)(D), 14(a). Because Samuels h as done neither, h e has waived this argument. United States v. Cantu-Ramirez , 669 F.3d 619, 624 (5th Cir. 2012). G. Prosecutorial Misconduct Samuels argues that the p rosecutors’ conduct rendered his trial fundamentally u nfair. He raises three misconduct issues on appeal, contending that the prosecutors ( 1 ) repeatedly and improperly asked leading questions; (2) m ade improper remarks in their closing and re b u t t a l arguments; and (3) misused a summary witness to recapitulate earlier witnesses’ testimony. In deciding a claim of prosecutorial misconduct, we first “assess whether the prosecutor m ade an i mproper remark. If the prosecution has made an improper r emark, we must then ask whether the defendant was p r ejudiced.” Ebron , 683 F.3d at 140 (internal citation omitted). Although we usually consider each remark individually, “[t]here may be instances wh er e i m p ro p er s t at e m ents, which are n ot individually prejudicial enough to r e quir e r ever s al , c o ul d cu m ul at e to affect the d efendant’s substantial rights. However, such instances are rare in this circuit.” Id. (internal quotation marks and citation omitted). “In considering

wh eth er p ro s e cutori al misconduct warrants reversal , th e det er min ative qu e s tio n is whether the prosecutor’s remarks cast serious doubt on the correctness of the j u ry ’ s v erdict.” Delgado , 672 F.3d at 3 34–35 (internal quotation marks and citation omitted).

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1. Leading Questions Federal Rule o f Evidence 611(c) p rovides that “[l]eading questions should not be used on direct examination except as necessary to develop the witness’s testimony. Ordinarily, the court s h o u l d allow leading questions: (1) o n crossexamination; and (2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.” Samuels offers fourteen instances of purportedly improper questioning b y the prosecutors, and contends that their cumulative effect was to render his trial fundamentally unfair. Although it c annot b e denied that th e p r o s e cutors repeatedly asked leading questions, and that the court admonished them aga i n and again, Samuels has not established that such questioning “cast serious doubt o n the correctness of the jury’s verdict.” Delgado , 672 F .3d at 334–35 (citation omitted). As t o m ost of the instances that Samuels cites, h e does not e xplain how prejudice resulted; ignores that other, properly e licited t estimony established the facts he sought to suppress; or f ails t o m ention that the court stoppe d th e i mproper questioning b e f

o r e the witness responded. Even assuming that th e remaining

occurrences prejudiced Samuels in s ome measure, he does not e xplain whether or how they materially affected the jury’s verdict. Samuels calls our attention to judicial statements r e s p ecting the harm that leading questions can cause. United States v. Durham , 645 F.3d 883, 891 (7th C ir. 2011) (“[V]alid c oncerns regarding the overuse of leading questions exist.”); Stine v . Marathon Oil Co. , 976 F.2d 254, 266 ( 5th C ir. 1 992) (“[A]ny good trial advocate who is allowed leading questions c an both testify for the witness and argue the client’s c a se by the use of leading questions.”); United States v. McGovern , 499 F.2d 1140, 1142 (1st Cir. 1974) (leading questions “may supply

a ‘false m emory’” in a friendly witness (citation omitted)). H owever, he offers no

a n alogous case—indeed, he offers no case at all—in which a judgm e n t o f conviction has been reversed b ased on leading questions. We do not suggest that

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l e a di n g questions never cause reversible e rror. Before we will grant appellate relief, however, we must be c onvinced that such questions affected a defendant’s substantial rights. Ebron , 683 F.3d at 140. Samuels has not convinced us of this. 2. Prosecutors’ Closing and Rebuttal Arguments Samuels further contends that, during the prosecutors’ cl osing and rebuttal arguments, they (1) argued facts that w ere n ot in evidence and misled the jury, (2) improperly vouched for government witnesses, and ( 3) improperly attacked the defendants and defense counsel. Because Samuels did not object to the purportedly improper statements, we review for plain error. Id. at 141.

a. Facts not in Evidence In discussing Samuels ’ s role in the Landry h ouse fire, the prosecutor stated: “And you r ecall Mr. Samuels who testified, obviously, before lunch, talking about this is some kind of an elect r i c a l f i r e . . . . But you see, con men, they think they can c onvince people. That was an arson.” Samuels c ontends that he never offered such testimony. In fact, Samuels testified tha t Landry had burned down his own house and blamed faulty e lectrical wiring. The prosecutor thus appears to have m isunderstood or misremembered Samuels’s testimony in

a way that made Samuels appear to b e dishonest. This mistake did not affect the integrity of the proceedings, however. As we will explain, witness c r edibility was

a main p oint of contention in closing arguments, and ample evidence permitted the jury to infer that Samuels had offered false testimony. In discussing the van fire, the prosecutor stated that a New Orleans fire investigator said the van had been m o ved away from Samuels’s house to keep the hou s e f

r o m c atching fire and to place the van in full view of the security
camera, thus aiding his alibi. As Samuels con c edes, the investigator testified that the security camera captured the arson o n tape, and that the house would have been damaged if the van had been parked closer to it. Although it is true that the investigator did not say these were Samuels’s reasons for parking the

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van where he did, the jury c ould have made this reasonable inference b ased on the investigator’s testimony. On rebuttal, the prosecutor criticized Samuels for allowing Surtain—his sister’s ex-boyfriend—to live in his apartment even though his sister bore ill will toward him following their break-up. The government thus suggested that Samuels would not have permitted Surtain t o s t ay w ith him but for Surtain’s assistance in August’s murder. Samuels contends that none of the trial evidence

r eve al e d M ari a S a mu el s ’ s f e elin g s ab o ut h er relationship with S urtain. Ho w ever , Samuels’s cross-examinat i o n testimony e stablished that Maria’s relationship with Surtain ended, and that s he gave their b aby to her p arents. S amuels sought to ju s t i f y his continuing relationship with Surtain by noting that Surtain remained his niece’s father. Accor di n gl y, although the prosecutor’s rebuttal statement did not perfectly characterize the evidence, neith e r w a s it unfairly prejudicial. Finally, the prosecutor sought to discredit Samuels’s alibi—his presence at church while Moss and Surtain were dealing with August—by stating that “[t]his guy went to church for the first time in [his] life, while this guy drove his

van to lure him out so he could be killed.” In the context of the entire p roceeding,

a reasonable jury would have recognized that this statement w as not meant to represent facts in evidence. Samuels’s apparent modus operandi throughout the events recounted at trial was to establish alibis t o distance himself from the

c r imes h e had planned: He was at a church service while Surtain wa s k i l l i n g August, was away from his home while oth e r s s et his v an o n fire, and had ins t r u c ted Landry t o visit a client while Moss was setting fire to his house. Further , h e appeared to play up his involvement in church activities—he testified that his great, great grandfather had founded the church, and that he had reminded his mother to retrieve a robe they we r e t o giv e their minister. Accordingly, a r easonable juror would have r e c o gnized the p rosecutor’s

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hyperbolic statement as an attack on S amuels’s credibility. See Ebron , 683 F.3d at 143 (“[T]he use of colorful pejoratives is not improper.”).

b. Vouching Samuels c ontends th at the prosecutor improperly vouched for government witnesses’ credibility, including that of ATF a ge n ts Robert S toltz and Wyatt Evans, and Samu e l s ’ s c ooperating c o -defendants. “[A] personal assertion by a prosecutor of a government witness’s credibility is impermi s s ible.” United States

v. G racia , 522 F.3d 5 9 7 , 6 0 1 (5th Cir. 2008). Personal vouching does not necessarily constitute r eversible error, ho w ever . “The test f or improper vouching for the credibility of a witness is whether the prosecutor’s expressi o n m ight

r e a sonably lead the j ury t o b elieve that there is other evidence, unknown o r unavailable to the jury, o n which the p rosecutor was c onvinced of the accused’s guilt.” United States v. M cCann , 613 F.3d 486, 495 ( 5th Cir. 2 010) (internal quotation marks and citation omitted). As to Stoltz and Evans, the prosecutor stated: And these two phenomenal agents, B obby S toltz and Wyatt Evans, they went backwards. They went t o the Augusts. “ Hmm, insurance. Let’s dig a little deeper.” That led to Stefan James, and that led to this prosecution. Just phenomenal work that you saw over the l ast week.

. . . [W]e put on a co m p e l l i ng case, thanks to those two gentlemen right here. Samuels argues that the prosecut o r thus “wrapp[ed] his witnesses in the government’s c l o a k of veracity and invok[ed] his p ersonal status as the government’s attorney t o assure the jury of the credibility of those a g e n t s.” Gracia , 522 F.3d at 606–07. We disagree. The prosecutor’s comments that Stoltz and Evans were “phenomenal” and did “phenomenal work” appear to h ave been based on his d escription of their investigation. F u rther, he did not specifically refer to their credibility as witnesses. Accordingly, we do not believe that a jury

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indisputably would have believ e d t h e prosecutor’s c omments were based on evidence not offered at trial. See McCann , 613 F.3d at 495. As to the cooperating witnesses, the prosecutor stated in rebuttal: Why in the world would someone come in and tell the truth about themselves, go in and p lead gu ilty before this Court, b e facing an enormous a mount of penalties, and then s tart lying about somebody else? In hopes – in hopes – that they can bamboozle the judge who will then say, “If the government gets bamboozled, o h, I ’m going to grant a reduction.” It makes no sense. * * * Well, you p ut yourself in a l l t h o s e witnesses’ s h oes with these cowboys, with these dudes, and you d ecide wh e t h er o r not you are at risk. Orlando [ Brown], who will be in jail for a long time; Stefan [James], who will b e in jail for a long time; Damian [Landry], who will be in jail for a long time; the family members, your family members, your wife, your brother, your aunt. You decide whethe r or n ot there is any risk, if it’s all cotton. That you have the hope, maybe, hopefully, that a judge will give you a decent s entence versus whether or not these guys will. Although a prosecutor “cannot express a personal opinion on the c redib i l i t y of witnesses,” he or she “may argue fair inferences from the evidence that a witness has no motive to lie.” Gracia , 522 F.3d at 6 01. From the above statements, we perceive no personal vouching for the cooperating witnesses’ c redibility. In each of these statements, the government fairly implied, b a s ed on record evidence, that the witnesses had strong motives not to lie. Moreover, the prosecutor made th e se comments on rebuttal to counter s pecific attacks defense c ounsel h a d m a de

on the witnesses’ c redibility. Bolstering is permitted in such circumstances. McCann , 613 F.3d at 495. Relying on on e o f our previous cases, Samuels nevertheless argues that reversible error occurred. I n Gracia , four of the prosecutor’s s tatements were at issue: (1) He stat e d t h a t b order patrol agents who had t estified at trial were

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“very, very credib l e” ; (2) he asked the jury whether an a gent “who has worked

as a law enforcement a gent for many years, that is his career, that i s his chosen life, a m an from this area, a man with a family

. . . w ould throw all that away by taking this s tand and taking an oath and lying to you to get Mr . Gracia”; (3) he urged the jury “to respect [the agents’] efforts as law enforcement officials and to believe the testimony that t h e y o f f e r e d”; and (4) he stated that “to acquit Gracia, [t h e j u ry] would have to believe that the agents ‘got out o f bed’ on the day they arrested Gr acia and decided that this was ‘the day that [they] were going t o s tart [a] conspiracy to wrongfully convict Mr. Gracia.’” 522 F.3d at 600 (third and fourth alterations in original). On plain-error review, we reversed the defendant’s conviction b ecause each of these statements urged conviction based

on “ something uniquely within the prosecutor’s knowledge.” Id. at 601. As we have discussed, however, the p r o s ecutor in the instant m atter made fair inferences respecting the witnesses’ c r edibility, and referred to the record evidence on which his s tatements were based. Accordingly, Samuels’s reliance

on Gracia is misplaced.

c. Character Attacks S amuels argues that the prosecutors improperly called him a “con m a n” and a “liar,” and made inappropriate remarks about defense counsel: But you see, con men, they think they can convince people. * * * You see, all tha t was designed to do, Mr. Con Man, you see, it’s a preemptive strike . . . . They have lied every chance that th e y g o t s o that they can try to bamboozle you. * * * [Defense counsel] forgot to tal k ab o ut [Samuels’s] p erformance up ther e . Because you had the opportunity to listen to tw o hours of fabrication. It’s a p athological liar. A guy that had an answer, and

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a bad answer, f

o r everything. Even when he l ooked at himself telling the 1,001 lie[s] t o t h e a g e n t s i n April of 2009

. . . . He can’t keep a story straight . . . . An d that’s the benefit of you being able t o watch s omebody on t h e witness stand. Because you really did get to see a m aster – I’m n ot saying he’s not a master. But you got to see a pathological liar. * * * He can connive. The prosecutor also attacked defense c o unsel’s arguments as “defen s e lawyer myths” and “ultimate lawyering.” “A prosecutor may not go b eyond the e vi d e n c e and attack a defendant’s chara c t er or veracity.” Delgado , 672 F.3d at 336. In the instant matter, the government relied h eavily on cooperating witnesses’ testimony, and Samuels’s defense hinged on the testimony he offered to e stablish that the government had gotten the wrong man. Witness credibility thus became a point of contention in both sides’ closing arguments; defense counsel attacked government witnesses’ truthfulness just as much as the government attacked Samuels’s. As we have recently discussed, “ [i]mproper assertion of a p rosecutor’s personal opinion is easily recognized.

. . . [I]t includes p ersonal e xpressions such

as ‘I think,’ ‘ I know,’ ‘I believe,’ or other e xpressions that either explicitly or implicitly c onvey the prosecutor’s personal i mpressions.” Id. at 3 36–37 (internal quotation m ark s and citations omitted). The prosecutor in the instant matter did

n o t e m p l oy such phrases o r otherwise s quarely imply that he was offering credibility assessments n ot based on trial eviden c e. Indeed, each of the purportedly impro p er statements Samuels cites was couched in evidence that tended to show he had lied or sought to mislead others o n s p e cific occasions. “While the prosecutor should have chosen his words more c arefully, his argument differs from i mproper argument in that its m eaning and effect would

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have been no different had he simp l y added the words ‘As I’ve explained, the evidence shows’ before stating that [Samuels] had lied.” Id. at 337. The prosecutor ’ s c o mments about “defense lawyer myths” and “ultimate lawyering” were also made in the con t e xt o f a battle over witness credibility. Fairly constr u e d , t h e se were attacks on defense counsel’s arguments, not pers o n al att ack s a gain s t th e def e n d ant s ’ attorneys. Accordingly, these comments were not improper. On plain-error r eview, w e c annot say that the prosecutor’s comments in closing and rebuttal arguments affected Samuels’s substantial rights or “cast serious doubt on the c orrectness of the jury’s verdict.” Ebron , 683 F

. 3 d at 140 (citation omitted); Delgado , 672 F .3d at 334–35. Accordingly, we will not reverse Samuels’s convictions on this basis. 3. Summary Witness Testimony The governme nt’ s f

in al witness was New Orleans p olice d etective and ATF task f orce officer Robert Stoltz. Much o f his testimony concerned the r e cords of
p h o n e calls from, to, and between the defendants. Samuels argues that th e government improperly used Stoltz’s t estimony t o recapitulate earlier government witnesses’ testimony, in effect o f f e r i n g a “supplemental closing

a rgument.” He n otes five instances in which Stoltz testified that ea r l i e r witnesses had confirmed their associa t i o n w i th certain phone numbers or discussed the timing of certain calls. Samuels also compl a i n s that the government a sked AT F a gent Wyatt Evans about Damian Landry’s testimony respecting money he said he had given Samuels. Evans t estified that Landry had not said he g ave Samuels insurance money, but had instead given Samuels money from his tax refund. Th e evi de ntiary rule respecting s ummary witnesses “does not co nt e m p l at e summarization of live t estimony presented in court.” United States v. Nguyen , 504 F.3d 561, 572 (5th Cir. 2007) (citation omitted). “Summary witnesses m ay
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not be u sed a s a substitute for, or a supplement t o, c l osing argument.” I d. (internal quotation marks and citation omitted). Assuming, arguendo , that t h e s e witnesses’ recapitulation of prior testimony c onstituted e rror, we do not agree that it affected S a m u els’s

s ub s tantial rights or “seriously affect[ed] the fairness, integrity, or pub l i c reputation of” his trial. Hebron , 684 F.3d at 5 5 8

. The witnesses made minor references t o other witnesses’ statements; this made u p a trifling part of their overall testimony. Their t estimony thus did not c o n s titute “supplemental closing arguments,” and reversal is not justified on this basis. H. Samuels’s Sentence Samuels also argues that his sentence was procedurally unreasonable and violated his Sixth Amendment right to trial by jury and Fifth Amendment right to du e p rocess. S p ecifically, he contends that although he was n o t charged with, and the jury did not find him guilty of, August’s murder, his offense level under the Sentencing Guidelines was driven primar i ly by this supposedly unproven offense c onduct. 3 Because Samuels did not raise this objection at sentencing, we review his sentence for p la i n e r r o r. United States v . Peltier , 505 F.3d 389, 392 (5th Cir. 2007). Although Samuels was initially sentenced to 9 00 months’ imprisonment,

we have ordered that his sentences o n Counts 1 2 a n d 13 be vacated on multiplicity grounds, and that a s e n t e n c e b e imposed as to only o ne of these

3 Sam uels f

urther contend s that he could not f ully d ef end him s elf becaus e s ubs tantial evid ence w as w as hed aw ay by H urricane Katrina. Sam uels d o e s not elaborate on what “s ubs tantial evid ence” was los t, and his record citations are unins tructive or irrelevant. H e als o argues that b e c a u s e he w as not charged w ith Augus t’s m urd er af ter N ew O rleans p olice inves tigated the matter, there m us t not have been enough evid ence to s up p ort a murd er conviction. We are not concerned w ith what evid ence w as available to N ew O rleans p ol i ce at that tim e, nor w hat evid ence w ould be required f or a m urd er conviction und er Louis iana law

. Sam uels ignor e s t h a t t he trial evid ence p res ented in the ins tant m atter overw helm ingly p roved that, as alleged in the s up ers eding indictm ent, he had Augus t k illed f or ins urance m oney. 38 Case: 11-30525 Document: 00512187631 Page: 38 Date Filed: 03/26/2013No. 11-30525

counts. The s entences we h ave vaca t e d ( and the sentence that must be reimposed o n remand) are man d a t o ry and inflexible, and are to be served consecutively to any other t e rm of imprisonment. 18 U .S.C. § 844 (h)(1). Because Samuels’s challenge essentially goes to his Guidelines offense level, which was not affected by his convictions or sentences on Counts 1 2 and 13 (and thus is not affected by our mandate respecting these counts), we will address his Guidelines argument in the interest of judicial efficiency. See United States v. MagdalenoSanchez , 169 F. App’x 830, 831 (5th Cir. 2006) (unpubli s h e d) (per curiam) (addressing Guidelines argument “in the interest of judicial efficien c y a n d to provide guidance on remand” even though the defendant’s sentence had already been vacated on other grounds). We conclude that no error arose from Samuels’s sentence. Samuels correctly notes that he w as not separately charged with murder in this matter. He was, however, convicted of conspiracy t o commit mail and wire fraud under Count 1

. The government alleged in t h a t c o unt that Samuels fraudulently obtained insurance on August’s life and then had him m urdered,

a n d offered ample evidence p roving as much. The district court thus applied § 2B1.1(c)(3) of the Sentencing Guidelines, which provides that where “the d efendant was convicted under a statute p roscribing false, fictitio u s , o r fraudulent s t a t e m e n ts or representations generally

. . . [and] the conduct set forth in the count of conviction e stablishes an o ffense specific a l ly covered by another guideline in C hapter Two (Offense Conduct), [the court should] apply that other guideline.” U.S.S.G. § 2B1.1(c)(3) (2010). The district court t h e n c o rrectly applied § 2A1.1 (First Degree Murder), the p ractical effect of which was a twenty-one-step increase in S amuels’s offense level. His Crimi n a l History Category of IV and offense level of forty-seven rendered an advisory Guidelines sentencing range of life imprisonment. Absent § 2A1.1’s application, and assuming that n o further adjustments would have

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applied to Samuels’s offense level , h i s advisory sentencing range would have been 9 2 to 115 months. N o n e theless, the Guidelines portion of his sentence—that is, the portion not affected by the three mandatory consecutive sentences imposed under 18 U.S.C. § 844(h)(1)—was limited by s tatutory maximum sentences. 18 U.S.C. §§ 371, 1 001, 1 341, 1343. This p art of the overall sentence amounted to twenty-fiv e y ears’ imprisonment. See id. §§ 3553(a), 3584(b) (setting o ut the factors to consider in determining whether sentences should run concurr e ntly or consecutively). The three mandatory § 844(h)(1) sentences increased his overall sentence to seventy-five years’ imprisonment. Rel yi n g o n dicta in o n e of our prior cases, Samuels argues that this is a “case[] where a sentencing fact [(i.e., August’s murder)] is a ‘tail that w ags the dog of the substantive offense,’ and might arguably require a finding beyond a reasonable doubt.” United States v. Mergerson , 4 F.3d 337, 344 ( 5 th Cir. 1993) (quoting McMillan v. Pennsylvania , 477 U.S. 79, 88 ( 1986)). We recently explained that we “ha[ve] never required s uch a heightened burden” for offense conduct findings, and our sister circuits have rejected it as w ell. United States

v. Brooks , 681 F.3d 678, 713 & n .31 (5th C ir . 2 012). Accordin gl y , t h e district court did not plainly err in applying the preponderance standard for Guidelines
purposes. See United States v. Setser , 568 F.3d 482, 498 (5th Cir. 2009). Even if a heightened standard applied, however, w e w ould not reverse Samuels’s conviction. R e m a rkably, Samuels contends that August’s h omicide

an d S amuels’s role in it were “unproven.” O nce again, the government alleged that, in satisfaction of the conspiracy count’s “overt act” r equirement, Samuels agreed to p a y S u r t a i n to kill August, and that S urtain fatally shot August on April 24, 2004. As o utlined above, the government offered an overw h e l ming amount of evi d e n c e e stablishing that Samuels had August killed t o obtain life insurance proceeds, and certai nl y e n ough t o satisfy the reasonable doubt standard for p urposes of the conspiracy count and the first-degree murder

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sentencing guideline. U.S.S.G. § 2A1.1; s ee also 18 U.S.C. § 1111 (“Murder is the unlawful k i l l i ng of a human being with malice aforethought. Every murder perpetrated by any . . . kind of willful, deliberate, malicious, and p r emeditated killing . . . is murder in the first degree.”). I II. CONCLUSION For the f oregoing reasons, we VACATE Samuels’s sentences on Counts 12 and 13 of the superseding indictment, R E MAND f or reversal by the district court of his conviction o n one of these counts (at the governme n t’s election) and dismissal of that c ount, and order resentencing on the remainin g c ount. We deem the judgmen t of conviction on the r e maining count AFFIRMED. In all other respects, we AFFIRM the district court’s judgment.

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JAMES E. GRAVES, JR., Circuit Judge, concurring in part and dissenting in part: I concur with the majority in all respects except for its affir m a nce of the conviction of C harles Moss and Jermaine Surtain on Count 1 2 f o r a iding and abetting the use of fire to commit obstruction of justice. The jury instruction on Count 12 requires that, to convict, the jury must find beyond a r e a sonable doubt that the defendant “knowingly caused the use of fire to alter, destroy, mutilate, or conceal a record, document, or other object,

or attempted to do so, with the intent to i m pair the object[’] s i n t e grity or availability for use in an official proceeding, or otherwise obstruct, influence, or imped e a n y o fficial proceeding.” The jury instruction then lists the four elements of a charge of aiding and abetting, which was the charge M oss and Surtain were facing in relation to Count 12:

For you to find the defendant guilty of this c rime, you must be convinced that the government has proved each of the f o l l o w i ng beyond a reasonable doubt: 1. That

. . . the offense charged

. . . w as committed by some person; 2. That the defendant a ssociated with the c riminal venture; 3. That the d efendant purposefully part i cipated in th e criminal venture; and 4. That the defendant sought b y action to m a ke that venture successful. The jury instruction further explains: “The term ‘to associate with the criminal venture’ m eans that the d efendant s hared the criminal intent of the principal. This element cannot be established if th e defendant had no knowledge of the principal’s criminal venture.” An d “[t]he term ‘to p articipate in the criminal venture’ means that the d efend ant e n ga ge d in s o m e af f irmative conduct designed to aid the venture or assisted the principal of the crime.”

42 Case: 11-30525 Document: 00512187631 Page: 42 Date Filed: 03/26/2013No. 11-30525

The majority’s o pinion i s correct that inferences supported by circumstantial evidence can satisfy the elements of a crime, but those inferences must be reasonable

. United States v. Moreland , 6 65 F.3d 137, 1 4 9 (5th Cir. 2011) (quotation o mitted) (“We [] will draw upon only reasonable inf erences from the evidence to suppo rt the verdict.”). “Courts cannot credit inferences within the realm of possibility when those inferences are u nreasonable.” Id. (quotation omitted). M oreover, we “uphold the verdict if, but only if, a rational juror could have found each element of the offense beyond a reasonable do ubt.” Id. at 155 (quotation omitted). “A verdict may not rest on mere suspicion, speculation, or

c o njecture, o r on an overly attenuated piling of inference on inference.” I d

. a t 149 (quotation omitted). With r espect t o the four elements of the aiding and ab e t t i n g charge for Count 12, the first e lement is easily satisfied. David S amuels along with two unidentified individuals committed the underlying offense of burning the van to obstruct justice. Regarding the s econd element, “associating with the criminal venture,” a reasonable j ury would have t o infer that Moss and Surtain had knowledge of and shared in Samuels’s criminal intent, and h ad a motive to burn the van. I agree that circumstantial evidence supports the inference that Moss and Surtain both knew about Samuels’s van b urning scheme an d shared his motive—to destroy evidence of Treyor Winston August’s murder. 1 The third and fourth elements, h owever, are m ore troublesome. The third element requires that M oss and Surtain engaged in some affirmative conduct to aid or assist Samuels in the burning of the van. The majority, citing United States v . Gulley , 526 F.3d 809, 816 (5th Cir. 2008) , p r operly notes that mere encouragement is sufficient to “aid or assist.” The fourth element requires that

1 It is im m aterial here t h a t S a m u e l s had an ad ditional m otive of collecting the ins urance p ayout f

or the d es troyed van. 43 Case: 11-30525 Document: 00512187631 Page: 43 Date Filed: 03/26/2013No. 11-30525

M o ss and Surtain sought by action to make the van b urning successful

. T h e content of the phone calls between Moss and Samuels, and Surtain and Samuels

o n t h e day and night of the van fire are unknown. Therefore, to properly f i n d Moss a nd S u rtain guilty beyond a reasonable doubt on the third and fourth elements, a jury w ould have to make two a dditional inferences: that the three

were discussing the burning of the van during those c alls; and that during those calls, Moss and Surtain aided or encouraged S amuels in setting the van ablaze. I agree that a reasonable j ury, based o n circumstantial evidence, could have made the s econd inference regarding the likely content of the phone calls. Nevertheless, the third inference—that Moss and Surtain aided or e ncouraged S a m uels—is a p rime example o f “speculation, [] conjecture, or an o v e r l y attenuated piling of inference on inference.” M oreland , 6 6 5 F

. 3 d at 149. This inference is not t ether e d t o any circumstantial evidence, and is therefore unreasonable. I cannot accept the majority’s ruling that a rational juror could have f ound beyond a reasonable doub t that Surtain and Moss e ncouraged Samuels to b urn the v an during the calls or that Samuels s ought Moss’s advice

o n h ow to burn the van since Moss was the s o-called go-to man on incendia ry devices. The r e c o r d i s clear that Samuels was the ringleader and o rganizer of every criminal scheme. Based on the history of the three’s interactio n s, it is indeed more likely that Samuels was instructing Surtain and Moss during those calls, informing them of his plan to burn the van and what the others should do next. Because a r easonable jury could not have found Moss and Surtain guilty beyond a reasonable doubt on the last two elements of the aiding and abetting charge, I dissent from the m a jority’s affirma n c e o f the conviction of Moss and Surtain on Count 12.

44 Case: 11-30525 Document: 00512187631 Page: 44 Date Filed: 03/26/2013