United States v. Stallings ( 2023 )


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  • Case: 19-11300         Document: 00516755329             Page: 1      Date Filed: 05/18/2023
    United States Court of Appeals
    for the Fifth Circuit                                        United States Court of Appeals
    Fifth Circuit
    FILED
    May 18, 2023
    No. 19-11300
    Lyle W. Cayce
    Clerk
    United States of America,
    Plaintiff—Appellee,
    versus
    Robert Eugene Stallings,
    Defendant—Appellant.
    Appeal from the United States District Court
    for the Northern District of Texas
    USDC No. 3:19-CR-217-1
    Before Richman, Chief Judge, and Graves and Ho, Circuit Judges.
    Per Curiam:*
    Following a three-day jury trial, Robert Eugene Stallings was
    convicted of one count of communicating false information and hoaxes in
    violation of 
    18 U.S.C. § 1038
    (a)(1). On appeal, Stallings argues that the
    evidence is insufficient to sustain his conviction, the district court erred in
    denying his request for several jury instructions, the Government made
    improper comments during closing arguments, and the district court erred
    *
    This opinion is not designated for publication. See 5th Cir. R. 47.5.
    Case: 19-11300     Document: 00516755329           Page: 2   Date Filed: 05/18/2023
    No. 19-11300
    by relying on his bare arrest record to impose an upward departure at
    sentencing. Because the evidence was sufficient and the district court did not
    err regarding the jury instructions, closing arguments, or sentencing, we
    affirm the judgment of the district court.
    I
    Robert Eugene Stallings had an account at Wells Fargo Bank through
    which he received Social Security disability payments. However, Stallings
    lacked proper photo identification to make cash withdrawals from that
    account and could not verify a permanent address to obtain a debit card for
    that account. Accordingly, he was able to access his account only through
    discretionary withdrawal procedures for limited amounts of cash. In 2018,
    Stallings entered the Skillman-Abrams branch of Wells Fargo in Dallas,
    Texas to withdraw money without the required identification. Upon showing
    a piece of paper with a “mugshot”-type photo, Stallings was allowed to make
    a small one-time withdrawal. The banker informed Stallings that the “next
    time he wanted to withdraw funds from the account he would have to bring
    in a physical form of ID or a debit card.” Yet on his subsequent visits to the
    Skillman-Abrams branch, Stallings did not bring either.          Instead, he
    continued to try to convince the tellers to release cash to him without those
    “safeguards.”
    On one occasion, when a teller would not issue cash to Stallings from
    his account after he showed her “a mugshot picture or some sort of picture
    of his -- just face,” Stallings accused the teller of “holding [his] money
    hostage.”   He then made “a big scene, drama,” cursing at the bank
    employees and eventually left. During another unsuccessful withdrawal
    attempt, Stallings became “really angry,” “loud,” and “rude.” When asked
    politely to leave, he threw a “giant soda cup at the teller window,” knocked
    down plastic containers with brochures in them, and “shov[ed] everything
    2
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    No. 19-11300
    down to the floor, again yelling and screaming at everybody, cussing” before
    he left. A couple months later, when another teller yet again declined
    Stallings’s withdrawal request—noting that he did not have the proper
    identification and that she “was aware that he had been disruptive in the bank
    before”—Stallings became angry, cursed at the teller, and threw a cannister
    of candy she kept on the counter on the floor. As the teller attempted to
    escort Stallings out of the bank, telling him “he was not welcome back in [the
    Skillman-Abrams] branch,” Stallings “turned around just outside” and
    gestured around his crotch as he continued to curse at the teller. After the
    teller reiterated to Stallings that “he was never allowed in the branch again,”
    the branch manager reported the incident to security.
    Despite that ban, two months later, Stallings entered the Skillman-
    Abrams branch with two unmarked duffel bags. He was not visibly upset and
    made no verbal threats. When a banker recognized and approached him, he
    stated that “he knew he wasn’t supposed to be there because of, you know,
    the things that he had done.” Stallings said he would like to speak to the
    manager, after a chance “to collect his thoughts.”          Throughout this
    interaction, he “wasn’t really looking at” the teller, “just kind
    of . . . wandering around, looking around.” Before the teller could return
    with the manager, Stallings left the bank—leaving his bags behind—and
    walked across the street to a liquor store.
    Upon learning of the bags, the manager first contacted security
    personnel and then the police. Security personnel told the manager to ask for
    a police trespass warning—not a bomb squad—and to move the bags herself.
    The manager asked for a trespass warning, but did not move the bags. As the
    Wells Fargo employees waited for the police to arrive, they continued to
    permit customers to enter and conduct business in the branch. One customer
    even stood right next to Stallings’s bags. When the police arrived, they
    evacuated everyone from the building and called a bomb squad to the scene.
    3
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    A bomb squad officer, Corporal Walton, moved the bags “downrange” and
    x-rayed them, finding innocuous items inside (e.g., vodka, decorations, a
    jacket, and papers containing Stallings’s identifying information).
    Sometime after police arrived, Stallings boarded a bus a few blocks
    away. As he boarded, the bus driver asked the boarding passengers if they
    knew what was “going on” at the bank. Stallings responded, “I think they’re
    looking for me, because I left a bomb over across the street at the bank.” The
    driver’s son overheard the statement. Stallings calmly continued that he
    “was having problems at the Wells Fargo” and “was pissed off” at the teller
    because “she was giving him a hard time,” and explained that he “was
    teaching [the teller] a lesson.” After Stallings exited the bus, the driver
    contacted law enforcement, largely discounting Stallings’s story because he
    did not seem upset and she was used to hearing “all kinds of things” over her
    years of bus driving.
    Two days later, Stallings appeared at another Wells Fargo branch,
    asking for help locating his bags and claiming memory problems. Upon
    recognizing him from a circulated photograph, the manager called the police,
    who subsequently arrested Stallings. The Government later secured a one-
    count indictment against Stallings under 
    18 U.S.C. § 1038
    (a)(1), alleging
    “that by placing the bags in the bank branch in the specific manner and under
    the circumstances that he did, he intended to convey false information that
    indicated that an explosive device had been left at the bank.” Prior to trial,
    Stallings requested jury instructions. The district court proposed alternate
    language, and while Stallings originally objected, he declined to object when
    the court proposed a modification. The court ultimately instructed the jury
    that it had to find the following:
    First, that the defendant intentionally conveyed false or
    misleading information;
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    Second, that the information was conveyed under
    circumstances where an imminent threat to personal safety
    could have been believed by a reasonable person; and
    Third, that such information indicated that an activity had
    taken, was taking, or would take place that would constitute a
    violation of [
    18 U.S.C. § 844
    (i)], prohibitions with respect to
    explosives.
    Evidence presented during trial included testimony of four bank
    employees from the Skillman-Abrams branch, a host of responding police
    officers, the bus driver and her son, and witnesses to Stallings’s arrest.
    During closing arguments, the prosecutor made numerous statements
    drawing objections from defense counsel that were overruled by the district
    court. Stallings was ultimately convicted. The district court imposed a forty-
    eight-month sentence of imprisonment, an upward departure from the
    Guidelines in light of Stallings’s criminal history. Stallings timely appealed.
    II
    First, Stallings argues that the evidence was insufficient to sustain his
    conviction under 
    18 U.S.C. § 1038
    (a)(1). Because Stallings preserved this
    issue by moving for acquittal under Federal Rule of Criminal Procedure 29 at
    the close of the Government’s case-in-chief and post-verdict, this court
    reviews his challenge to the sufficiency of the evidence de novo. 1 In applying
    this standard, “we review all evidence in the light most favorable to the
    verdict to determine whether a rational trier of fact could have found that the
    evidence established the essential elements of the offense beyond a
    reasonable doubt.” 2 We accept “all credibility choices and reasonable
    1
    United States v. Harris, 
    740 F.3d 956
    , 962 (5th Cir. 2014) (citing United States v.
    Shum, 
    496 F.3d 390
    , 391 (5th Cir. 2007)).
    2
    
    Id.
     (quoting Shum, 
    496 F.3d at 391
    ).
    5
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    inferences made by the trier of fact which tend to support the verdict.” 3
    “[A]ny conflict in the evidence must be resolved in favor of the jury’s
    verdict.” 4
    It is a crime under 
    18 U.S.C. § 1038
    (a)(1) to engage “in any conduct
    with intent to convey false or misleading information under circumstances
    where such information may reasonably be believed and where such
    information indicates that an activity has taken, is taking, or will take place
    that would constitute a violation of” 
    18 U.S.C. § 844
    (i). 5 Section 844(i)
    makes it a crime to “maliciously damage[] or destroy[], or attempt[] to
    damage or destroy, by means of . . . an explosive, any building . . . used in
    interstate or foreign commerce.” 6 Stallings argues that the Government did
    not meet its burden to prove that the “conduct” identified in the
    indictment— “placing two bags in the lobby of the Wells Fargo Bank”—
    “communicated the presence of a bomb,” or “that a reasonable person might
    actually believe” the bags constituted a threat.
    A
    Stallings contends that there is insufficient evidence to prove beyond
    a reasonable doubt that a reasonable person might believe that the bags
    constituted a threat from Stallings’s conduct of leaving the bags in the bank.
    He argues that the mere act of abandoning bags was innocent conduct of a
    transient individual (who carried his belongings with him) that a reasonable
    3
    United States v. Asibor, 
    109 F.3d 1023
    , 1030 (5th Cir. 1997) (citing United States v.
    Jimenez, 
    77 F.3d 95
    , 97 (5th Cir. 1996)).
    4
    United States v. Moreno-Gonzalez, 
    662 F.3d 369
    , 372 (5th Cir. 2011) (citing United
    States v. Duncan, 
    919 F.2d 981
    , 990 (5th Cir. 1990)).
    5
    
    18 U.S.C. § 1038
    (a)(1).
    6
    
    18 U.S.C. § 844
    (i).
    6
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    person would not believe constituted a threat. Moreover, even “[i]f a
    reasonable person would think the bags were intended as a threat,” Stallings
    argues, “he or she would not think the threat credible.” At most, he
    contends, a reasonable observer would merely think Stallings was “trying to
    make the staff clean up after him again,” or that maybe there was something
    “gross” in the bag.
    The Government responds that Stallings’s background with the bank
    supports the reasonableness of the belief of a threat from Stallings’s conduct
    of leaving the bags in the bank. It references bank employees’ testimony that
    they were aware of the ongoing dispute about Stallings’s account that led to
    his history of aggressive confrontation at the bank; knew Stallings was banned
    from the bank; and were concerned by Stallings’s leaving of the bags in the
    bank lobby. One employee testified, “Seriously, the first thing that came to
    my mind when he just left [the bags] in the lobby was that it might have been
    something that could hurt us.” While it is common for customers to come
    into the bank with luggage, she continued, “anytime . . . it’s just left
    unattended and the customer walks out, for us that’s a major red flag.”
    “[W]hen it comes down to a suitcase or anything bigger, that’s something
    that we have to address right away.” The Government also mentions the
    testimony that Stallings had previously shown two employees a mugshot of
    himself in an unsuccessful attempt to provide photo identification.
    In a sufficiency-of-the-evidence review, this court applies “a rule of
    reason, knowing that the jury may properly rely on their common sense and
    evaluate the facts in light of their knowledge and the natural tendencies and
    inclinations of human beings.” 7 Because “it is not necessary that the
    7
    United States v.
    Holmes, 406
     F.3d 337, 351 (5th Cir. 2005) (internal quotation
    marks omitted) (quoting United States v. Mulderig, 
    120 F.3d 534
    , 547 (5th Cir. 1997)).
    7
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    evidence exclude every reasonable hypothesis of innocence or be wholly
    inconsistent with every conclusion except that of guilt,” 8 we conclude there
    was sufficient evidence to support the jury’s determination that a reasonable
    person would believe that Stallings’s conduct of leaving the bags in the bank
    constituted a threat.
    B
    Stallings also contends that, even if “a reasonable person thought that
    the bags represented a credible threat of [a] terrorist attack,” there is
    insufficient evidence that a reasonable person would think “they were a
    credible threat of explosives specifically.” He correctly argues that the
    “[indicative] verbs—has, is, [and] will—following ‘indicates’ [in § 1038(a)]
    foreclose any prosecution on the basis of” an ambiguous act with nothing to
    suggest the bags’ contents. 9
    Stallings references the testimony of three bank witnesses who agreed
    that they did not know what was in the bags, as in whether the bags contained
    a bomb or some other dangerous substance, such as poison gas or a biological
    agent. Stallings then discusses the subjective actions of the individuals
    present on the day of the incident as proof that they did not have a reasonable
    belief that the bags contained explosives, although he acknowledges that the
    statute does not turn on those employees’ subjective beliefs. The actions on
    which Stallings relies include the bank manager delaying in calling the police
    because there was no “imminent” “physical threat”; the employees
    continuing to conduct business in the bank and permitting customers to enter
    8
    United States v. Moreno-Gonzalez, 
    662 F.3d 369
    , 372 (5th Cir. 2011) (brackets
    omitted) (quoting United States v. Lage, 
    183 F.3d 374
    , 382 (5th Cir. 1999)).
    9
    See 
    18 U.S.C. § 1038
    (a)(1).
    8
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    after Stallings left the bags; and the police lacking the kind of urgency
    normally exhibited for a bomb threat.
    The Government argues that it is commonly understood that the
    reason for the threat of unattended bags is because they “pose a risk of
    explosives being present,” and “[a]fter all, non-explosive items are only
    dangerous to someone who opens or handles the bags.” It cites the testimony
    of multiple bank employees who responded in the affirmative when asked if
    they had “any concern that the bags may contain explosives.”                               The
    Government contends that is why the bank manager called the police, who
    ultimately deployed the bomb squad.
    Given that our review is “highly deferential to the verdict” 10 and
    “limited to whether the jury’s verdict was reasonable, not whether we
    believe it to be correct,” 11 there is sufficient evidence to support the jury’s
    determination that a reasonable person could believe that Stallings’s conduct
    of leaving the bags in the bank indicated the specific presence of explosives.
    While there is evidence to the contrary, “any conflict in the evidence must
    be resolved in favor of the jury’s verdict.” 12 We affirm the district court’s
    judgment as to Stallings’s first issue.
    III
    Second, Stallings argues that the district court erred by declining to
    give four of Stallings’s proposed jury instructions. Because a “district court
    has substantial latitude in framing jury instructions,” we generally review the
    10
    Moreno-Gonzalez, 
    662 F.3d at 372
     (quoting United States v. Harris, 
    293 F.3d 863
    ,
    869 (5th Cir. 2002)).
    11
    
    Id.
     (quoting United States v. Williams, 
    264 F.3d 561
    , 576 (5th Cir. 2001)).
    12
    
    Id.
     (citing United States v. Duncan, 
    919 F.2d 981
    , 990 (5th Cir. 1990)).
    9
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    No. 19-11300
    court’s refusal to give a proposed instruction for an abuse of discretion. 13
    However, “when a jury instruction hinges on a question of statutory
    construction, our review is de novo.” 14                  For reversal, Stallings must
    demonstrate that: (1) the requested instruction was “substantially correct”;
    (2) “the requested issue is not substantially covered in the charge”; and
    (3) “the instruction concerns an important point in the trial such that its
    absence seriously impaired [his] ability to effectively present a given
    defense.” 15
    A
    Stallings proposed, and the district court rejected, the following three
    instructions requiring proof that Stallings intended to communicate the
    presence of a bomb:
    1.       The jury may “convict the defendant if
    he . . . undertook an action with intent falsely to convey that he
    would maliciously damage, destroy, or attempt to damage or
    destroy real or personal property by means of fire or
    explosive”;
    2.       The Government must have proved beyond a
    reasonable doubt “[t]hat the information the defendant sought
    to convey was that an activity had taken, was taking, or would
    take place constituting a violation of 18 U.S.C. 844(i)”;
    3.       “It is not sufficient that he intended to communicate
    some other false or misleading information, but in fact
    communicated the presence of a bomb.”
    13
    United States v. Richardson, 
    676 F.3d 491
    , 506-07 (5th Cir. 2012).
    14
    United States v. Brooks, 
    681 F.3d 678
    , 697-98 (5th Cir. 2012) (brackets and
    internal quotation marks omitted) (quoting United States v. Wright, 
    634 F.3d 770
    , 774 (5th
    Cir. 2011)).
    15
    United States v. Toure, 
    965 F.3d 393
    , 402-03 (5th Cir. 2020) (internal quotation
    marks omitted) (quoting United States v. Daniel, 
    933 F.3d 370
    , 379 (5th Cir. 2019)).
    10
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    The first instruction is an incorrect statement of the law.
    Section 1038(a)(1) requires only that Stallings intentionally convey false or
    misleading information that “indicates that an activity has taken, is taking, or
    will take place that would constitute a violation of” § 844(i). 16 Congress
    chose to word the statute in a way that did not assign an agent to the
    “activity.” As the Government correctly contends, Stallings’s requested
    instruction incorrectly narrows § 1038(a)(1) by requiring “proof that the
    defendant undertake action intending to convey that he is the person who will
    maliciously cause damage or destruction by way of an explosive.” The
    district court did not err in declining the first instruction.
    As for the latter two instructions, both were substantially covered in
    the charge issued. The first and third elements of the charge—requiring that
    the jury must find beyond a reasonable doubt “that the defendant
    intentionally conveyed false or misleading information” and “that such
    information indicated that an activity had taken, was taking, or would take
    place that would constitute a violation of [§ 844(i)], prohibitions with respect
    to explosives”—substantially covered Stallings’s requested instructions.
    Stallings’s second instruction would have replaced the words “such
    information” with “the information the defendant sought to convey.” As
    the Government observes, “[t]here is little daylight between the court’s use
    of” the two phrases because they are “effectively synonymous.”
    The third requested instruction would have clarified the words “such
    information” to mean information that “in fact communicated the presence
    of a bomb,” which the Government correctly argues the charge already did
    by using the word “such” before “information.” Stallings’s own arguments
    regarding the importance of “such” in connecting the two uses of
    16
    
    18 U.S.C. § 1038
    (a)(1).
    11
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    “information” in § 1038(a)(1) support this conclusion. Therefore, the
    district court did not abuse its discretion in declining to issue the latter two
    requested instructions.
    B
    Stallings proposed, and the district court rejected, the following
    instruction requiring proof that Stallings intended to communicate
    reasonably believable information:
    In order to convict the defendant, you must find beyond a
    reasonable doubt that he intended that the information he
    communicated—namely the occurrence of a violation of 18
    U.S.C. 844(i) . . . —be reasonably believable.
    The requested instruction is an incorrect statement of the law. Stallings’s
    unsupported interpretation of § 1038(a)(1) imports the mens rea
    requirement from the first part of the statute—“intent to convey false or
    misleading information”—to the second part of the statute—“where such
    information may reasonably be believed.” 17 The Ninth Circuit rejected this
    interpretation outright in United States v. Castagana. 18 In Castagana, the
    Ninth Circuit held that the phrasing of § 1038(a) “clearly indicate[s] that
    Congress intended to apply an objective standard to the second part of the
    statute, explicitly distinguished from the initial portion to which the explicit
    subjective intent requirement applies.” 19 Moreover, “it makes little sense to
    say that a perpetrator can intend that anything be ‘reasonably believed.’” 20
    The court further determined that although it “need not rely on legislative
    17
    See 
    18 U.S.C. § 1038
    (a)(1).
    18
    
    604 F.3d 1160
    , 1163-64 (9th Cir. 2010).
    19
    
    Id. at 1163
    .
    20
    
    Id.
     (emphasis in original).
    12
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    history because the statute is unambiguous, the legislative history of the
    statute and common sense support this interpretation.” 21
    We agree with the Ninth Circuit’s analysis. The district court did not
    err in declining to issue Stallings’s fourth proposed jury instruction because
    it is not a substantially correct statement of the law.
    IV
    Third, Stallings argues that the district court abused its discretion by
    overruling Stallings’s objections to various statements made by the
    Government in its closing argument, and that the district court plainly erred
    by failing to intervene regarding other allegedly improper statements made
    by the Government in closing.
    For both sets of statements, “we must first decide whether the
    prosecutor made an improper remark,” and if she did, “we must determine
    whether the remark affected the substantial rights of the defendant.” 22
    Regarding improper remarks, “[a] prosecutor is confined in closing
    argument to discussing properly admitted evidence and any reasonable
    inferences or conclusions that can be drawn from that evidence.” 23 “The
    sole purpose of closing argument is to assist the jury in analyzing,
    evaluating[,] and applying the evidence.” 24 In “determining whether a
    prosecutor’s comment was improper, it is necessary to look at the comment
    21
    
    Id. at 1164
    .
    22
    United States v. Alaniz, 
    726 F.3d 586
    , 615 (5th Cir. 2013) (quoting United States
    v. Gracia, 
    522 F.3d 597
    , 600 n.2 (5th Cir. 2008)).
    23
    United States v. Mendoza, 
    522 F.3d 482
    , 491 (5th Cir. 2008).
    24
    
    Id.
     (quoting United States v. Dorr, 
    636 F.2d 117
    , 120 (5th Cir. Unit A Feb. 1981)).
    13
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    No. 19-11300
    in context.” 25 Regarding substantial rights, they are affected when the error
    “affected the outcome of the district court proceedings.” 26                                More
    specifically, “we assess the magnitude of the statement’s prejudice, the
    effect of any cautionary instructions given, and the strength of the evidence
    of the defendant’s guilt.” 27
    A
    We review for abuse of discretion the three sets of statements to which
    Stallings objected and that the district court admitted over his objection. 28
    i
    Prior to closing arguments, when defense counsel was cross-
    examining the supervisor of Corporal Walton—the officer who took the x-
    rays of Stallings’s bags—counsel mentioned that Walton was not testifying
    that day and asked the supervisor if he was aware of anything that would
    prevent Walton from testifying. The supervisor responded that he believed
    Corporal Walton was on a “Brady list,” meaning that “there’s information
    about that officer” regarding “things in his past” “that would make him look
    bad.” Later, in closing arguments, defense counsel noted in passing that the
    prosecution had not called Corporal Walton, despite his role. When the
    prosecution responded, the following exchange occurred:
    [PROSECUTION:] You heard today there was sort of a
    suggestion that Senior Corporal Walton didn’t testify and that
    25
    United States v. McCann, 
    613 F.3d 486
    , 495 (5th Cir. 2010) (quoting United States
    v. Insaulgarat, 
    378 F.3d 456
    , 461 (5th Cir. 2004)).
    26
    
    Id. at 496
     (quoting United States v. Marcus, 
    560 U.S. 258
    , 262 (2010)).
    27
    Alaniz, 
    726 F.3d at 615
     (internal quotation marks omitted) (quoting United States
    v. Gallardo-Trapero, 
    185 F.3d 307
    , 320 (5th Cir. 1999)).
    28
    
    Id.
     (citing United States v. Gracia, 
    522 F.3d 597
    , 600 n.2 (5th Cir. 2008)).
    14
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    you should take something from that. This man put his -- put
    on a bomb suit, not knowing what was in it.
    [DEFENSE]: Objection, bolstering.
    THE COURT: Overruled.
    [PROSECUTION]: This man protects this community for 20
    years because something in a paper --
    [DEFENSE]: Objection, facts not evidence.
    [THE COURT]: Overruled.
    [PROSECUTION]: They’re going to try and suggest that you
    should impugn his actions that day. He had no idea. Nobody
    out there knew what was in those bags except for the man that
    got on the bus, the man that walked away, snickering the whole
    way. “They’re looking for me. I’m going to teach her.”
    Stallings argues that the prosecution’s statements were inflammatory,
    bolstering arguments—appealing directly to the bravery of Walton and
    contrasting his heroism to Stallings, “a despicable man ‘snickering’ about his
    plan to ‘teach’ a lesson to a female teller”—that were irrelevant to the issue
    before the jury. The Government argues these statements were instead “(i) a
    direct response to defense counsel’s attempt to discredit Walton when cross-
    examining his supervisor, and (ii) merely restated evidence in the record.”
    Generally, “it is impermissible for a prosecutor to” bolster a law-
    enforcement witness, i.e., “make a largely emotional appeal to the jury to
    credit . . . officers’ testimony because they are police officers.” 29 However,
    a prosecutor may “present what amounts to be a bolstering argument if it is
    specifically done in rebuttal to assertions made by defense counsel in order
    29
    United States v. Kiekow, 
    872 F.3d 236
    , 254 (5th Cir. 2017) (brackets and internal
    quotation marks omitted) (quoting McCann, 
    613 F.3d at 496
    ).
    15
    Case: 19-11300          Document: 00516755329             Page: 16      Date Filed: 05/18/2023
    No. 19-11300
    to remove any stigma cast upon the prosecutor or his witnesses.” 30
    Prosecutors should still be allowed to “present rebuttal that is appropriate in
    scope and that does not suggest the existence of information not in
    evidence.” 31
    The rebuttal here was appropriate in scope as it responded specifically
    to assertions made by defense counsel in closing to remove stigma cast upon
    Corporal Walton by the defense. Every statement the prosecutor made on
    rebuttal about Walton was in evidence—elicited on redirect by the
    government after defense counsel cross-examined his supervisor.
    Accordingly, the rebuttal was acceptable. Moreover, the statements about
    Corporal Walton were not inflammatory, irrelevant, or impermissible
    bolstering. 32 These statements were not improper remarks.
    ii
    In closing, defense counsel noted that bank employees waited to clear
    the bank, let customers enter after discovering the bags, and remained inside
    themselves, all before the bags were relocated. The prosecution responded
    on rebuttal:
    [PROSECUTION:] A reasonable person who sees the
    Defendant walk in and place the bags at 10:43, who hears the
    Defendant ask to speak to a manager, who then sees the
    30
    United States v. Thomas, 
    12 F.3d 1350
    , 1367 (5th Cir. 1994) (brackets omitted)
    (quoting United States v. Dorr, 
    636 F.2d 117
    , 120 (5th Cir. Unit A Feb. 1981)).
    31
    Kiekow, 
    872 F.3d at 255
    .
    32
    Compare United States v. Aguilar, 
    645 F.3d 319
    , 324 (5th Cir. 2011) (holding
    argument improper when prosecutors said that agents “put their life on the line, protecting
    us and our kids” and therefore “get[] a sad deal” when accused of lying), and McCann, 
    613 F.3d at 494, 496
     (holding argument improper when the prosecution demanded an
    “apolog[y] to NOPD officers who wear bulletproof vests because they have to worry about
    getting shot at on the street and then they come here in court and they get shot at again”).
    16
    Case: 19-11300          Document: 00516755329              Page: 17       Date Filed: 05/18/2023
    No. 19-11300
    Defendant walk across the street, they had the ability to make -
    - and they had to make it. I mean, this isn’t a situation where
    somebody is pointing a gun at them. It’s a different type of
    situation.
    [Defense counsel], evidently, she would do things
    differently. Good for her. These women didn’t go running,
    screaming from the bank. [Defense counsel] evidently would
    have.
    [DEFENSE]: Objection, denigrating the defense.
    THE COURT: Overruled.
    [PROSECUTION]: That’s what [defense counsel] wants you
    to believe they should have done, run screaming from the bank.
    Stallings argues this was “quite plainly a personal attack” that
    undermined defense counsel’s credibility before the jury. The Government
    argues the “comment was a direct response to defense counsel’s argument
    that the bank employees’ failure to run out of the bank showed that they were
    not really afraid.”
    “[N]o prosecutor . . . may impugn the integrity of a particular
    lawyer . . . , without basis in fact, as a means of imputing guilt to a
    defendant.” 33 But the general rule against attacking the integrity of defense
    counsel does not extend to specific attacks on defense counsel’s arguments. 34
    First, the statements at issue did not impugn the integrity of defense counsel
    because they related to how defense might have acted differently if she
    thought the bags contained explosives, with the prosecution commenting
    “[g]ood for her.” Second, Stallings acknowledges that the attack was not
    directed at defense counsel personally, but rather “deflect[ed] a central
    33
    United States v. Valas, 
    822 F.3d 228
    , 245 (5th Cir 2016) (quoting United States v.
    McDonald, 
    620 F.2d 559
    , 564 (5th Cir. 1980)).
    34
    See United States v. Bernard, 
    299 F.3d 467
    , 488 (5th Cir. 2002).
    17
    Case: 19-11300       Document: 00516755329              Page: 18      Date Filed: 05/18/2023
    No. 19-11300
    argument of the defense: that the behavior of bank employees belied any
    serious bomb threat.” 35 Third, the prosecutor’s statement about employees
    not “run[ning] screaming from the bank” is acceptable hyperbole because it
    was an inference based on the evidence. 36 In sum, the remarks were not
    improper.
    iii
    Stallings asserts that the “defense offered three serious challenges to
    the [G]overnment’s proof of the charged offense”: the behavior of the bank
    employees showed no subjective fear of a bomb, the bus driver was in a
    divided state of attention when she heard Stallings’s statements, and the
    testimony of the driver’s son changed. In rebuttal, Stallings alleges, the
    prosecution improperly treated these challenges as personal attacks on the
    witnesses to be rejected as “victim blaming.” The prosecution argued:
    [PROSECUTION:] Like I said, they victim blamed five ways
    from Sunday.
    [DEFENSE]: Objection, denigrating the defense.
    THE COURT: Overruled.
    [PROSECUTION]: It’s easy for the defense to sit here and
    argue after the fact as to how someone should act. That’s easy
    to do. But none of these women had ever been through this
    before, and they did the best they could.
    35
    Cf. 
    id. at 487-88
     (prosecutorial comments referring to various defense arguments
    as a “rabbit trail” and “red herring” held to not have denied defendant a fair trial).
    36
    Cf. United States v. 
    Thompson, 482
     F.3d 781, 785-86 (5th Cir. 2007) (concluding
    “prosecutor’s remarks were not actionably improper” despite “a bit of oratory and
    hyperbole”); Foy v. Donnelly, 
    959 F.2d 1307
    , 1318 (5th Cir. 1992) (concluding inaccurate
    statement implying defendant had criminal history “did not equate to a due process
    violation” when evidence of criminal history had been introduced at trial).
    18
    Case: 19-11300          Document: 00516755329              Page: 19      Date Filed: 05/18/2023
    No. 19-11300
    The Government argues this “was a permissible characterization of
    specific defense arguments that attacked the credibility of government
    witnesses on various grounds.”               Because a prosecutor can present a
    bolstering argument—i.e., make a largely emotional appeal—“if it is
    specifically in rebuttal to assertions made by defense counsel in order to
    remove any stigma cast upon the” prosecution’s witnesses, 37 the “victim
    blaming” remarks were not improper.
    B
    Stallings claims the district court failed to intervene regarding certain
    statements even though Stallings did not object. Unpreserved error is
    reviewed under the plain error standard. 38 Stallings contends that when a
    “prosecutor’s closing argument repeatedly interferes with the defendant’s
    right to a fair trial,” “objections may be of little utility,” and thus this court
    should apply a more relaxed plain error standard. He is incorrect, as we have
    “not [applied] a diluted version of the plain-error standard. 39 So, Stallings
    must show “(1) there was error, i.e., the prosecutor’s remarks were
    37
    See supra note 30 and accompanying text.
    38
    United States v. Aguilar, 
    645 F.3d 319
    , 323 (5th Cir. 2011) (citing United States v.
    Gracia, 
    522 F.3d 597
    , 599-600 (5th Cir. 2008)).
    39
    United States v. Johnson, 
    943 F.3d 214
    , 224 n.3 (5th Cir. 2019) (first citing
    Aguilar, 
    645 F.3d at 323
    ; and then citing Gracia, 
    522 F.3d at 603
    ).
    19
    Case: 19-11300         Document: 00516755329              Page: 20          Date Filed: 05/18/2023
    No. 19-11300
    improper, (2) the error was plain and obvious, and (3) the error affected his
    substantial rights.” 40
    i
    In the prosecution’s initial closing statement , referring to Stallings’s
    videoed, post-arrest statement, the prosecutor argued:
    [PROSECUTION:] When you watch [the videos] several
    times, you’ll start to see certain things, certain comments stand
    out.
    ....
    Again, watch the videos, look at the evidence, take the
    time.
    ....
    Remember his words [in the video]: “No threats ever.
    Oh, no, no threats. I don’t do shit like that at my bank.”
    Really? Can we believe you? What did you do two
    months before that?
    ....
    If these statements existed in a vacuum, sure, there
    might be some credibility to them, but remember what he said
    two days before. Remember what he did two days before.
    He ascribes it to short-term memory loss. That’s all we
    know. He doesn’t explain it, doesn’t say anything more.
    [Fifth Amendment objection by defense counsel]
    [PROSECUTION]: Let me qualify that. He doesn’t state it on
    the video. He doesn’t explain it.
    And [defense counsel] brings up a good point, and I’ll
    shift to that real quickly. Fifth Amendment. The Defendant
    40
    Aguilar, 
    645 F.3d at
    323 (citing Gracia, 
    522 F.3d at 600
    ).
    20
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    No. 19-11300
    doesn’t have to do anything in this case. The Government
    bears the full burden. We accept that burden.
    As this instruction will tell you, it is a heavy burden, it is
    a strict burden, and we accept it. And we have met that burden.
    He doesn’t have to do anything.
    But one note on that. Evidence in this case is his own
    statements. And you can consider those. There is no Fifth
    Amendment protection to the evidence of his statements that
    have been introduced in this case. And that’s why I’m saying
    go back and watch those recordings. They are very, very
    telling. His story doesn’t hold water.
    Stallings argues that the prosecutor “crossed the line by saying ‘[h]e
    doesn’t explain it, doesn’t say anything more’” before defense counsel’s
    objection.     Further, Stallings contends that the prosecutor improperly
    commented on Stallings’s exercise of the Fifth Amendment after defense
    counsel’s objection. The Government argues that instead the prosecutor
    “made a permissible argument about a comment Stallings made in a recorded
    interview—which was properly admitted into evidence—and Stallings’s
    failure to explain further in the video.”            Additionally, the Government
    contends that the prosecutor “properly responded to defense counsel’s
    unfounded Fifth Amendment objection by telling the jury that the
    [G]overnment (not the defendant) has the burden of proof at trial.”
    Generally, prosecutors are prohibited from commenting—directly or
    indirectly—on a defendant’s failure to testify in a criminal case, 41 regardless
    of the “prosecutor’s subjective intent in making the remarks.” 42                      “A
    41
    See Rhoades v. Davis, 
    852 F.3d 422
    , 432-33 (5th Cir. 2017) (quoting United States
    v. Bohuchot, 
    625 F.3d 892
    , 901 (5th Cir. 2010)).
    42
    Gongora v. Thaler, 
    710 F.3d 267
    , 277 (5th Cir. 2013) (per curiam) (citing Jackson
    v. Johnson, 
    194 F.3d 641
    , 652 (5th Cir. 1999)).
    21
    Case: 19-11300        Document: 00516755329               Page: 22       Date Filed: 05/18/2023
    No. 19-11300
    prosecutor’s remarks constitute impermissible comment on a defendant’s
    right not to testify[] if the prosecutor’s manifest intent was to comment on
    the defendant’s silence or if the character of the remark was such that the
    jury would naturally and necessarily construe it as a comment on the
    defendant’s silence.” 43
    As for the prosecutor’s statements pre-objection, given the failure by
    Stallings to cite Fifth Circuit controlling authority on the issue—which
    typically “mean[s] that there was not plain error” 44—the error of the court
    to intervene sua sponte was not plain or obvious. Thus, the pre-objection
    statement cannot constitute reversal.
    As for the comments after the Fifth Amendment objection, by
    emphasizing that the jury focus on “the evidence of [Stallings’s] statements
    that have been introduced in the case” and stating that Stallings’s “story
    doesn’t hold water,” the prosecutor, post-objection, focused more on what
    Stallings said rather than his silence. Consequently, the jury would not
    naturally and necessarily construe those statements as a comment on
    Stallings’s silence. The district court did not plainly err in failing to intervene
    when the Government made them.
    43
    United States v. Johnston, 
    127 F.3d 380
    , 396 (5th Cir. 1997) (citing United States
    v. Collins, 
    972 F.2d 1385
    , 1406 (5th Cir. 1992)).
    44
    United States v. Rodriguez-Parra, 
    581 F.3d 227
    , 231 (5th Cir. 2009) (citing United
    States v. Garcia-Rodriguez, 
    415 F.3d 452
    , 456 (5th Cir. 2005)); see also United States v.
    Segura, 
    747 F.3d 323
    , 330 (5th Cir. 2014) (declining to hold plain error because “Segura
    cite[d] no Fifth Circuit authority that would make the district court’s error clear or
    obvious”).
    22
    Case: 19-11300        Document: 00516755329              Page: 23        Date Filed: 05/18/2023
    No. 19-11300
    ii
    Referring to the bags Stallings left in the bank, the prosecutor stated
    in rebuttal closing:
    Empty bags and a bottle of vodka. There’s no explanation from
    that witness stand as to why there’s empty bags there. None of
    his stuff is in that bag. A bunch of junk is in the bags. Not even
    a bunch.
    Stallings argues this was improper because a “prosecutor’s
    commentary on missing evidence crosses the Fifth Amendment line if the
    missing evidence could only have been provided by the defendant, and only
    Stallings could know why his bags contained so few objects and provide an
    “explanation [of such] from the witness stand.” The Government argues that
    instead the prosecutor “noted the lack of evidence for a specific defense theory
    of the case that counsel argued throughout the trial.”
    Usually “a comment on the failure of the defense to counter or explain
    the evidence presented,” 45 or to present evidence to support a defense or
    theory of the case, is permissible. 46 One of Stallings’s central defenses at
    trial, and arguments on this appeal, is that Stallings was a transient man and
    45
    See United States v. Iredia, 
    866 F.2d 114
    , 118 (5th Cir. 1989) (per curiam) (citing
    United States v. Soudan, 
    812 F.2d 920
    , 930 (5th Cir. 1986) (per curiam)).
    46
    See United States v. Casel, 
    995 F.2d 1299
    , 1308 (5th Cir. 1993) (“Since the
    prosecutor’s comments were intended as a statement that the defense had failed to produce
    any evidence of a defense he was advancing, rather than as a statement about the silence of
    the defendant himself, then the comments cannot form the basis for a reversal.” (citations
    omitted)), vacated on other grounds as to one defendant sub nom. Reed v. United States, 
    510 U.S. 1188
     (1994); Soudan, 
    812 F.2d at 930
     (“The record reflects that the prosecutor was
    not commenting upon appellant’s failure to testify. Rather, he was commenting upon the
    fair and reasonable inferences to be drawn from the evidence which had been presented,
    and the defense theory which had holes in its web. The prosecutor’s comments only served
    to focus that evidence which had been elicited during trial upon the government’s theory
    of the case.”).
    23
    Case: 19-11300          Document: 00516755329            Page: 24       Date Filed: 05/18/2023
    No. 19-11300
    there was nothing unusual about him carrying two duffel bags around. 47 In
    response, the Government commented “that the bags were essentially empty
    and did not contain all of Stallings’s possessions,” as a transient person’s
    would, as Stallings had suggested. The Government argued that Stallings
    provided no explanation for why the bags were empty.
    While Stallings correctly points out that the prosecutor may not
    comment on missing evidence if the defendant is the only knowledgeable
    witness who could have supplied it, 48 Stallings does not provide any support
    for the assertion that he was the only person who could comment on his
    transient nature or why his bags were essentially empty. For example, the
    defense might have presented the testimony of the McDonald’s manager
    who “allowed [Stallings] to stay on the [McDonald’s] property in exchange
    for keeping trespassers off of the land.” Stallings “previously spent many
    hours at the restaurant during the day for shelter and to eat and, on one
    occasion, repaired a sink for the manager.” This manager might have known
    enough about Stallings, his transient nature, and the bags he kept with him to
    testify in support of Stallings.
    The district court did not plainly err in failing to intervene.
    47
    See supra Section II.A.
    48
    See United States v. Sardelli, 
    813 F.2d 654
    , 657 (5th Cir. 1987) (“Where arguably
    favorable evidence other than the defendant’s own testimony is available to him, comment
    upon his failure to produce it may be justified. However, in the instant case, it is quite
    obvious that the prosecutor’s comments referred to Sardelli, since the only knowledgeable
    witnesses other than Sardelli himself had been produced by the Government.” (citations
    omitted)).
    24
    Case: 19-11300    Document: 00516755329           Page: 25   Date Filed: 05/18/2023
    No. 19-11300
    iii
    In the prosecution’s initial closing statement, the prosecutor argued:
    The bank staff, when he walked in, that’s the threat to
    them. They see this man who’s been there before. He’s the
    message. “I’m here. I’m going to leave these bags, and I’m
    going to walk out.”
    They knew him. They knew how he had treated them
    when he said no to them. And remember what they told you,
    the way he acted, his yelling, his profanity, his temper
    tantrums, his abuse of the banks and their personal property,
    his inappropriate sexual gestures. That was his calling card.
    That’s what they saw when that man walked into the bank
    on . . . December the 8th.
    And remember [the two bank employees]? They had
    seen what they termed a mugshot 
    ID.
     It looked like a mugshot.
    So they maybe had some idea what this man was about.
    Stallings now argues that by using the phrase “what this man was about” the
    prosecutor urged the jury to convict Stallings based on a prior arrest or
    general bad character under Federal Rule of Evidence 404(b).            The
    Government responds that the prosecutor “argued that Stallings showed the
    bank employees a mug shot of himself in order to intimidate them and show
    them that he was possibly dangerous,” which “was a proper comment on a
    piece of evidence that was admitted for exactly this purpose.”
    Pre-trial, Stallings sought to exclude the “mug shot” evidence,
    arguing that it was overly prejudicial. The district court overruled the
    objection because it held the photo was “logically related to the offense
    charged” and that the Government did not intend to use it as evidence of
    Stallings’s criminal history not connected to this crime.        Reading the
    25
    Case: 19-11300          Document: 00516755329              Page: 26      Date Filed: 05/18/2023
    No. 19-11300
    challenged comment in context, 49 the prosecutor was not urging the jury to
    convict Stallings on the ground of bad character irrespective of guilt. Rather,
    the prosecutor was arguing that Stallings used the mug shot to tell the bank
    employees “what [he] was about,” leading the bank employees to believe
    Stallings was dangerous. Moreover, Stallings cannot establish plain error
    because he cites no controlling Fifth Circuit authority on the issue. 50
    iv
    In rebuttal closing, the prosecutor argued:
    Going across the street to a location where he could see and just
    waiting. He got what he wanted. He enjoyed every minute of
    it. You heard that the first officer didn’t arrive until
    approximately 11:08. That’s 25 minutes after the Defendant
    walked out of the bank. What in the world was that man doing
    for 25 minutes? I would submit to you, ladies and gentlemen,
    he was just watching and waiting to see if the little game he was
    playing worked. And lo and behold, it didn’t.
    Later, the prosecutor added that Stallings was “the man that got on the bus,
    the man that walked away, snickering the whole way” saying “They’re
    looking for me. I’m going to teach [the teller].” Stallings argues this was an
    improper attempt to inflame the jury’s passion, going “beyond the evidence
    and attack[ing] [Stallings’s] character or veracity.” 51 The Government
    responds that the prosecutor “engaged in a bit of oratory and hyperbole, as
    trial lawyers are w[o]nt to do in closing arguments.” 52 Moreover, the
    49
    United States v. McCann, 
    613 F.3d 486
    , 495 (5th Cir. 2010) (quoting United States
    v. Insaulgarat, 
    378 F.3d 456
    , 461 (5th Cir. 2004)).
    50
    See supra note 44 and accompanying text.
    51
    United States v. Delgado, 
    672 F.3d 320
    , 336 (5th Cir. 2012) (en banc) (citing
    United States v. Anchondo-Sandoval, 
    910 F.2d 1234
    , 1237-38 (5th Cir. 1990)).
    52
    United States v. 
    Thompson, 482
     F.3d 781, 786 (5th Cir. 2007).
    26
    Case: 19-11300          Document: 00516755329              Page: 27      Date Filed: 05/18/2023
    No. 19-11300
    Government argues, the “comment had a basis in the evidence—Stallings
    bragging to the bus driver that he left a bomb in the bank to teach the manager
    a lesson—which would have been clear to the jury from the evidence and
    argument it had already heard” showing Stallings was “pleased with
    himself.”
    While there was evidence to support much of what the prosecutor
    argued, there was no evidence that Stallings was watching the bank for
    twenty-five minutes while “snickering.” “An inference not reasonably
    deducible from the evidence may not be stated.” 53                      Accordingly, the
    prosecutor’s remarks were improper. Also, the failure of the district court to
    intervene was plain and obvious, as Stallings cites a relevant Fifth Circuit case
    for support. 54 As for whether the error affected Stallings’s substantial rights,
    “efforts to inflame jurors through argument that characterizes a defendant in
    the most despicable manner will be seen as creating a high risk of
    prejudice.” 55 However, given that Stallings concedes the sufficiency of the
    evidence on the intent element of § 1038(a), Stallings cannot demonstrate
    that the prosecutor’s statements affected the outcome of the district court
    53
    Hall v. United States, 
    419 F.2d 582
    , 585 (5th Cir. 1969) (citing Luttrell v. United
    States, 
    320 F.2d 462
    , 465 (5th Cir. 1963)).
    54
    
    Id.
     (holding that the “prosecutor could not properly deduce from the fact of a
    wink the inference of an affirmative undertaking by [the witness] to ‘help’ his ‘old
    buddy,’” the defendant, and thus that those comments by the prosecutor were improper);
    see also 
    id.
     (“[The prosecutor’s statement] was supported only by the improper implication
    that there was existent, but unstated, evidence of which the jury did not have the benefit.”
    (citing McMillian v. United States, 
    363 F.2d 165
     (5th Cir. 1966))).
    55
    United States v. Mendoza, 
    522 F.3d 482
    , 495 (5th Cir. 2008).
    27
    Case: 19-11300      Document: 00516755329              Page: 28     Date Filed: 05/18/2023
    No. 19-11300
    proceedings and thus affected Stallings’s substantial rights. 56 Therefore,
    Stallings cannot prevail under the plain error standard.
    v
    During rebuttal closing, the prosecutor argued:
    Did the Defendant intend to create a bomb hoax? His
    actions . . . show he did. His words on the day of show he did.
    Would a reasonable person believe there was a bomb? You
    better believe it. “They’re looking for me. I left a bomb in
    there. I had a problem with a white female teller, and I’m going
    to teach her.” Ladies and gentlemen, I ask that you find this
    man guilty and show him that in the United States of America
    this is a crime.
    Stallings contends that this argument amounts to constructive
    amendment or fatal variance because the indictment named only Stallings’s
    leaving the bags as the “conduct” from which a reasonable person might
    infer the presence of a bomb, while the prosecutor urged the jury to rely on
    Stallings’s statements to the bus driver as the “conduct.” However, as the
    Government correctly contends, the prosecution “never argued or even
    implied to the jury that Stallings’s statements to the bus driver were evidence
    of whether the bank employees would have reasonably feared that there was
    a bomb in his bags.” Before closing, the Government argues, the prosecution
    “had already very clearly told the jury—at great length—that Stallings’s
    statement to the bus driver was evidence of his intent, which Stallings
    concedes on appeal.” Thus, the prosecutor’s statement in closing was mere
    56
    See United States v. Alaniz, 
    726 F.3d 586
    , 615 (5th Cir. 2013) (“To determine
    whether a remark prejudiced the defendant’s substantial rights, we assess the magnitude
    of the statement’s prejudice, the effect of any cautionary instructions given, and the
    strength of the evidence of the defendant’s guilt.” (internal quotation marks omitted)
    (quoting United States v. Gallardo-Trapero, 
    185 F.3d 307
    , 320 (5th Cir. 1999))).
    28
    Case: 19-11300          Document: 00516755329               Page: 29       Date Filed: 05/18/2023
    No. 19-11300
    “rhetorical flourish, a reminder of the most damning piece of evidence
    against Stallings,” and was not improper. Further, because Stallings has
    already conceded the sufficiency of the evidence on the intent element, 57 he
    cannot demonstrate that this comment affected his substantial rights.58
    In sum, Stallings cannot prevail under the plain error standard
    regarding all five of the prosecutor’s remarks to which defense counsel failed
    to object.
    V
    Last, Stallings argues that the district court’s consideration of
    “numerous bare arrest records in its choice of an above-range sentence”
    “flatly contradicts the controlling precedent of this [c]ourt.” Because
    Stallings failed to object to the upward departure from the Sentencing
    Guidelines, we review for plain error. 59
    A district court may not rely on a “bare arrest record” to extend a
    defendant’s sentence. 60 An arrest record is “bare” if it refers “to the mere
    fact of an arrest—i.e., the date, charge, jurisdiction[,] and disposition—
    without corresponding information about the underlying facts or
    circumstances regarding the defendant’s conduct that led to the arrest.” 61
    The Presentence Investigation Report (PSR) assigned Stallings a total
    offense level of 12 and a criminal-history category of VI, for an advisory
    57
    See supra note 55 and accompanying text.
    58
    See supra note 56 and accompanying text.
    59
    United States v. Peltier, 
    505 F.3d 389
    , 392 (5th Cir. 2007), abrogated on other
    grounds by Holguin-Hernandez v. United States, 
    140 S. Ct. 762 (2020)
    .
    60
    United States v. Windless, 
    719 F.3d 415
    , 420 (5th Cir. 2013).
    61
    
    Id.
     (brackets and emphasis omitted) (quoting United States v. Harris, 
    702 F.3d 226
    , 229 (5th Cir. 2012) (per curiam)).
    29
    Case: 19-11300     Document: 00516755329            Page: 30   Date Filed: 05/18/2023
    No. 19-11300
    guideline range of 30 to 37 months’ imprisonment. Paragraph 162 of the PSR
    recommended that the district court impose an upward departure in light of
    Stallings’s criminal history, citing 39 adult convictions and “34 offenses that
    were either dismissed due to pleas in other cases or for unknown reasons.”
    The PSR concedes that the circumstances of the 34 alleged offenses are
    unavailable, making the arrest records for those offenses “bare.”
    The district court departed upwardly from the guideline range, twice
    stating that it imposed a variance “for the reasons stated in paragraphs 162
    and 163 of the [PSR].” However, the court’s comments at sentencing
    clarified that it focused only on Stallings’s adult convictions, not his juvenile
    offenses or unadjudicated conduct. Moreover, the court and the PSR
    specifically referenced the fact that Stallings’s convictions that received
    criminal-history points amounted to a criminal-history score of almost double
    the amount needed for criminal-history category VI. The court thus followed
    the Guidelines’ directive, determined a new offense level and criminal-
    history category of VI—yielding a new Guideline range of 41 to 51 months’
    imprisonment—and imposed a sentence of 48 months’ imprisonment.
    Notably, the court recognized that even “if it were later determined that one
    or more of the points that [Stallings] received in the criminal history was not
    countable for some reason,” it would “impose the same sentence as a
    variance.” Thus, the district court did not plainly err because it did not
    consider Stallings’s bare arrest records at sentencing.
    Even if the court’s brief reference to “the reasons stated in paragraphs
    162 and 163” demonstrated that the district court considered Stallings’s
    unadjudicated conduct, Stallings cannot show that the court’s consideration
    affected his substantial rights. Stallings had 39 adult convictions, with only
    16 receiving criminal-history points. The “scored” convictions gave a score
    of 24, eleven points more than necessary to reach the highest criminal-history
    category, VI. There is nothing to indicate that had the PSR and district court
    30
    Case: 19-11300      Document: 00516755329            Page: 31   Date Filed: 05/18/2023
    No. 19-11300
    completely excluded the 34 unadjudicated offenses, Stallings would have
    received a lower sentence. Stallings’s substantial rights were not affected,
    and he cannot prevail under the plain error standard.
    *        *         *
    For the foregoing reasons, we AFFIRM the judgment of the district
    court.
    31