PRECEDENTIAL

  UNITED STATES COURT OF APPEALS
       FOR THE THIRD CIRCUIT
            _____________

               No. 16-4106
              _____________

     UNITED STATES OF AMERICA

                      v.

       CHRISTOPHER WELSHANS,
                    Appellant
            ______________

 Appeal from the United States District Court
   for the Western District of Pennsylvania
          (D.C. No. 2-15-cr-00015-001)
District Judge: Honorable Donetta W. Ambrose
                _____________

          Argued: January 16, 2018
             ______________

Before: AMBRO, RESTREPO, and FUENTES,
             Circuit Judges.

            (Filed: June 14, 2018)
              ______________
Lisa B. Freeland, Esq.
Renee D. Pietropaolo, Esq. [ARGUED]
1500 Liberty Center
1001 Liberty Avenue
Pittsburgh, PA 15222
       Counsel for Appellant

Soo C. Song
Laura Schleich Irwin, Esq. [ARGUED]
700 Grant Street, Suite 4000
Pittsburgh, PA 15219
       Counsel for Appellee

                       ______________

                 OPINION OF THE COURT
                     ______________

RESTREPO, Circuit Judge.

       Appellant Christopher Welshans was convicted of
distribution and possession of child pornography in violation
of 18 U.S.C. § 2252. In this direct appeal, Welshans raises
two claims. First, he argues that his due process right to a fair
trial was violated because the prosecution informed the jury,
through both evidence and argument, that his child
pornography files included deeply abhorrent videos and
images of bestiality, bondage, and acts of violence against
very young children. Second, Welshans raises a procedural
sentencing claim, challenging the application of the
obstruction of justice enhancement.




                               2
        Regarding his first claim, we agree with Welshans on
two points—that the challenged evidence was inadmissible
under Rule 403 of the Federal Rules of Evidence and United
States v. Cunningham, 

, 391 (3d Cir. 2012), and
that the prosecutor’s closing argument improperly appealed to
the passions of the jury. However, we conclude that the
misconduct did not so infect Welshans’s trial with unfairness
as to violate due process. Therefore, we will affirm his
conviction. As to Welshans’s sentencing claim, we will
reverse and remand for resentencing.

                              I

                              A

       In February 2014, the Pennsylvania Office of Attorney
General determined that child pornography was being shared
by an Internet Protocol (IP) address associated with a
subscriber later identified as Welshans’s aunt.         Law
enforcement agents executed a search warrant on her home on
March 21, 2014 at 7:30 a.m. The agents found no child
pornography, but learned that Welshans, who lived nearby,
used the wireless Internet at his aunt’s house.

       Immediately thereafter, half of the agents went to
Welshans’s house to set up surveillance and to make note of
any people leaving or entering. The other agents quickly
obtained a search warrant.

       Around the same time, Welshans’s aunt called him
with a warning that police officers were “on their way” to his
house, App. 497, and were “looking for stuff” involving his




                              3
computers, App. 495. At 9:30 a.m., Welshans began moving
files into his laptop computer’s recycling bin.

       At 10:10 a.m., agents executed a search warrant at
Welshans’s home. Welshans, who was combative, was
“detained,” handcuffed, and removed from the house. App.
339. He was held by two agents at the rear of a marked
police car, and later detained un-cuffed inside the cruiser.

       Meanwhile, Welshans’s laptop computer continued to
move files into the recycling bin. As explained at trial, this
process could run automatically because, after a user selects
multiple files to drag into the recycling bin, the process runs
until all of the selected files are moved. This process was
interrupted at 11:05 a.m. by an agent, who discovered
Welshans’s laptop and pulled out its battery. By this time,
approximately seven hundred and fifty files had been moved
into the recycling bin. They were easily restored, and none
were lost.

       In total, the Government recovered an extensive
collection of child pornography files from both the laptop and
from Welshans’s desktop computer—over ten thousand
images and hundreds of videos. Welshans did not dispute
that the recovered material was child pornography. Nor did
he dispute that child pornography had been distributed
through a file-sharing network from his laptop.

       Welshans admitted that he was the sole user of his
laptop and desktop computers. (A Government expert
reached the same conclusion based upon a forensic review of
them). Welshans also admitted that he used his aunt’s
wireless Internet, the IP address that distributed the child




                              4
pornography. He conceded that he installed and used a file-
sharing network on his laptop, and that he was at his aunt’s
house on March 20, 2014—the last date that child
pornography files were added to his laptop and the day before
his arrest.

       But Welshans disputed whether he knew that there was
child pornography on his computers. He testified and denied
any such knowledge, but offered “no explanation” for how
child pornography “ended up on [them].” App. 513.

                              B

       As stated above, the Government recovered an
extensive trove of child pornography from Welshans’s
computers. Exactly what the jury heard about the content of
these files is central to this appeal, and so we must describe
this content in detail. See 

n.8
(confronting the same problem).

       This content, as will become clear, was particularly
“loathsome” even within the universe of child pornography
crimes. 

n.10. Its particular nature elicits strong
responses of disgust and anger. Therefore, for the sake of the
reader, we will only summarize the evidence. This summary,
it bears noting, should not be taken as a substitute for the
actual trial evidence, which was far more explicit and which
forms the basis for our Rule 403 analysis.

      The parties addressed the content of the child
pornography to be admitted at trial, in part, via pretrial
motions. Welshans offered to stipulate that the videos and
images recovered constituted child pornography as a matter




                              5
of law. The Government rejected the proposed stipulation.
Instead, it sought to introduce a small subset of the images
and videos recovered and promised not to introduce
exceedingly violent and graphic ones. The Government went
on to explain that, in light of this Court’s decision in

, it had “specifically excluded
bondage” from the proffered videos to be shown to the jury.
App. 52. Providing one deeply disturbing example, the
Government specified that it would not introduce videos
“show[ing] a nine-year-old girl bound with yellow rope on
her arms and legs being sexually abused by both an adult
male and a dog. We’re not showing any of that . . . .” App.
51.

       As to the two videos to be shown to the jury, the
District Court found that they were “prejudicial” and
“disturbing,” but that the unfair prejudice did not outweigh
their probative value. App. 58. The District Court found that
the selected videos were admissible under Rule 403 “[g]iven
that the government is proposing this very limited, highly
condensed and representative sample of the total amount of
evidence that exists and also given the fact that the
government has presented . . . limiting instructions.”
App. 58.

       Pursuant to this pretrial ruling, the Government
showed the jury two video clips, without sound, for
approximately two and a half minutes. The District Court
gave cautionary instructions both before and after playing the
videos and during the charge.

      These two videos, however, were not the only
evidence presented to the jury regarding the nature of the




                              6
child pornography recovered from Welshans’s computers.
While the Government did not show any videos or images it
deemed inadmissible under Cunningham, it did tell the jury
about them—and repeatedly. It introduced both testimony
and exhibits that described horrific sexual acts of bestiality,
bondage, and violence perpetrated on very young children,
including babies.

       To summarize the evidence at issue we begin with
Exhibit 2. This Government Exhibit contained five, detailed,
paragraph-length descriptions of abhorrent acts of bestiality,
bondage, and violence against children. The descriptions
include gruesome references to a young child being sexually
victimized by man and a dog, being forcibly bound with rope,
strapped with a belt, blindfolded, and forced to wear a choker
collar. This Exhibit was sent into the jury room during
deliberations. In addition, an agent read portions of Exhibit 2
aloud to the jury, including references to the child victim
being subjected to bestiality and bondage.

       Other exhibits reiterated the message that Welshans
possessed deeply abhorrent videos and images of child
pornography. The Government introduced disturbing file
names and file paths that described, for example, the rape of a
one year old baby, the anal rape of a child, and a sexual
assault by a dog. These too were sent to the jury room during
deliberations. A few of these file names were circled in red
before the jury. See App. 332 (“I’ll circle it here[.]”). The
prosecutor and witnesses read others aloud to the jury. The
jury also heard that the file names were consistent with their
content. For example, an agent testified that file names
including the terms “1yo, 2yo are indicative . . . of what the
subject matter would be”—child pornography depicting




                              7
sexual assaults perpetrated on one and two year old toddlers.
App. 406.

        Emphasizing the point, the Government elicited
testimony from three separate agents that the videos shown to
the jury were not the worst of the child pornography
recovered. One agent told the jury that there were “worse”
videos depicting “bondage and bestiality.” App. 295.
Another agent testified that he found “child pornography
involving infants.” App. 428. He told the jury that one
thousand five hundred images “depict[ed] the rape or
molestation of toddlers, babies, and infants.” App. 430. He
told the jury that the videos depicted acts of sexual violence
on children, including “bondage” and “penetration of
prepubescent children.” App. 431-32. He testified that what
the jury was shown was not “representative of the full
substance” of the child pornography recovered because there
were “far more violent representations on the computer, far
younger victims on this computer.” App. 442. Another agent
testified that there were “worse images or videos,” in which a
child known to the testifying agent “is bound by rope and
belts and . . . forced to have sex with a dog.” App. 467.

         In addition to this evidence, the Government’s opening
and closing statements also highlighted the horrific nature of
some of the child pornography recovered from Welshans’s
computers. During its opening statement, the prosecutor told
the jury that the videos to be shown were “not nearly the
worse [sic] of this selection” and “not the most violent.”
App. 252-53. In closing, the prosecutor “pull[ed] up Exhibit
2” and asked the jury to “[r]emember some of the things
. . . read to us, some of the horrible, disgusting terms . . . read
to us that the defendant possessed and distributed.” App. 658.




                                8
The Government went on to argue that “[t]here were images
and videos of a little girl, a child being forced to do horrible
things with dogs, a child being tied up, bound, collar around
her neck, naked.” App. 658. The Government argued to the
jury “[w]hat you saw wasn’t the most violent, it wasn’t the
most horrific, it wasn’t the worse of the worse [sic] . . . It was
a small cleaned-up portion just so you as the jurors would
have the evidence . . . .” App. 659.

                                C

         The jury convicted Welshans of distribution and
possession of child pornography. 18 U.S.C. §§ 2252(a)(2),
(b)(1), (a)(4)(B). At sentencing, the District Court applied
numerous Sentencing Guideline enhancements for specific
offense characteristics, including enhancements for material
involving “a prepubescent minor or a minor who had not
attained the age of 12,” for material portraying “sadistic or
masochistic conduct or other depictions of violence; or
. . . sexual abuse or exploitation of an infant or toddler,” and
for the number of files involved. U.S.S.G. §§ 2G2.2(b)(2),
(4), (7)(D).

        The District Court also applied a two-level
enhancement for obstruction of justice. U.S.S.G. § 3C1.1. It
found that the enhancement applied because Welshans moved
files into his laptop’s recycling bin in a “panic” after
receiving a call from his aunt that the police were on their
way to his house. App. 1053. This enhancement increased
the offense level to 39. Welshans had a criminal history score
of zero, which produced a Guideline range of 262 to 327
months. The Court varied downward to offense level 34,
resulting in a final Guideline range of 151 to 188 months. It




                                9
sentenced Welshans to the low end of the Guidelines range:
151 months’ imprisonment and 10 years’ supervised release.
This timely appeal followed.

                               II

       The District Court had jurisdiction under 18 U.S.C.
§ 3231. We have jurisdiction under 28 U.S.C. § 1291 and
18 U.S.C. § 3742. We review an unpreserved prosecutorial
misconduct claim for plain error. Gov’t of the Virgin Islands
v. Mills, 

, 456 (3d Cir. 2016). The plain error
test requires (1) an error; (2) that is “clear or obvious”; and
(3) “affected the defendant’s substantial rights . . . which in
the ordinary case means he or she must ‘show a reasonable
probability that, but for the error,’ the outcome of the
proceeding would have been different.” Molina-Martinez v.
United States, 

, 1343 (2016) (quoting United
States v. Dominguez Benitez, 

, 76, 82 (2004)). If
these conditions are met, we will exercise discretion to
correct the error if it “seriously affects the fairness, integrity
or public reputation of judicial proceedings.” 

States v. Olano, 

, 736 (1993)). We
exercise plenary review of a district court’s interpretation of
the Sentencing Guidelines and review its factual findings for
clear error. United States v. Miller, 

, 75 (3d Cir.
2008).

                               III

       In his first claim, Welshans asserts that the
Government committed prosecutorial misconduct by
informing the jury, through evidence and argument, that the
child pornography recovered included deeply disturbing acts




                               10
of bestiality, bondage, and the violent sexual assault of very
young children. We agree with Welshans that the prosecution
crossed the line. Nevertheless, we conclude that the errors
did not render his trial fundamentally unfair.

                                A

       The Due Process Clause of the Fifth Amendment
guarantees the right to a fair trial including the right to be free
from prosecutorial misconduct. See United States v. Liburd,

, 343 (3d Cir. 2010). Our analysis of a
prosecutorial misconduct claim proceeds in two steps. 

First, we consider whether there was misconduct. “If
so, we proceed to determine whether that misconduct ‘so
infected the trial with unfairness as to make the resulting
conviction a denial of due process,’” taking into account the
entire proceeding. United States v. Repak, 

, 259
(3d Cir. 2017) (quoting 

(quoting
Donnelly v. DeChristoforo, 

, 643 (1974))). We
consider “the prosecutor’s offensive actions in context and in
light of the entire trial, assessing the severity of the conduct,
the effect of the curative instructions, and the quantum of
evidence against the defendant.” Moore v. Morton, 

, 107 (3d Cir. 2001).

                                B

       At the initial step of our analysis, Welshans asserts that
the prosecution committed misconduct in two ways: (1) that it
“systematically inject[ed] inadmissible . . . evidence” at trial,
United States v. Morena, 

, 194 (3d Cir. 2008),
and (2) that the prosecutor’s closing argument crossed the line
by inflaming the passions and emotions of the jury, see, e.g.,




                                11


, 460. We consider each allegation in
turn.

                              1

       The Government may run afoul of the defendant’s due
process right to a fair trial by “systematically injecting
inadmissible . . . evidence” at trial, 

,
 thereby “permeat[ing] the proceedings with prejudice[,]” 

Welshans argues that the Government did so in his
case by repeatedly introducing evidence that the child
pornography recovered involved abhorrent acts of bestiality,
bondage, and the violent sexual assault of very young
children. For the reasons below, we agree.

        The central issue raised by Welshans’s claim is
whether the evidence introduced by the Government was, in
fact, inadmissible. To answer this question, we begin with
the premise that, as a rule, the Government is “entitled to
prove its case free from any defendant’s option to stipulate
the evidence away.” 

(quoting
Old Chief v. United States, 

, 189 (1997)). 1

      1
           In Old Chief, the Supreme Court acknowledged and
reiterated “the familiar, standard rule that the prosecution is
entitled to prove its case by evidence of its choice, or more
exactly, that a criminal defendant may not stipulate or admit
his way out of the full evidentiary force of the case as the
Government chooses to present 

. But
the Court recognized an exception to that rule for proof that a
defendant is a felon and so may not possess a firearm. The
felony conviction is relevant solely to “a defendant’s legal
status, dependent on some judgment rendered wholly




                              12
       We go on to consider, however, that the Government’s
evidence “remains subject to [Federal] Rule [of Evidence]
403,” 

which allows the court to “exclude relevant
evidence if its probative value is substantially outweighed by
a danger of . . . unfair prejudice . . . or needlessly presenting
cumulative evidence,” Fed. R. Evid. 403. A district court has
broad discretion in conducting this analysis, provided that its
reasoning is on the record. See United States v. Bailey, 

, 117 (3d Cir. 2016); United States v. Sampson, 

, 889 (3d Cir. 1992).

       In Cunningham, we held that Rule 403 was violated
when the district court admitted two particularly prejudicial
videos of child pornography. 

.
On the facts of that case, those two videos, which
“portray[ed] bondage or actual violence,” should not have
been admitted. 

       Our Rule 403 holding in Cunningham was based in
part on the District Court’s failure to review the videos
themselves before deciding to admit them, and, in part, on the
“extremely limited” probative value of the two videos. 

391. We reasoned that, while the videos had some
probative value, it was significantly reduced by the fact that


independently of the concrete events of later criminal
behavior charged against him.” 

And the
particulars of that past conviction are completely immaterial
to the present charge before the jury. 

So courts
must allow defendants to stipulate to that fact and obviate
proof of it. 

child pornography videos were in evidence, producing
“diminishing marginal returns.” 

see also 

(noting that “probative value is informed by
the availability of alternative means to present similar
evidence”) (internal quotation marks and footnote omitted).
We also held that the probative value was outweighed, both
because other video clips were admitted and because the
defendant stipulated to the criminal nature of the child
pornography, which “is a factor in the Rule 403 balancing”
that district courts must undertake notwithstanding Old Chief.

n.23, 389-90; see also United
States v. Finley, 

, 492 (3d Cir. 2013) (same).

          As to prejudice, we held that the two videos were
enormously prejudicial. 

.
Reviewing descriptions of the videos (as they were not
provided to the Court), 

we concluded they
generated “intense disgust,” far beyond even other child
pornography, 

(quoting United States v. Curtin, 

, 964 (9th Cir. 2007) (en banc) (Kleinfeld, J.,
concurring)). See also United States v. Loughry, 

, 974 (7th Cir. 2011) (holding that videos depicting “men
raping and ejaculating in the genitals of prepubescent girls, as
well as young girls engaging in sexual acts with each other
. . . [,] have a strong tendency to produce intense disgust”).
Indeed, the two videos stood out because “their violent and
sadistic character likely created ‘disgust and antagonism’
toward [the defendant,] which risked ‘overwhelming
prejudice’ toward him.” 

(quoting United States v. Harvey, 

, 996 (2d Cir.
1993)).




                              14
        Cunningham, Welshans now argues, ought to apply
not only to visual images presented to the jury, but also to
written or testimonial descriptions with the same “violent and
sadistic character.” 

. As we
acknowledged in Cunningham, verbal descriptions are less
vivid than videos. See 

And in that case, we
declined to adopt a per se rule. See 

Nonetheless,
the Government’s introduction of numerous, highly
inflammatory written summaries is significant cause for
concern.

        In Welshans’s case, the Government introduced highly
inflammatory descriptions of child pornography depicting
abhorrent acts of bestiality, bondage, and violence perpetrated
on very young children, including babies.               As in
Cunningham, the probative value of this evidence was greatly
diminished by the availability of other evidence. Most
obviously, the Government showed the jury two video clips—
themselves “prejudicial” and “disturbing,” App. 58—of child
pornography, lasting in total almost two and a half minutes.
The admission of these videos rendered the probative value of
the additional descriptions “minimal.” 

(internal quotation marks omitted). Moreover,
the Government had extensive evidence that did not involve
violent or sadistic content, and Welshans stipulated that the
files recovered were child pornography. See 

n.23;

.

        The evidence at issue was immensely prejudicial.
Reading the descriptions in Exhibit 2 and the related evidence
elicits little more than a visceral response of disgust and
anger. See 

. This point is
seemingly obvious, but it has also been noted by several of




                              15
our sister Circuits. See 

(holding that
the district court committed procedural error under Rule 403
by admitting, without first carefully reviewing every word of,
a written description of a child “engaged in sexual acts of
mutual oral copulation with, and masturbation of, a dog”); 

(Kleinfeld, J., concurring) (concluding that written
descriptions of bestiality were unfairly prejudicial and
reaching the same conclusion as to stories about incest);
United States v. Grimes, 

, 385 (5th Cir. 2001)
(holding unfairly prejudicial written narratives depicting
sexual violence, including “young girls in chains, a young girl
in handcuffs, and references to blood”); 

(holding that descriptions of videos containing adult
bestiality, sadomasochism, and acts involving human waste
would “create disgust and antagonism toward [the child-
pornography defendant]” and “were highly prejudicial and
posed a substantial risk of inflaming the jury”).

       In short, this is the type of “highly reprehensible and
offensive content that might lead a jury to convict because it
thinks that the defendant is a bad person and deserves
punishment, regardless of whether the defendant committed
the charged crime.” 

. Thus, we
agree with Welshans that inadmissible evidence was
repeatedly injected at his trial. See 

.

                              2

       Welshans not only challenges the admission of
prejudicial evidence, but also the prosecution’s closing
argument—the second ground for his due process claim. At
closing, prosecutors “may not cross the line and invite the
jury to render a decision on grounds of bias, passion,




                              16
prejudice, or sympathy.” 

. Rather,
“[p]rosecutors . . . serve in positions of public trust . . . and
must guard against the temptation to draw on jurors’ passions
instead of the evidence, particularly in the heat of trial.” 

n.10. We have repeatedly labeled as improper arguments
that are inflammatory or amount to “appeals for jurors to
decide cases based on passion and emotion arising from
sympathy for the victim.” 

(alteration and internal
quotation marks omitted); see also United States v. Berrios,

, 135 (3d Cir. 2012); 

.

         Welshans argues that the prosecution inflamed the
jury, invoking a visceral reaction, by referencing the
despicable nature of some of the child pornography
recovered—abhorrent depictions of bestiality, bondage, and
violence against very young children. Specifically, during its
closing argument, the prosecutor returned to Exhibit 2 and its
detailed and graphic descriptions of the files. The prosecutor
urged the jury to “[r]emember some of the things . . . read to
us, some of the horrible, disgusting terms . . . read to us [that]
the defendant possessed and distributed.” App. 658. The
prosecutor argued that “[t]here were images and videos of a
little girl, a child being forced to do horrible things with dogs,
a child being tied up, bound, collar around her neck, naked.”

reiterated to the jury that the video
evidence shown to them “wasn’t the most violent, it wasn’t
the most horrific, it wasn’t the worse of the worse [sic] . . . It
was a small cleaned-up portion . . . .” 

inciteful words did nothing more than
appeal to the jury’s raw passions and emotions, compounding
the prejudicial potential of the summaries. Cf. 

(noting that horrific, violent sexual acts




                                17
provoke feelings of “intense disgust”). As such, we agree
with Welshans that the prosecutor crossed the line. Indeed, at
oral argument, the Government conceded that at least some
portion of its closing argument was improper. See Oral
Argument at 23:48 (“agree[ing] that those words should not
have been used”); 

(conceding that “[w]e realize
that it shouldn’t be done”).         Thus, based upon the
combination of the evidence admitted and the closing
argument, we conclude that there was misconduct and that
“these errors were plain—that is, they were clear or obvious.”

.

                               C

       This, however, does not end our inquiry. Having
determined that misconduct occurred, we next consider
whether it rises to the level of a constitutional violation. See

. We consider the severity of the
prosecutorial misconduct, the curative instructions, and the
strength of the evidence to determine whether the trial was
“so infected . . . with unfairness as to make the resulting
conviction a denial of due process.” 

(internal quotation marks omitted). The first two aspects of
the record support Welshans; however, we conclude that the
strength of the evidence is so overwhelming that it outweighs
the other two considerations. 

.

       The misconduct in this case was indeed pervasive.
See, e.g., 

-96. As
described above, the Government repeatedly introduced
exhibits that were read aloud; elicited testimony from various
agents; and argued to the jury that the child pornography




                              18
recovered involved bestiality, bondage, and violent acts
against very young children.

       We next consider the District Court’s curative
instructions, which we presume the jury follows. See 

. “The more severe the misconduct, the less
effective the curative instructions—particularly when . . .
[they] are not given immediately after the misconduct or
when they do not direct the jury to ignore specific instances
of misconduct.” 

. In this case, the
District Court gave several curative instructions regarding the
videos shown to the jury. In contrast, there was no curative
instruction specific to the prejudicial descriptions, which
favors Welshans. See, e.g., 

(noting
that a trial court’s “general instruction was hardly a specific
direction to disregard the [inadmissible] evidence”); 

(stating that a “single boilerplate limiting
instruction” did not cure the erroneous admission of
uncharged “hard core” pornography).

        This brings us to the strength of the evidence. “The
quantum or weight of evidence is crucial to determining
whether prosecutorial misconduct was so prejudicial as to
result in a denial of due process.” 

(alterations and internal quotation marks omitted). In this
analysis, notably, we do not merely consider the sufficiency
of the evidence. See 

. We also take
into account whether the misconduct “shaped the
development of the record evidence . . . or the trial strategy
pursued by either party.” 

. Where the
defense raised involved witness credibility, we take into
account how the prosecutorial misconduct may have “affected
the jury’s credibility determination.” 

.




                              19
        The evidence against Welshans was overwhelming.
There is no dispute as to any of the following facts: his laptop
and desktop computers contained child pornography.
Welshans was the sole user of the two computers. He
installed and used a file-sharing network on his laptop. The
laptop’s file-sharing network was used to distribute child
pornography. Welshans used the Internet account from which
the child pornography was distributed. He was at his aunt’s
house, where the files were shared, on the last day his laptop
accessed child pornography.

       Despite all of this, Welshans asked the jury to find—
on the basis of his credibility alone—that he did not know
that there was child pornography on his computers. We
cannot hold that the Government’s misconduct affected this
credibility determination. Rather, Welshans’s claim that he
lacked knowledge of the child pornography was
“irreconcilable with both the testimony and the physical
evidence at trial.” 

. Welshans provided
no plausible explanation for how child pornography could
have been amassed and stored on his computers without his
knowledge. Child pornography was found on both his laptop
and desktop computers. The number of files was immense—
over ten thousand images and hundreds of videos. Not only
that, Welshans tried to rid himself of the evidence at the last
minute—albeit ineptly—when his aunt called to tell him that
the police were en route “looking for stuff” involving his
computers. App. 495. In short, the overwhelming strength of
the evidence “weighs decisively against [Welshans] and is
dispositive in this case.” 

. Thus, we
conclude that, despite the prosecutorial misconduct that
occurred, his trial was not fundamentally unfair. See 

                              20
                              IV

      In his second claim Welshans challenges a procedural
aspect of his sentencing hearing—that the District Court
improperly applied the obstruction of justice enhancement.
We agree and will remand for a new sentencing hearing at
which the enhancement shall not apply.

                               A

       Section 3C1.1 of the Sentencing Guidelines provides a
two-level enhancement for obstruction of justice where, inter
alia, the defendant “willfully obstructed or impeded, or
attempted to obstruct or impede, the administration of justice
with respect to the investigation, prosecution, or sentencing of
the instant offense of conviction.” U.S.S.G. § 3C1.1. As we
have explained “‘[w]illfully’ in this context means
‘deliberately or intentionally; in other words, not negligently,
inadvertently, or accidentally.’” United States v. Douglas,

, 152 (3d Cir. 2018) (quoting United States v.
Jenkins, 

, 287 (3d Cir. 2001)). However, “the
conduct to which [Section 3C1.1] applies is not subject to
precise definition.” U.S.S.G. § 3C1.1, cmt. n.3. “Obstructive
conduct can vary widely in nature, degree of planning, and
seriousness.” 

“is not an invitation to
consider every instance in which a defendant acted in a
blameworthy fashion.” 

.

         To better delineate the bounds of this enhancement, the
Sentencing Commission has provided examples in
Application Notes 4 and 5. See U.S.S.G. § 3C1.1, cmt. n.3.
We give these Application Notes “controlling weight unless
. . . plainly erroneous or inconsistent with the regulation,”




                              21
something the Government does not here allege. United
States v. Landmesser, 

, 313 (3d Cir. 2004)
(internal quotation marks and citation omitted); see also
United States v. Knobloch, 

, 372 (3d Cir. 1997).

       Application Note 4 generally gives “examples of the
types of conduct to which this adjustment is intended to
apply.” U.S.S.G. § 3C1.1, cmt. n.3. Application Note 5
provides that “some forms of obstructive conduct—including
fleeing from arrest, providing incomplete or misleading
information during a presentence investigation, and making
false statements while not under oath—do not merit the
enhancement.” 

(citing U.S.S.G.
§ 3C1.1, cmt. n.5).

       The specific note before us is Application Note 4(D).
It provides that the obstruction of justice enhancement applies
to some, but not all, acts of destroying or concealing
evidence. U.S.S.G. § 3C1.1, cmt. n.4(D). Specifically,
Application Note 4(D) states that Section 3C1.1 applies to

              destroying or concealing . . .
              evidence that is material to an
              official investigation or judicial
              proceeding (e.g., shredding a
              document or destroying ledgers
              upon learning that an official
              investigation has commenced or is
              about     to    commence),      or
              attempting to do so; however, if
              such        conduct      occurred
              contemporaneously with arrest
              (e.g., attempting to swallow or




                              22
             throw      away    a     controlled
             substance), it shall not, standing
             alone, be sufficient to warrant an
             adjustment for obstruction unless
             it results in a material hindrance
             to the official investigation or
             prosecution of the instant offense
             or the sentencing of the offender;

       As is particularly relevant here, if the destroying or
concealing (1) “occurred contemporaneously with arrest,” but
(2) did not “result[] in a material hindrance to the official
investigation or prosecution” of the case, then Section 3C1.1
does not apply. 

argues that the both premises of Application
Note 4(D) obtain and, therefore, that Section 3C1.1 is
inapplicable. We address each premise in turn.

                             1

      We begin by asking whether Welshans was destroying
or concealing evidence “contemporaneously with arrest”
when he moved files into his laptop’s recycling bin in a
“panic” after receiving a call from his aunt that the police
were on their way to his house. App. 1053.

      In this phrase, the term “contemporaneous” is highly
context-dependent. While courts use the term “to mean




                             23
‘close in time,’ it is a relative term.” Small Bus. in
Telecomms. v. FCC, 

, 1022 n.9 (D.C. Cir.
2001). Indeed, depending on the context, “contemporaneous”
could mean minutes or years. 

see also
Contemporaneous, The Random House Dictionary of the
English Language (2d ed. 1987) (defining contemporaneous
as “living or occurring during the same period of time;
contemporary”).

       That the Sentencing Commission chose such a flexible
term is unsurprising given the text of Application Note 3. It
observes that “the conduct to which [Section 3C1.1] applies is
not subject to precise definition” and that its applicability is
best determined through examples. U.S.S.G. § 3C1.1, cmt.
n.3. Just so, we draw upon illustrative cases to better
understand the meaning of “contemporaneous” for the
purposes of Application Note 4(D).

       The most closely analogous case, cited by Welshans, is
United States v. Norman, 

, 1400 (10th Cir.
1997). There the defendant ran a stop sign, causing a car
accident. 

He immediately left his car and began
to hide an item in the dirt, as lay witnesses looked on. 

The defendant was still kicking the dirt when the
police arrived. 

the district court applied
the obstruction of justice enhancement, but the Tenth Circuit
reversed.     It    held     that    the    defendant    acted
“contemporaneously with arrest” under Application Note
4(D) even though he began hiding the item before the police
arrived because he “understood that his failure to stop caused




                              24
the accident, and that he would be questioned and detained as
soon as the police arrived.” 

2

       Also illustrative is United States v. Savard, 

, 1078 (11th Cir. 1992). The police knocked and
announced their intent to search a boat, and the conspirators
hid a Coast Guard boarding slip in a shoe. 

The agents then entered the boat where some agents
questioned the conspirators and one agent left to investigate
further. 

agent returned, they searched the ship,
and ultimately arrested the conspirators. 

Circuit held that hiding the boarding slip occurred
“contemporaneous with arrest” for the purposes of
Application Note 4(D). 

This was so even though
there was an interval—consisting of the investigation and
search—between the act of hiding the boarding slip and the
defendant’s subsequent arrest. See 

(citing Savard for this point); see also Dissenting Op. at 5
(acknowledging that “there was a gap between the obstruction
and arrest”). Therefore, under Savard, “contemporaneous”
must be defined more flexibly than the dissent’s position that




       2
         The dissent emphasizes that in Norman, as noted
above, the defendant was kicking the dirt when the police
arrived. But Welshans too was continuing to delete files
when the police entered his home. While the dissent would
make much of the fact that Welshans was not “actively”
concealing evidence, Dissenting Op. at 4; see also 

the
Guidelines make no such distinction between active and
passive concealment.




                              25
the conduct necessarily occur “just prior to arrest.”
Dissenting Op. at 3 (citation omitted). 3

       In contrast, our sister Circuits have held that
defendants who acted while detained, away from the scene,
post-arrest did not act “contemporaneously with arrest.” See
United States v. Hinojosa, 

, 416 (5th Cir. 2014)
(defendant made phone call from jail post-indictment); United
States v. Massey, 

, 821 (11th Cir. 2006)
(defendant concealed drugs while handcuffed to hospital bed
post-arrest); United States v. Waldon, 

, 608-09
(6th Cir. 2000) (defendant made telephone call from jail six
hours post-arrest); United States v. Hankins, 

,
935 (10th Cir. 1997) (defendant made phone call from jail
two days post-arrest); but see United States v. Morales-

      3
          In Savard, the obstruction was “contemporaneous”
despite a gap in time between the conduct and arrest. In the
face of this holding, the dissent attempts to distinguish the
gap in time in Savard from the analogous gap in time in
Welshans’s case based upon the physical position of the
police. Yet in both cases, the police were closing in on the
defendants physically. In Savard, the police were knocking at
the hatch of the boat. In Welshans’s case, agents were
surveilling his house and the arresting agents were en route.
Indeed, the dissent acknowledges that the surveilling agents
had already arrived when Welshans acted, Dissenting Op. at
5, although it elsewhere elides this point by stating that
Welshans acted before agents “arrived to search,” Dissenting
Op. at 1, 4, 5 (emphasis added). Moreover, the impact on
Welshans was the same as in Savard—he acted in “panic,” as
the District Court found. App. 1053.




                             26
Sanchez, 

, 640 (5th Cir. 2010) (where defendant
made phone call from the back seat of a patrol car, the
Government conceded that he acted “contemporaneously with
arrest”). 4

       Unlike these cases, Welshans moved files into his
laptop’s recycling bin in a “panic” after his aunt called to tell
him that the police were on their way to his house. App.
1053. Around the time that Welshans acted, agents were
surveilling his house; other agents arrived soon after with a
search warrant, “detained,” handcuffed, and held him in a
police cruiser. App. 339. Under these circumstances, as in
Norman and Savard, we conclude that Welshans acted
“contemporaneously with arrest” for the purposes of
Application Note 4(D). 5

       4
          Welshans’s case does not require us to rule on the
propriety of these decisions.
       5
          The dissent characterizes our holding as resting
solely on the fact that Welshans acted “upon learning of an
investigation likely to result in arrest,” and suggests that the
result would be the same regardless of the interval between
the defendant’s conduct and arrest. Dissenting Op. at 5. This
is not so. Rather, we rely on the totality of the circumstances,
including that Welshans acted in a “panic,” App. 1053, when
he believed arrest was imminent, as agents were surveilling
his house, and shortly before he was detained.

      Furthermore, our holding will not produce the
consequences invoked by the dissent. Critically, the dissent
focuses on one element of the Application Note—obstructive
conduct that occurs “contemporaneously with arrest”—even




                               27
                               2

       The question that follows is whether Welshans’s
conduct “result[ed] in a material hindrance to the official
investigation or prosecution of the instant offense.” U.S.S.G.
§ 3C1.1, cmt. n.4(D). Section 3C1.1 does not define
“material hindrance.” Application Note 6, however, defines a
phrase with a common word, “material evidence.” U.S.S.G.
§ 3C1.1, cmt. n.6 (“‘Material’ evidence, fact, statement, or
information, as used in this section, means evidence, fact,
statement, or information that, if believed, would tend to
influence or affect the issue under determination.”) (emphasis
added). Consistent with this text, the Fifth Circuit has held
that a material hindrance “requires, at the least, an actual,
negative effect on either the course or result of the
investigation.” 

(emphasis
added). We agree.

        In its brief, the Government did not argue that placing
files in the recycling bin amounted to a “material hindrance.”
Rather, it took the position that Application Note 4(D) was


though the Guidelines also require that the conduct “result[]
in a material hindrance to the official investigation.” U.S.S.G.
§ 3C1.1 cmt. n.4(D). This is a conjunctive test: if the conduct
occurs contemporaneously with an arrest but does not
materially hinder the investigation, it does not qualify for the
enhancement. As noted above, the deleted files were easily
restored. Thus, our reading is not as far-reaching as the
dissent suggests; a defendant is not “exempt from the . . .
enhancement” if he permanently destroys evidence, even if
his actions begin as soon as he “believe[s] he would be
arrested.” Dissenting Op. at 5.




                              28
“inapplicable”     because     Welshans        did     not   act
“contemporaneously with arrest.” Gov’t Br. 28; see also 

material hindrance was not “the proper
question” before the Court). This was a sound tactical choice,
as none of the files in the recycling bin were lost. To the
contrary, several witnesses testified that files in a computer’s
recycling bin are easily restored merely by clicking the
mouse.

        Still, at oral argument the Government appeared to
contest the “material hindrance” issue for the first time. In
response to questions from the Court, the Government argued
that its investigation was materially hindered because it took
“extra time” to verify that no files were lost, and because the
issue was referenced at trial (notably, as evidence of guilt).
See Oral Argument at 28:53 (“It took us time to go back
through and determine [that no files were lost]”); 

(“Again we had to take the extra time to go ahead and look at
those things. Plus it was a contested issue at trial.”); see also
App. 642 (consciousness of guilt jury instruction).

        Because this contention was raised for the first time at
oral argument, it is waived. See, e.g., United States v.
Chapman, 

, 135 n.9 (3d Cir. 2017); In re Grand
Jury, 

, 105 n.4 (3d Cir. 2011). But even if we
were to reach the Government’s argument, we would hold
that there was no material hindrance.

       The Government’s interpretation of “material
hindrance” is far too broad. All acts of destroying or
concealing evidence require at least some “extra time” to
investigate and are potential trial issues. For example,
Application Note 4(D) explicitly cites “throw[ing] away a




                               29
controlled substance” as an example of an act that may not
warrant the obstruction of justice enhancement. U.S.S.G.
§ 3C1.1, cmt. n.4(D). If this act is contemporaneous with
arrest and there is no “material hindrance,” then the
enhancement does not apply.            

the
Government’s definition, there would always be a “material
hindrance.” For any time a defendant throws away drugs, the
investigation takes at least some “extra time,” and the act is a
potential trial issue.

       Illustrative cases further reinforce the point that the
Government’s interpretation of “material hindrance” is overly
broad. At least one court has held that throwing cocaine out
of a car window during a high speed chase does not,
“standing alone, warrant the enhancement.” United States v.
Giacometti, 

, 700 n.1 (7th Cir. 1994).

       In another example, Morales-Sanchez, the defendant
made a phone call from the back of a patrol car, asking his
friend to report a truck as 

. The police
then received a false report. 

Even so, the Fifth
Circuit held that the false report was not a “material
hindrance” because there was no evidence that it “had any
actual effect on the investigation.” 

the
application of Section 3C1.1.

       Likewise, in Savard, the Eleventh Circuit held that the
defendant did not materially hinder the investigation by
hiding a Coast Guard boarding slip because “Customs agents
already possessed all of this information.” 

. This was so even though concealing the slip forced
the agents to independently verify the information it
contained. Id.; see also United States v. Perry, 

,




                              30
312 (6th Cir. 1993) (holding that there was no material
hindrance where the defendant placed robbery proceeds in a
box and told a relative to hide it).

       Just so, the Government was not materially hindered
when Welshans moved files into the recycling bin. The files
were easily restored, and none were lost. The fact that this
process took “extra time” and was raised at trial as evidence
of guilt in no way amounts to a “material hindrance” under
Application Note 4(D). Thus, we conclude that the Section
3C1.1 enhancement was improperly applied.

                              C

       Finally, we conclude that remand is necessary. “By
improperly applying the obstruction of justice enhancement,
the District Court did not accurately calculate [Welshans’s]
Guidelines range.” 

. Although the
Court imposed a downward variance, we “cannot be sure”
that the erroneous calculation did not affect the sentence
imposed. 

In other words, “[t]he present case is not
that rare case where we can be sure that an erroneous
Guidelines calculation did not affect the sentencing process
and the sentence ultimately imposed.” United States v.
Langford, 

, 219 (3d Cir. 2008). Thus, we will
reverse the imposition of the two-level enhancement under
Section 3C1.1 and remand for resentencing.

                              V

      We will affirm the judgment of conviction, vacate the
judgment of sentence, and remand for resentencing.




                              31
FUENTES, Circuit Judge, concurring in part and dissenting
in part.

       I agree with the majority’s prosecutorial misconduct
analysis.    I disagree, however, with my colleagues’
conclusion that the District Court erred in applying a
sentencing enhancement for obstruction under U.S.S.G. §
3C1.1 because Welshans’ attempted deletion of child
pornography files from his laptop computer occurred
“contemporaneously with arrest.”

       No one disputes that, on the morning Welshans was
found in possession of thousands of child pornography
images and videos, Welshans’ aunt warned him that agents
were en route to his home. After being warned, but 40
minutes before agents arrived to search his home, Welshans
highlighted incriminating files on his laptop and selected
“delete.” Each file then sequentially moved to the laptop’s
recycle bin. Thereafter, Welshans stashed the laptop between
couch cushions so it would not be discovered. Importantly,
the process of moving files to the recycle bin occurred
automatically and outside of Welshans’ presence.

       With this context in mind, it cannot be that Welshans’
purposeful conduct—which, again, occurred well before
agents arrived to search his home—falls within the
“contemporaneously with arrest” exception to § 3C1.1’s
obstruction enhancement. By holding otherwise, the majority
permits that limited exception to swallow the rule that
obstructive conduct triggers an enhanced sentence.

       Because Welshans clearly attempted to destroy
material evidence, I would affirm the District Court’s




                             1
imposition of the obstruction enhancement. I therefore
respectfully dissent from Part IV of the majority’s opinion.

                                I.

       As the majority observes, § 3C1.1 provides for a two-
level sentencing enhancement when “the defendant willfully
obstructed or impeded, or attempted to obstruct or impede,
the administration of justice with respect to the investigation,
prosecution, or sentencing of the instant offense of
conviction.” The enhancement applies where, inter alia, a
defendant attempts to destroy or conceal “evidence that is
material to an official investigation or judicial proceeding.” 1
In this regard, § 3C1.1 notes, by way of non-exhaustive
example, that “shredding a document or destroying ledgers
upon learning that an official investigation has commenced or
is about to commence” qualifies for an obstruction
enhancement. 2

       Nevertheless, if otherwise covered conduct “occurred
contemporaneously with arrest,” that conduct, “standing
alone,” is insufficient to warrant an obstruction enhancement
“unless it results in a material hindrance to the official
investigation or prosecution of the instant offense or the
sentencing of the offender.” 3 Relying on this exception,
today the majority holds that the obstruction enhancement
was improper because Welshans acted “contemporaneously


1
    U.S.S.G. § 3C1.1, cmt. n.4(D).
2
    

                                2
with arrest” and the Government was not materially hindered
since the files were easily restored. I disagree.

        The majority notes that “contemporaneous” is “a
flexible term” which “could mean minutes or years.” 4
However, “‘[c]ontemporaneous’ for purposes of § 3C1.1 has
been construed to encompass obstructive conduct just prior to
arrest, as when the police are at the defendant’s door.” 5
Accordingly, “this limited exception [] include[s] only
conduct admitting a spontaneous or visceral or reflexive
response occurring at the point arrest becomes imminent.” 6
“It does not . . . apply to [] cool and deliberate actions.” 7

       In finding that Welshans acted “contemporaneously
with arrest,” the majority relies heavily on the Tenth Circuit’s
decision in United States v. Norman. 8 However, Norman is
distinguishable. In Norman, the defendant caused a car
accident and attempted to hide drugs in dirt in front of his car.
While it is true that the defendant “began hiding the [drugs]


4
    Maj. Op. at 24.
5
  United States v. Hankins, 

, 935 (10th Cir.
1997) (citation omitted); see also United States v. Perry, 

, 312 (6th Cir. 1993) (holding that a defendant’s
“hurried attempt to conceal [] evidence as the police stood at
the front door was ‘contemporaneous with arrest’”).
6
  United States v. Lamere, 

, 515 n.6 (8th Cir.
1992).
7
    Id.
8
    

(10th Cir. 1997).




                                3
before the police arrived,” 9 in concluding that he acted
“contemporaneously with arrest,” the Court stressed that the
defendant was still attempting to conceal evidence when the
police arrived. 10 In this regard, the Court observed that the
defendant “was [] ‘kicking at the dirt’ in front of his car when
the first officer” arrived and that he “was arrested within
moments of that arrival.” 11

       Here, unlike the defendant in Norman, Welshans was
not actively engaged in obstructive conduct when the agents
arrived to search his home. Rather, 40 minutes before the
agents arrived, Welshans chose a large group of files, selected
“delete,” and hid the laptop between couch cushions. What’s
more, as the majority observes, after Welshans’ conduct, the
transfer of files to the recycle bin “could run automatically”
without his presence at the computer. 12 Thus, in my view,
Welshans’ conduct was not the type of reflexive action
excepted from the enhancement. To the contrary, Welshans’
conduct appears calculated and purposeful.

       The majority also relies on the Eleventh Circuit’s
decision in United States v. Savard. 13 In Savard, the Court
held that a defendant’s concealment of evidence in his shoe as
agents knocked on the hatch of his boat occurred
“contemporaneously with arrest,” even though the defendant

9
    Maj. Op. at 24.
10
     

.
11
     

Op. at 4.
13
     

(11th Cir. 1992).




                                 4
was not arrested until later. 14 Crucially, however, the
obstructive conduct in Savard occurred when the agents
announced themselves at the defendant’s hatch door.
Moreover, while there was a gap between the obstruction and
arrest in that case, it was undisputed that agents remained on
the boat for that entire period. In contrast, here, Welshans
acted 40 minutes before agents arrived to search his home.
Further, while it is true that agents were surveilling
Welshans’ home around the time of his conduct, none of
those agents entered his home until the search warrant was
executed, 40 minutes after Welshans acted.

        Finally, on a practical level, interpreting
“contemporaneously with arrest” to capture Welshans’
conduct could produce absurd results.        The following
hypothetical, of which there are myriad variations, is
illustrative.   Suppose that, like Welshans, a defendant
unsuccessfully tried to destroy evidence after learning that
agents were en route. Further suppose that the defendant
believed he would be arrested when the agents arrived.
However, unlike our case, suppose that the agents had a car
accident and were delayed until the next day. Under today’s
holding, our hypothetical defendant’s failed attempt to
destroy evidence would have occurred “contemporaneously
with arrest”—and thus would be exempt from the obstruction
enhancement—even though the agents were delayed.

       Simply, today the majority indicates that—so long as
there is no material hindrance—obstructive acts taken upon
learning of an investigation likely to result in arrest occur
“contemporaneously with arrest.” I cannot agree with such a

14
     

1078–79.




                              5
result. While our Court has not defined “contemporaneously
with arrest,” I disagree with the majority that Welshans’
obstructive conduct meets this limited exception. I would
therefore find that the “material hindrance” requirement is
inapplicable and the District Court was permitted to apply the
obstruction enhancement even though the Government
recovered the files before they were permanently erased.

                             II.

        For the foregoing reasons, while I join my colleagues
in affirming Welshans’ conviction, I dissent from the decision
to reverse the application of the obstruction enhancement and
remand for resentencing.




                              6