United States Court of Appeals

for the Fifth Circuit

____________

No. 22-30238

____________

United States of America, 

Plaintiff—Appellee,

versus

Robert Brumfield, III; Jeremy Esteves

Defendants—Appellants.

______________________________

Appeal from the United States District Court 

for the Eastern District of Louisiana

USDC No. 2:17-CR-201-5

______________________________

Before Clement, Elrod, and Willett, Circuit Judges.

Don R. Willett, Circuit Judge:

This appeal arises from a 2013 armed robbery of a Loomis armored 

truck in New Orleans. One Loomis truck guard, Hector Trochez, was shot 

and killed during the attack. In total, six people were indicted in connection 

with the robbery and attendant conspiracy. A jury convicted Robert 

Brumfield III and his cousin Jeremy Esteves for their roles in the crime. 

Before sentencing, new evidence emerged regarding the credibility of 

two Government witnesses. Esteves and Brumfield moved for a new trial, 

alleging that the Government had suppressed the evidence in violation of 

United States Court of Appeals

Fifth Circuit

FILED

December 22, 2023

Lyle W. Cayce

Clerk

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2

Brady v. Maryland

1 and Giglio v. United States.2 The district court denied the 

motion.

On appeal, Brumfield and Esteves challenge the district court’s denial 

of their motion, contending that the evidence was material impeachment 

evidence. Brumfield separately challenges the denial on the ground that the 

Government failed to correct false testimony in violation of Napue v. Illinois.3

He also appeals his sentence.

In short, Brumfield is not entitled to a new trial because the new 

evidence is not material in light of the entire trial record; his Napue claim fails 

because he has not shown that the Government knowingly presented

materially false testimony; and his sentence was procedurally and 

substantively reasonable. But we conclude that the new evidence was 

material as to Esteves, so the district court must consider in the first instance 

whether he has satisfied all the elements of his Brady claim.

We AFFIRM IN PART, REVERSE IN PART, and REMAND 

to the district court for further consideration of Esteves’s Brady claim.

I

In December 2013, a Chevy Tahoe with heavily tinted windows pulled 

up in front of a Chase Bank as an armored Loomis truck was making a 

delivery. Three armed men stepped out. Loomis guard Anjene Treaudo sat 

in the truck’s driver’s seat while a second guard, Hector Trochez, unloaded 

the currency. The three men shot at the truck and Trochez, killing him. The 

men then stole around $260,000 from the truck and sped off in the Tahoe. A 

_____________________

1

373 U.S. 83, 87 (1963).

2 405 U.S. 150, 154 (1972).

3

360 U.S. 264, 269 (1959).

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brave eyewitness followed them. He saw two men exit the Tahoe and get into 

a second getaway car—a green Honda. The Tahoe, which was stolen a week 

before the robbery, was found abandoned nearby, its engine still running.

After a years-long investigation, police traced the robbery to Lilbear 

George, Curtis Johnson, Jr., Chukwudi Ofomata, Esteves, and Brumfield. All 

five were charged with conspiracy and other charges related to the robbery 

and Trochez’s murder. Brumfield and Esteves were charged with three 

counts: (1) conspiracy to obstruct commerce by robbery, in violation of 18 

U.S.C. § 1951(a); (2) obstruction of commerce by robbery, in violation of 18 

U.S.C. § 1951(a); and (3) using, carrying, brandishing, and discharging 

firearms during and in relation to a crime of violence, causing death, in 

violation of 18 U.S.C. § 924(c)(1)(A)(iii) and (j)(1).

Brumfield and Esteves moved to sever their cases from the other 

defendants who faced the death penalty. The district court granted the 

motions, and Brumfield and Esteves continued to trial. 

Two days into trial, Brumfield and Esteves learned that the 

Government had failed to disclose two pieces of evidence: (1) phone 

recordings about the Loomis robbery between an FBI informant and 

cooperating witness Jamell Hurst; and (2) the FBI’s informant file on Hurst, 

which contained an agreement between Assistant United States Attorney 

(AUSA) McMahon and the Orleans Parish District Attorney’s Office not to 

extradite Hurst in connection with a 2013 aggravated burglary warrant. 

Because Hurst’s testimony is central to Brumfield’s and Esteves’s 

Brady claim, we briefly recount his testimony. Hurst was one of the 

Government’s main witnesses. He had been an FBI informant since at least 

2014. At trial, Hurst implicated both Brumfield and Esteves in the robbery 

and conspiracy. As to Brumfield’s involvement, Hurst testified that 

Brumfield told him he was staking out an armored truck in preparation for a 

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robbery and that Brumfield commented that the robbery would be easy 

because the man in the truck was “big, fat, and clumsy.” Hurst also said that 

he spoke with George, who told him Brumfield “was supposed to be involved 

in the robbery, but that he didn’t have the character to pull it off and so he

was replaced.” Esteves, too, told Hurst that Brumfield was supposed to 

participate in the robbery, but the other participants were concerned he 

would “freeze up.”

As to Esteves’s involvement, Hurst testified that Esteves confessed 

that he, George, Ofomata, and Johnson committed the robbery and that 

Esteves was a getaway driver. Hurst told an FBI agent that in May 2014, 

Esteves drove him to Esteves’s mother’s home and showed him money in a 

shoebox. The FBI later found approximately $20,000, some of which was in 

a shoebox in the home.

As to the benefits Hurst received for testifying, Hurst testified that the 

government told him it would inform the Baton Rouge district attorney or 

judge overseeing his pending sexual battery charges that he was cooperating 

with the Loomis investigation. He also testified that the FBI gave him $1,200 

to help buy a new phone and move back to New Orleans and that he was 

interested in the $50,000 reward for the information he provided.

Brumfield and Esteves moved for a mistrial based on the newly 

disclosed evidence. The district court continued trial to allow the defendants 

to review the evidence. It heard argument and orally denied the motions, 

holding that Brumfield and Esteves were not prejudiced by the 

Government’s failure to disclose the evidence because they had a 

continuance to review the evidence before cross-examining Hurst. 

The jury convicted Esteves on all three counts. But it convicted

Brumfield only of conspiracy to commit the robbery. 

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After the verdict but before sentencing, Ofomata’s counsel disclosed 

to Brumfield’s and Esteves’s counsel additional evidence about benefits that 

Hurst and another Government witness, Lydell Hinton, obtained for 

cooperating with the Government. Brumfield and Esteves moved for a new 

trial, arguing that the Government violated Brady and Giglio. The district 

court denied the motion, holding that the new evidence was immaterial in 

light of the entire trial record.

The same district judge sentenced all five defendants. Brumfield filed 

ten objections to his presentence investigation report (PSR). The 

Government opposed all of them. Most relevant here, Brumfield objected to 

(1) the district court’s finding that he was the second getaway driver; (2) its 

rejection of the downward adjustment for being a minor participant; and 

(3) its application of the murder cross-reference for Trochez’s death. The 

district court ruled on each objection in a written order, overruling the three 

objections relevant to this appeal.

4 The court sentenced Brumfield to 240 

months’ imprisonment—the statutory maximum. Esteves received 600 

months’ imprisonment—120 months for Counts 1 and 2, and 600 months for 

Count 3, to be served concurrently. He does not appeal his sentence.

Brumfield and Esteves timely appealed the district court’s denial of 

their motions for a new trial. Brumfield also challenges his sentence.

II

Brumfield and Esteves both challenge the district court’s denial of 

their motion for a new trial. Brumfield raises two additional arguments. First, 

he argues that the Government violated his due process rights by failing to 

correct allegedly false witness testimony in violation of Napue v. Illinois. 

_____________________

4 The district court sustained three of Brumfield’s objections relating to certain 

factual information in the PSR and overruled the other seven objections.

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Second, he argues that his sentence is procedurally and substantively 

unreasonable. We address the motions for a new trial first. 

A

We first address whether the Government suppressed material

impeachment evidence in violation of Brady, entitling Brumfield and Esteves 

to a new trial. “We review motions for a new trial based on an alleged Brady

violation de novo, ‘while acknowledging that we must proceed with deference 

to the factual findings underlying the district court’s decision.’”5

The district court denied the motions for a new trial because the 

evidence was immaterial in light of the entire trial record. We agree as to 

Brumfield, but not as to Esteves.

6

“To prevail on a Brady claim, ‘a defendant must show: (1) the 

evidence at issue was favorable to the accused, either because it was 

exculpatory or impeaching; (2) the evidence was suppressed by the 

prosecution; and (3) the evidence was material.’”7 For evidence to be 

material, there must be “a reasonable probability that, had the evidence been 

disclosed to the defense, the result of the proceeding would have been 

_____________________

5 United States v. Perry, 35 F.4th 293, 345 (5th Cir. 2022) (quoting United States v. 

Sipe, 388 F.3d 471, 479 (5th Cir. 2004)); see also United States v. Severns, 559 F.3d 274, 278 

(5th Cir. 2009).

6 The district court doubted that Brumfield and Esteves could establish that the 

Government suppressed evidence of benefits or promises made to Hurst. Assuming that 

they could produce sufficient evidence of suppression, the district court concluded that 

such evidence would be favorable. But the court held that because the evidence was 

immaterial, their claim would fail even if the first two elements of their Brady claim had 

been met. 

7United States v. Swenson, 894 F.3d 677, 683 (5th Cir. 2018) (quoting United States 

v. Dvorin, 817 F.3d 438, 450 (5th Cir. 2016)); see also Giglio, 405 U.S. at 154–55 (applying 

Brady to impeachment evidence).

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different.”8 “A ‘reasonable probability’ is established when the failure to 

disclose the suppressed evidence ‘could reasonably be taken to put the whole 

case in such a different light as to undermine confidence in the verdict.’”9

Brumfield and Esteves contend that the Government suppressed the 

following evidence of Hurst’s benefits for cooperating10:

• Recordings of seven phone calls from Hurst to his mom 

while he was in jail, in which he asked his mom to call the 

FBI. Hurstsaid that FBI Special Agent Rayes told him that 

he could get his charges dismissed and that Rayes and 

AUSA McMahon told him they could get him out of 

anything but murder. Hurst’s mom reported to Hurst that 

Special Agent Elmer was working with the district attorney

to get him out.

• A New Orleans Police Department (NOPD) incident 

report regarding Hurst’s 2013 aggravated burglary charge

that states that the victim was “one hundred percent sure” 

that Hurst was the perpetrator. Hurst testified that the 

charges were dismissed because the witness mistakenly 

picked him in the photo lineup. 

• A Brazoria County, Texas, investigation report showing 

that Hurst (1) was arrested for possessing 37 stolen credit 

cards and controlled substances and (2) was later indicted

for fraudulently possessing only two credit cards. At trial, 

Hurst testified only to the latter.

• A Baton Rouge Police Department incident report

regarding Hurst’s 2014 arrest for battery, which stated that 

an officer discovered that Hurst had an outstanding warrant 

_____________________

8 United States v. Bagley, 473 U.S. 667, 682 (1985).

9 United States v. Runyan, 290 F.3d 223, 247 (5th Cir. 2002) (quoting Kyles v. 

Whitley, 514 U.S. 419, 435 (1995)).

10 The defendants do not challenge the evidence concerning Hinton’s benefits.

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for burglary issued by the NOPD. The report states that 

the officer was initially advised that the NOPD wanted 

Hurst booked, but that the officer was then advised by the 

NOPD to release Hurst because he was an informant.

• A Louisiana Department of Public Safety and Corrections 

file on Hurst, which states that Hurst had an active warrant 

issued by Texas and that “Texas indicated that they were 

coming to get [Hurst].” Another entry states that Special 

Agent Elmer called on the same date that the Texas arrest 

warrant was issued and asked to speak with Hurst’s 

supervising probation officer. Another earlier entry notes 

that Special Agent Elmer called in October 2014 seeking 

Hurst’s contact information and stating that he was trying 

to retrieve “some type of FBI issued equipment.”11

Brumfield and Esteves argue that Hurst was the only witness who 

implicated them in the crimes, so the above impeachment evidence was 

critical to attacking his credibility.

We have explained that “when the undisclosed evidence is merely 

cumulative of other evidence in the record,” such as “when it merely 

furnishes an additional basis on which to impeach a witness whose credibility 

has already been shown to be questionable,” it is not material.

12 Nor is 

suppressed evidence material “when the testimony of the witness who might 

have been impeached by the undisclosed evidence is strongly corroborated 

by additional evidence supporting a guilty verdict.”13 Thus, we must consider 

whether the new evidence was cumulative of the evidence heard at trial and 

_____________________

11 Brumfield and Esteves also argued below that the Government suppressed 

evidence concerning Hurst’s mental health, but they do not press that issue on appeal.

12 Sipe, 388 F.3d at 478, 489 (cleaned up).

13 Id. at 478.

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whether Hurst’s testimony was strongly corroborated by additional evidence 

supporting the verdicts.

Hurst was thoroughly impeached at trial, but this doesn’t end our 

inquiry because we agree with the district court that “[t]here is a significant 

difference in degree and kind between the benefits Hurst testified about at 

trial” and the benefits revealed by the undisclosed evidence. Hurst admitted 

that he had initially lied to the FBI about several details about the robbery.

The jury heard about his criminal history, including his arrest for credit card 

fraud and his cooperation with the Secret Service on that charge, and that at 

one point, he had an open warrant for aggravated burglary. The jury also 

heard that Hurst was currently in jail for simple burglary, criminal damage, 

home invasion, aggravated assault, sexual battery of a six-year-old, and 

indecent behavior with a juvenile.

As to the benefits Hurst received from cooperating with the 

Government, defense counsel cross-examined Hurst on the evidence that led 

to the motion for a mistrial, which revealed that Hurst was an FBI informant

and that the NOPD decided not to extradite Hurst on his outstanding 

aggravated battery warrant.

14 The jury also heard that Hurst was motivated 

to testify because (1) he hoped the prosecution would talk to the district 

attorney or judge in Baton Rouge about his cooperation, and (2) he was 

interested in receiving the $50,000 reward. 

_____________________

14 Special Agent Elmer testified that he did not recall whether or not Hurst had an 

open warrant. But when presented with the FBI form, Elmer testified that he must have 

been aware of it, and if the FBI was able to clear Hurst, he speculated that they may have 

worked with the district attorney. But defense counsel did not press Special Agent Elmer 

on the extradition agreement and whether Special Agent Elmer did in fact intercede on 

Hurst’s behalf.

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Hurst testified that the Government did not intervene on his behalf

regarding his aggravated burglary warrant, but the jury did not hear about the 

evidence suggesting (1) that Hurst received additional promises from the 

Government or (2) that the Government may have fulfilled those promises. 

As to the additional promises, the phone call recordings indicate that an FBI

agent promised to get Hurst out of any charge except murder. The recordings

and the reports also suggest that the Government may have made good on 

that promise. But whether Hurst actually received help from the 

Government is unclear. The district court noted that the evidence did not 

“conclusively establish that the government assisted Hurst in the past, or 

promised to assist him in the future,” and the Government denied 

intervening in Hurst’s other charges. Even so, the Government’s promise for 

leniency in exchange for Hurst’s testimony would be “more powerful” 

impeachment evidence than the mere possibility of a favorable outcome.15 We 

therefore conclude that the new evidence was not cumulative of the other 

impeachment evidence. 

We next turn to whether Hurst’s testimony was “strongly 

corroborated” by other evidence that supports the guilty verdicts.16 We must 

decide whether there is a reasonable probability that, if the allegedly 

suppressed evidence had been disclosed, the result would have been 

different. Our inquiry “is not a sufficiency of the evidence test,” however.17

_____________________

15 See Dvorin, 817 F.3d at 451.

16 See Sipe, 388 F.3d at 478; see also Rocha v. Thaler, 619 F.3d 387, 396 (5th Cir. 

2010) (“The materiality of Brady material depends almost entirely on the value of the 

evidence relative to the other evidence mustered by the state.”).

17 LaCaze v. Warden, 645 F.3d 728, 737 (5th Cir. 2011); Sipe, 388 F.3d at 489 

(“[T]he materiality inquiry is not just a matter of determining whether, after discounting 

the inculpatory evidence in light of the undisclosed evidence, the remaining evidence is 

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Instead, we must ask whether the evidence “could reasonably be taken to put 

the whole case in such a different light as to undermine confidence in the 

verdict.”18 Generally, we have found that undisclosed impeachment 

evidence is material where the evidence of the defendant’s guilt was 

“overwhelming.”19 Although there is overwhelming evidence against 

Brumfield, who was convicted only of conspiracy, we cannot say the same for 

Esteves, who was convicted on all three charges.

Start with the evidence against Brumfield. Hurst testified that 

Brumfield told him that the group was staking out the armored truck and that 

the robbery would be easy because the guard “was big, fat, and clumsy.” This 

evidence was strongly corroborated by other evidence at trial.20 Hinton 

placed Brumfield squarely within the conspiracy. Hinton owned a rap studio 

where Brumfield and the other conspirators frequented to “get off the street, 

if the police was hot, [to] go in there and take a chill pill.” Hinton testified

that, after the robbery, Brumfield showed up late to a recording session after 

being questioned by the FBI about the robbery. Brumfield told Hinton that 

he wanted to rap about the FBI questioning him about his involvement. 

Although Hinton counseled against it, he heard that Brumfield later rapped 

about it anyway, but Hinton said he never heard the recording. Hinton also 

_____________________

sufficient to support the jury’s conclusions.” (alteration in original) (quoting Strickler v. 

Greene, 527 U.S. 263, 290 (1999))).

18 LaCaze, 645 F.3d at 736.

19 See, e.g., Perry, 35 F.4th at 347; United States v. Davis, 609 F.3d 663, 696 (5th Cir.

2010); United States v. O’Keefe, 128 F.3d 885, 897 (5th Cir. 1997).

20 See LaCaze, 645 F.3d at 736 (“A Brady violation is more likely to occur when the 

impeaching evidence would seriously undermine the testimony of a key witness on an 

essential issue or there is no strong corroboration.” (emphasis added) (internal quotation 

marks and citation omitted)).

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testified that Brumfield admitted that he was “waiting” in “a green Honda”

to be the getaway driver after the robbery.

Cedric Wade, who grew up with Esteves and was close friends with 

Ofomata and Brumfield, was a critical witness. He testified that Brumfield 

was a well-known, close associate of the other co-conspirators, known as “the 

circle.” Ofomata’s ex-girlfriend testified that Brumfield and Ofomata were 

so close they had “a little brother/big brother type of relationship.” Phone 

records linked Brumfield to a Chase Bank employee, Thierry King,

21 and 

showed that Brumfield and Esteves talked the morning of the robbery.

Shortly after the robbery, the phone associated with Brumfield used a cell 

phone tower that was near both the Chase Bank and Adams Street, where the 

Tahoe was located after the robbery.

Brumfield primarily relies on two cases in support of his argument that 

the new evidence is material. The first is Smith v. Cain.

22 There, the 

prosecution failed to turn over a detective’s notes that stated that the only 

eyewitness expressed doubt about whether he saw the perpetrator’s face.23

At trial, the witness had testified that he had “no doubt” about the 

defendant’s identity.24 The Supreme Court held that the evidence was 

material because the detective’s notes directly contradicted the witness’s 

testimony, which “was the only evidence linking [the defendant] to the 

crime.”25 Here, the new evidence is not as critical. To be sure, the new 

evidence shows that the benefits Hurst received were greater than what he 

_____________________

21 King was a person of interest in the robbery, but she was not arrested or charged.

22 565 U.S. 73 (2012).

23 Id. at 74, 76.

24 Id. at 76 (cleaned up). 

25 Id.

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testified to. But as we explained above, he was impeached on other grounds, 

his testimony wasn’t the only evidence connecting Brumfield to the 

conspiracy, and his testimony was corroborated.

The second is Wearry v. Cain.

26 There, the prosecution withheld 

evidence of two witnesses’ motives to testify. The prosecution failed to 

disclose that (1) the first witness had a personal vendetta against the 

defendant and wanted to ensure the defendant “gets the needle cause he 

jacked [him] over,”27 and (2) the second witness approached the prosecution 

twice, offering to testify in exchange for a deal.28 This contradicted the 

second witness’s testimony at trial that his only motive for testifying was out 

of love for his sister, who was friends with the victim’s sister, a narrative the 

prosecution emphasized.29 The Supreme Court held that both pieces of 

evidence were material. Here, the contrast between Hurst’s testimony and 

his motives as revealed by the new evidence is less stark. At trial, Hurst 

admitted that he asked the Government for help. As explained above, the new 

evidence just shows that there may have been additional benefits.

30 And the 

evidence did not reveal that Hurst had an undisclosed vendetta against 

Brumfield.

Next consider the evidence against Esteves. Hurst also testified that 

Esteves told him that the group staked out the robbery, but most importantly, 

_____________________

26 577 U.S. 385 (2016).

27 Id. at 389.

28 Id. at 390.

29 Id. at 394.

30 Cf. LaCaze, 645 F.3d at 738 (holding that the prosecutor’s undisclosed promise 

to a witness that the witness’s son would not be prosecuted put the whole case in a 

“different light” where the witness said he likely would not have testified but for the 

promise and that witness was the only witness testifying to a critical element of the crime).

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unlike his testimony about Brumfield, Hurst testified to Esteves’s specific 

role in the robbery. He said that Esteves told him that he drove the Tahoe 

and “never got out of the car.” Hurst also testified that George, too, told him 

that Esteves was the driver. Finally, Hurst testified that Esteves took him to 

Esteves’s mother’s house and showed him a stack of money in a shoebox but 

that Esteves didn’t say where the money came from.

While some of Hurst’s testimony was corroborated, we cannot say 

that it was strongly corroborated. Wade testified that Esteves was also part of 

“the circle.” Wade said that on the morning of the robbery, Ofomata, 

Johnson, George, and Esteves arrived at his house to pick up firearms that 

Ofomata had dropped off the night before. According to Wade, Ofomata 

grabbed the bag, checked its contents, and on the way out, told Wade, 

“Watch the news. We going to be straight.” Wade testified that this meant 

that “something is about to happen to where he’s about to get some money.” 

Wade then followed Ofomata out of the house and watched him put the duffle 

bag into the back of a dark gray Tahoe and get in. Wade testified that he could 

see the Tahoe’s other passengers: Esteves was in the driver’s seat, George 

was in the passenger seat, and Johnson was in the backseat behind George.

But he allegedly saw Esteves through the Tahoe’s windows that were so 

“heavily tinted” that “the normal person” would not have been able see 

through them. Historical cell site data showed that George’s phone made 

calls using cell towers near Wade’s residence and then near the Chase Bank 

on the day of the robbery, but the records don’t reveal whether Esteves was 

near the robbery like Brumfield was. 

Eyewitness accounts and the Chase Bank’s surveillance footage 

generally corroborates Wade’s testimony about the Tahoe’s passengers, but 

there is no specific testimony about the Tahoe’s driver. Treaudo, the other 

Loomis guard, witnessed the robbery from inside the Loomis truck and

testified that three men exited the vehicle. She said two men exited from the 

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passenger side of the vehicle, but she did not remember whether the third

came from the driver’s seat. The other eyewitness, who watched the robbery 

from his car, testified that he saw two men standing on the side of the Tahoe, 

leaning over the door, and shooting at someone. He also saw a third man 

running to get into the back seat immediately before the robbers made their 

getaway. 

Wade testified that later that day, Ofomata returned to Wade’s 

residence and put money inside an air conditioning unit. Wade also testified

that Esteves told him that he was concerned that Brumfield was snitching to 

the FBI about the robbery. King also had Esteves’s number in her phone; 

Esteves’s number was in her top ten most contacted numbers. And finally, a

search warrant of Esteves’s mother’s house revealed $20,000, some of it in 

shoeboxes. Although the information about the money came from Hurst, 

Special Agent Elmer testified to a jail call he listened to between Esteves and 

his girlfriend at the time, in which Esteves told her that he had money in 

shoeboxes in his closet. But Loomis does not tally money by serial number, 

so the only way for the Government to connect the money to the robbery is 

by the bills’ denomination. And there was evidence suggesting that the 

money may have been from Esteves’s employer, who paid him exclusively in 

cash. Much of this evidence implicates Ofomata and the other robbers, rather 

than Esteves.31

_____________________

31 See Wearry, 577 U.S. at 393 (dismissing evidence in a Brady analysis that only 

“suggest[ed], at most, that someone in [the defendant’s] group of friends may have 

committed the crime”).

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Although a close question, we conclude that Esteves has shown that 

“the new evidence is sufficient to ‘undermine confidence in the verdict’” 

and is thus material.32

In sum, we conclude that based on the evidence presented at trial, the 

evidence was immaterial as to Brumfield, but not as to Esteves. Esteves,

however, has not satisfied all elements of his Brady claim to warrant a new 

trial. The district court did not consider whether Government suppressed the 

new evidence, so we remand to the district court to consider this prong in the 

first instance.

B

We next consider Brumfield’s Napue claim. Although we ordinarily 

review an order denying a new trial under Napue for abuse of discretion,33

Brumfield raises this issue for the first time on appeal. Brumfield argues that 

he preserved his Napue claim because, in his motion for a new trial, he 

asserted that Hurst falsely testified that he didn’t expect any benefit for

testifying and that AUSA McMahon knew that wasn’t true. But Brumfield 

discussed the allegedly false statements only in the context of his Brady claim. 

Thus, we review this issue for plain error.34

To establish a Napue violation, Brumfield must prove: “(1) [the 

witness] testified falsely; (2) the government knew the testimony was false; 

_____________________

32 Id. at 392 (quoting Smith, 565 U.S. at 75).

33 United States v. Stanford, 823 F.3d 814, 838 (5th Cir. 2016) (citing United States 

v. Wall, 389 F.3d 457, 465 (5th Cir. 2004)).

34 United States v. Oti, 872 F.3d 678, 690, 696 n.13 (5th Cir. 2017). “[E]ven if we 

were to determine that [Brumfield] preserved his challenge under Napue and were to 

review his argument under an abuse of discretion standard of review, we would conclude 

that he does not prevail under that standard.” Id. at 696 n.13.

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and (3) the testimony was material.”35 “Even assuming that the prosecution 

presented (or failed to correct) false testimony, the critical factor is 

materiality.”36 “The Supreme Court has ‘defined materiality in terms of a 

“reasonable probability” of a different outcome,’ which ‘results when 

nondisclosure places the case in a different light so as to undermine 

confidence in the verdict.’”37

Brumfield asserts that the prosecution failed to correct allegedly false

testimony three times. As with Brumfield’s Brady claim, the evidence 

concerns Hurst’s benefits from testifying—namely, his 2013 warrant for 

aggravated burglary.

First, Brumfield argues that Special Agent Elmer falsely testified on 

cross-examination that Hurst “[d]id not have an outstanding warrant” for 

aggravated burglary when the FBI form registering Hurst as an informant 

indicated he did in fact have an outstanding warrant. Second, Brumfield 

argues that Hurst falsely testified that his burglary warrant was not pursued 

because the victim mistook him as the perpetrator when the NOPD incident 

report stated that the victim identified Hurst with “one hundred percent”

certainty. And finally, Brumfield says that Special Agent Elmer and Hurst 

falsely testified that the FBI did not intervene on Hurst’s behalf after the 

burglary warrant was issued when the new evidence revealed that the New 

_____________________

35 United States v. Mason, 293 F.3d 826, 828 (5th Cir. 2002). Brumfield argues that 

the Government violates Napue if it knew or should have known that a witness’s testimony 

was false. In support of this standard, Brumfield cites to one unpublished opinion, in which 

this court noted that it has granted a new trial when the government suppressed evidence 

it should have known was false. See United States v. Jena, 590 F. App’x 324, 327 (5th Cir. 

2014). But we need not address this argument because he has not proven that the testimony 

presented was materially false.

36 Stanford, 823 F.3d at 839.

37 Id. (citation omitted) (quoting O’Keefe, 128 F.3d at 894).

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Orleans district attorney’s office asked that Hurst not be booked because he 

was an informant.

As we explained in the Brady analysis, the new evidence regarding 

Hurst’s warrant—and the testimony here—is immaterial in light of the 

entire record. The jury heard testimony about Hurst’s warrant, including the 

new evidence that precipitated the motion for a mistrial, and knew that New 

Orleans chose not to book Hurst on the warrant. What’s more, even 

assuming Elmer’s testimony was false, and not a result of mistake or faulty 

memory,38 defense counsel elicited the testimony during cross-examination. 

We have held that “when the defense elicits the alleged perjury on crossexamination, no material falsehood has occurred because the government has 

not itself knowingly presented false testimony.”39

Thus, Brumfield has failed to demonstrate a Napue violation.

C

Finally, we consider Brumfield’s challenge to the legality of his 

sentence. In reviewing Brumfield’s sentence, we are “limited to determining 

whether [it is] ‘reasonable.’”40 Our review is bifurcated.41 “First, [we] must 

_____________________

38 Special Agent Elmer testified that he thought the form was incorrect, could not 

recall anything about the warrant, and believed there was no warrant. Cf. Stanford, 823 F.3d 

at 841 (“In sum, although the falsehoods that Stanford alleges are based on apparent 

evidentiary inconsistencies, it is questionable whether one could describe the 

inconsistencies as false, let alone material.”).

39 O’Keefe, 128 F.3d at 894; see also United States v. Fields, 761 F.3d 443, 477 (5th 

Cir. 2014) (“Here, the falsehood also occurred during cross-examination. As a result, the 

testimony is not material.”).

40 United States v. Rhine, 637 F.3d 525, 527 (5th Cir. 2011) (quoting Gall v. United 

States, 552 U.S. 38, 46 (2007)).

41 United States v. Rodriguez, 523 F.3d 519, 524–25 (5th Cir. 2008) (citing Gall, 552 

U.S. at 51).

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ensure that the district court committed no significant procedural error.”42

If there is no procedural error, we review the sentence’s substantive 

reasonableness for abuse of discretion.43

1

First, procedural reasonableness. Procedural reasonableness 

“requires that the district court calculate the Guidelines range, consider the 

[18 U.S.C.] § 3553(a) factors, and explain the sentencing decision.”44 When, 

as here, the sentencing objections are preserved, we review “the district 

court’s interpretation or application of the sentencing guidelines de novo, and 

its factual findings for clear error.”45 “A finding of fact is not clearly 

erroneous ‘[a]s long as it is plausible in light of the record read as a whole.’”46

Brumfield argues that the district court made four procedural errors 

in calculating his sentence: (1) finding that he was the second getaway driver 

without supporting evidence; (2) applying the murder cross-reference for 

Trochez’s death, even though his death was not reasonably foreseeable;

(3) failing to apply the minor-participant downward variance when Brumfield 

was only peripheral to the crime; and (4) using acquitted conduct to enhance 

his sentence. We address each in turn.

_____________________

42 Id. at 525.

43 Id.

44 Rhine, 637 F.3d at 528 (quoting Gall, 552 U.S. at 51); United States v. Douglas, 

957 F.3d 602, 606 (5th Cir. 2020) (“[A] district court commits ‘significant procedural 

error’ when it ‘fail[s] to calculate (or improperly calculate[es]) the Guidelines range.’”

(second and third alterations in original) (quoting Gall, 552 U.S. at 51)).

45 United States v. Halverson, 897 F.3d 645, 651 (5th Cir. 2018) (citation omitted).

46 United States v. Betancourt, 422 F.3d 240, 245 (5th Cir. 2005) (alteration in 

original) (quoting United States v. Morris, 46 F.3d 410, 419 (5th Cir. 1995)).

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a

Brumfield offers two reasons why the district court erred in finding he 

wasthe second getaway driver. First, he argues that the district court ignored 

his factual arguments in violation of Federal Rule of Criminal 

Procedure 32(i)(3)(B). And second, he argues that this finding was not 

supported by a preponderance of the evidence.

Under Rule 32, the district court “must—for any disputed portion of 

the presentence report . . .—rule on the dispute or determine that a ruling is 

unnecessary either because the matter will not affect sentencing, or because 

the court will not consider the matter in sentencing.”47 We have “rejected 

the proposition that a court must make a catechismic regurgitation of each 

fact determined.”48 Rather, we have explained that “the district court [may]

make implicit findings by adopting the PSR.”49 Rule 32 is satisfied if “the 

findings in the PSR are so clear that the reviewing court is not left to ‘secondguess’ the basis for the sentencing decision.”50

Here, the district court issued a detailed written order explaining the 

reasons for overruling each of the challenged objections. It explained the 

specific evidence that supported the finding that Brumfield was the getaway 

driver, including testimony from Hinton and Hurst, factual basis statements 

from George and Ofomata, and the fact that the PSR was corroborated by 

witness testimony, cell phone records, and statements by Brumfield’s 

coconspirators. 

_____________________

47 Fed. R. Crim. P. 32(i)(3)(B).

48 United States v. Ramirez-Gonzalez, 840 F.3d 240, 246 (5th Cir. 2016) (internal 

quotation marks and citation omitted).

49 Id.

50 Id. (quoting United States v. Carreon, 11 F.3d 1225, 1231 (5th Cir. 1994)).

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Brumfield also argues that the district court’s finding is unsupported 

by a preponderance of the evidence because (1) the eyewitness testified that 

one of the robbers got into the driver’s seat of the Honda, and (2) the 

evidence showed that Brumfield and Esteves were calling each other, which 

means they could not have been in the Honda together. Neither proves that 

the district court’s finding is clearly erroneous. 

“[T]he district court need only determine its factual findings at 

sentencing by a preponderance of the relevant and sufficiently reliable 

evidence.”51 As to the eyewitness’s testimony, Brumfield misstates the 

record. On cross-examination, the eyewitness testified that one of the coconspirators got in the car on the “driver’s side.” When asked whether the 

individual was getting into the driver’s seat, the witness responded, “One of 

those doors, yes, sir, on the street side of the car.” But he said that he did not 

look long enough to see if anyone was sitting inside the vehicle waiting.

Consequently, the district court’s conclusion that Brumfield was the driver 

is not inconsistent with eyewitness testimony. 

Brumfield’ssecond argument fares no better. The eyewitness testified 

that only two robbers got into the second getaway car, although he could not 

identify them. The cell phone records showed that a phone associated with 

Brumfield used a cell phone tower near the Chase Bank and Adams Street,

where the second getaway car was waiting. So the district court’s finding that 

Brumfield was driving the Honda was “plausible in light of the record read 

as a whole.”52

_____________________

51 Betancourt, 422 F.3d at 247 (citation omitted).

52 See id. at 245.

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Accordingly, the district court did not clearly err in finding that 

Brumfield was the second getaway driver.

b

Brumfield next argues that the district court erred in applying the 

murder cross-reference under § 2B3.1 of the Guidelines because Trochez’s

murder was not foreseeable from his involvement. Brumfield argues that his 

conduct was outside the scope of what led to Trochez’s murder because (1) at 

most Brumfield took part in the surveillance of the truck the week before the 

robbery, and (2) he withdrew from the conspiracy when he was “kicked 

out.”

Under § 2B3.1, the murder cross-reference applies “[i]f a victim was 

killed under circumstances that would constitute murder under 18 U.S.C. 

§ 1111.”53 “Co-conspirator liability under § 1B1.3 does not automatically 

arise because of participation in a conspiracy.”54 Rather, “[f]or sentencing 

purposes, a defendant can be liable for conduct that is (1) ‘within the scope 

of the jointly undertaken criminal activity,’ (2) ‘in furtherance of that 

criminal activity,’ and (3) ‘reasonably foreseeable in connection with that 

criminal activity.’”55 “‘Jointly undertaken criminal activity’ is defined as ‘a 

criminal plan, scheme, endeavor, or enterprise undertaken by the defendant 

in concert with others, whether or not charged as a conspiracy.’”56 Whether 

_____________________

53 U.S.S.G. § 2B3.1. 

54 United States v. Morrow, 177 F.3d 272, 302 (5th Cir. 1999).

55 United States v. Gonzales, 841 F.3d 339, 359 (5th Cir. 2016) (quoting U.S.S.G.

§ 1B1.3(a)(1)(B)).

56 Morrow, 177 F.3d at 302.

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an action was “reasonably foreseeable” or “in furtherance” of a “jointly 

undertaken criminal activity” is a fact question.

57

The district court did not err in applying the murder cross-reference. 

Brumfield agreed to jointly undertake the armed robbery of the Loomis truck. 

The nature of a bank robbery demands the reasonable foreseeability that a 

weapon would be used during the crime.58 Indeed, bank robbery “is, by its 

nature, a violent crime.”59

The district court also grounded application of the murder crossreference in an example in the Guidelines that mirrors Brumfield’s 

participation:

Defendant C is the getaway driver in an armed bank robbery in 

which $15,000 is taken and a teller is assaulted and injured. 

Defendant C is accountable for the money taken under 

subsection (a)(1)(A) because he aided and abetted the act of 

taking the money (the taking of money was the specific 

objective of the offense he joined). Defendant C is accountable 

for the injury to the teller under subsection (a)(1)(B) because 

the assault on the teller was within the scope and in furtherance 

of the jointly undertaken criminal activity (the robbery), and 

was reasonably foreseeable in connection with that criminal 

activity (given the nature of the offense).60

Replace “armed bank robbery” for “armored truck robbery” and 

“assaulted” for “killed” and you have this case.

_____________________

57 Id.

58 United States v. Burton, 126 F.3d 666, 679 (5th Cir. 1997).

59 United States v. Jordan, 945 F.3d 245, 264 (5th Cir. 2019).

60 U.S.S.G. § 1B1.3 cmt. 4(B)(i).

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That Brumfield was “kicked out” of the conspiracy is irrelevant. 

What matters is that he did not withdraw. To constitute a withdrawal, 

Brumfield must have committed an “affirmative act to defeat, disavow or 

discourage the conspiracy.”61 He “must show that he has committed 

affirmative acts inconsistent with the object of the conspiracy that [were]

communicated in a manner reasonably calculated to reach conspirators.”62

He has not done so. 

Thus, the district court did not err in applying the cross-reference.

c

Brumfield next arguesthat the district court erred in declining to apply 

a two-level minor-participant reduction under § 3B1.2(b). He contends that 

he was a minor participant because he was kicked out of the conspiracy, 

didn’t receive any robbery proceeds, and wasn’t heavily involved in the 

planning stages. “Whether [Brumfield] was a minor or minimal participant 

is a factual determination” we review for clear error.63

Section 3B1.2(b) of the Guidelines allows the court to apply a twolevel sentence reduction if the defendant “was a minor participant in any 

criminal activity.”64 “[A]‘minor participant’ is someone who is less culpable 

than most participants but more culpable than a minimal participant.”65 “A

‘minimal participant’ is someone who lacks knowledge or understanding 

_____________________

61 United States v. Romans, 823 F.3d 299, 320 (5th Cir. 2016).

62 United States v. Mann, 161 F.3d 840, 860 (5th Cir. 1998).

63 United States v. Gomez-Valle, 828 F.3d 324, 327 (5th Cir. 2016) f(citation 

omitted); see also Jordan, 945 F.3d at 264 (“[W]e also review the district court’s decision 

not to apply a sentencing reduction de novo on the law, but for clear error on the facts.”).

64 U.S.S.G. § 3B1.2(b).

65 United States v. Broussard, 882 F.3d 104, 111 (5th Cir. 2018).

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about the scope or structure of the enterprise.”66 This determination “is 

based on the totality of the circumstances” and “is heavily dependent upon 

the facts of the particular case.”67

In determining whether a defendant’s participation was “minor,” the 

Guidelines instruct courts to consider: (1) the defendant’s understanding of 

the “scope and structure of the criminal activity”; (2) the defendant’s 

“participat[ion] in planning or organizing the criminal activity”; (3) the 

defendant’s “decision-making authority or influence[]”;(4) “the nature and 

extent of the defendant’s participation in the commission of the criminal 

activity, including the acts the defendant performed and the responsibility 

and discretion the defendant had in performing those acts”; and (5) “the 

degree to which the defendant stood to benefit from the criminal activity.”68

The district court made findings on all but the third factor. Based on 

the totality of the circumstances, the court could have reasonably concluded

that Brumfield understood the scope of the criminal activity. He understood 

that the “armored car guards would not relinquish proceeds of the robbery 

to his co-defendants in response to a ‘please’ and a ‘thank you,’” and that he 

was being replaced due to concerns he would “freeze up” in the face of the 

likely violence. The evidence also supports a finding that Brumfield took part 

in planning and organizing the robbery; that Brumfield’s participation as the 

second getaway driver facilitated the robbery by helping his co-conspirators 

avoid apprehension; and that he stood to benefit financially from the robbery. 

_____________________

66 Id.

67 U.S.S.G. § 3B1.2 cmt. 3(C).

68 Id.

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That Brumfield did not have decision-making authority does not change this 

analysis.69

The district court did not clearly err in determining that Brumfield 

was not a minor participant. A reduction based on Brumfield’s role in the 

robbery was unwarranted.

d

Finally, Brumfield argues that the district court erred in relying on 

acquitted conduct. But he concedes that this argument is foreclosed under 

United States v. Watts.

70 That concession is correct.71 Accordingly, the 

district court did not err in relying on acquitted conduct.

2

We now turn to substantive reasonableness. Substantive 

reasonableness “depends on ‘the totality of the circumstances, including the 

extent of any variance from the Guidelines range.’”72 The district court 

sentenced Brumfield to a sentence within the Guidelines, so his sentence is 

_____________________

69 See Jordan, 945 F.3d at 265 (“As [the defendant] notes, the Government did not 

provide evidence that [he] had decision-making authority. But, even without such 

evidence, the other three factors support the district court’s finding that [he] was not a 

minimal or minor participant.”).

70 519 U.S. 148 (1997).

71 Id. at 157 (holding that “a jury’s verdict of acquittal does not prevent the 

sentencing court from considering conduct underlying the acquitted charge, so long as that 

conduct has been proved by a preponderance of the evidence”); see also United States v. 

Gaspar-Felipe, 4 F.4th 330, 343 n.11 (5th Cir. 2021) (“[The defendant’s] argument that the 

Constitution bars considering acquitted conduct during sentencing is foreclosed by 

Supreme Court precedent. And we have repeatedly rejected his follow-up argument that 

Watts is no longer good law.” (citation omitted)).

72 Rhine, 637 F.3d at 528 (quoting Gall, 552 U.S. at 51).

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presumptively reasonable.73 Brumfield can rebut the presumption only by 

“demonstrat[ing] that the sentence does not account for a factor that should 

receive significant weight, gives significant weight to an irrelevant or 

improper factor, or represents a clear error of judgment in balancing 

sentencing factors.”74

Brumfield argues that the district court erred in sentencing him to the 

statutory maximum because the court did not consider Brumfield’s 

“peripheral” role in the conspiracy, gave too much weight to Brumfield’s 

comment before the robbery that Trochez was “a big, fat, clumsy guy,” and 

improperly weighed the sentencing factors by sentencing Brumfield to a 

sentence that was twice Esteves’s for the same count. None have merit.

First, as explained above, the district court did not err in rejecting 

Brumfield’s argument that he was a minor participant in the conspiracy. His 

argument fares no better here. Second, the district court did not unduly rely 

on Brumfield’s comment about Trochez before the robbery. Rather, it 

mentioned the comment as one of the many reasons it did not believe that 

Brumfield was remorseful. True, Brumfield was sentenced to more time than 

Esteves on the conspiracy count; Esteves received 120 months and Brumfield 

received 240. But in total, Esteves was sentenced to 600 months (for all three 

counts), while Brumfield was sentenced to 240 months. Disagreement with 

how the district court weighed the various sentencing factors cannot rebut a 

presumption of unreasonableness.75

_____________________

73 Gaspar-Felipe, 4 F.4th at 344.

74 United States v. Willis, 76 F.4th 467, 477 (5th Cir. 2023) (quoting United States 

v. Hernandez, 876 F.3d 161, 166 (5th Cir. 2017)).

75 See United States v. Camero-Renobato, 670 F.3d 633, 636 (5th Cir. 2012).

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Brumfield has not rebutted the presumption that his sentence was 

reasonable. We find no error. 

III

In sum, Brumfield is not entitled to a new trial. Brumfield’s Brady 

claim fails because the new evidence was not material as to him. His Napue

claim fails because he has not shown that the Government presented 

materially false testimony. And his challenge to his sentence fails because the 

district court did not procedurally or substantively err in sentencing him.

But Esteves’s claim warrants further consideration. We conclude that 

the undisclosed evidence was material as to him, so the district court must

consider whether he has satisfied the other elements of his claim. 

We therefore AFFIRM IN PART, REVERSE IN PART, and

REMAND to the district court for further consideration of Esteves’s Brady 

claim.

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