OPINION
This case arises out of the assault of Robert Paxton by Mount Clemens Police Department officers and the officers’ subsequent conspiracy to conceal this assault. Following a joint trial of five defendants, the jury convicted Patrick Carson of deprivation of rights under color of law, conspiracy to obstruct justice, and obstruction of justice. The jury found Robert Hey guilty of obstruction of justice and perjury. Peter Jacquemain was found guilty of obstruction of justice, and Robert Jacque-main was found guilty of conspiracy to obstruct justice. A fifth officer, Daniel Gerkey, was acquitted of all charges.
Carson, Hey, and the Jacquemains appeal their convictions on various grounds, and Carson appeals his sentence. Additionally, the government appeals the sentence of Robert Jacquemain. For the reasons set forth below, we affirm the convictions of Carson, Hey, and the Jac-quemains. Additionally, we affirm Carson’s sentence. We also conclude that any errors in calculating Robert Jacque-main’s sentence were harmless and that his sentence was not substantively unreasonable. We therefore affirm Robert Jac-quemain’s sentence.
I.
On the evening of July 27, 2002, Robert Hey, an off-duty Mount Clemens police officer, was driving in his vehicle with a friend, Brian Pike. Hey and Pike were on their way to the Mount Clemens police station when Hey noticed that a vehicle was tailgating his own. The driver of the tailgating vehicle, Robert Paxton, believed that Hey had cut him off as he was approaching a traffic light. This encounter lead to escalating road rage, with both parties tailgating, cutting each other off, and braking abruptly.
Hey then placed a call on his cell phone to the Mount Clemens police station and requested assistance, stating that someone *571 was trying to run him off the road. At the time, Mount Clemens police officers Duane Poucher, Patrick Carson, Peter Jacque-main, Robert Jacquemain, and Daniel Ger-key were on duty at the station. The five officers ran to their patrol cars. Poucher and Gerkey left the station first, in one patrol car; Robert Jacquemain then departed with Carson, and Peter Jacquemain drove alone. Poucher and Gerkey reached Hey’s vehicle and passed it in pursuit of Paxton’s vehicle. Paxton eventually pulled over in a residential neighborhood, on the right side of the street, and Poucher, the driver of the patrol car, parked at an angle behind Paxton’s vehicle. Carson and Robert Jacquemain arrived next, parking on the side and slightly in front of Poucher’s patrol car. Peter Jacquemain stopped his car behind Poucher’s, and Hey parked on the left side of the street.
According to the testimony of Poucher, upon exiting his patrol car, Robert Jacque-main ran to Paxton’s vehicle, opened the driver’s side door, pulled Paxton out of the vehicle, and threw Paxton on the ground, head first. 1 Other officers also approached Paxton’s vehicle. Poucher then exited his patrol car and observed the four other officers crouched around Paxton, holding him down. Then, in view of several neighborhood residents — Tracey Anderson, Heather Lane, and Joseph Burkhardt — the officers beat Paxton. Paxton did not resist the officers; instead, he shielded himself and pled with the officers to stop. Poucher testified that Carson struck Paxton at least twice, and Poucher himself admitted that he kicked Paxton two or three times in the groin area. The bystanders — Pike, Anderson, Lane, and Burkhardt — testified, with varying degrees of detail, that they saw the officers punching and kicking Paxton while he was on the ground. The bystanders did not, however, specifically identify any officers who hit Paxton. Additionally, two bystanders reported that the officers were yelling profanities at Paxton, and Anderson testified that the officers told Paxton “that will teach him to go up against a police officer.”
Robert Jacquemain, the only officer who testified at trial, painted a different picture of the incident. According to Jacquemain, Paxton exited his vehicle on his own, waved his clenched fists at the officers, and did not obey when Jacquemain told him to get down. When Paxton came toward him, Jacquemain, in fear of his own safety, tackled him to the ground. Jacque-main testified that Paxton resisted arrest and struggled with the officers. Additionally, Jacquemain denied punching or kicking Paxton.
Eventually, the officers handcuffed Pax-ton and put him in a patrol car. 2 Robert Jacquemain and Carson drove Paxton to the Mount Clemens police station. Hey and Pike exited their vehicle only after Paxton had been handcuffed and taken away from the scene. Anderson, one of the neighborhood residents, testified that the remaining officers and Pike lingered at the scene for a few minutes, talking, smoking, and laughing. The officers then returned to the police station. At the police station, Paxton was handcuffed and booked. Paxton was eventually taken to the hospital for treatment of his injuries. He had a number of abrasions and laeera- *572 tions on his face; his right eye was bruised, and he received stitches.
When Poucher returned to the station, he found Robert Jacquemain and Hey in the squad room. Poucher testified that Robert Jacquemain told him that “we’re going to say that he got out of the car, we’re going to say that he came at us.” Poucher interpreted this to mean that Pax-ton had been physically injured, and, thus, the officers were going to report that Pax-ton was the aggressor to avoid “get[ting] in trouble for beating him up.” According to Poucher, the officers had discussions regarding their reports, and he was given a copy of Carson’s report as a template, so that the reports would coincide with one another. Each officer’s report, with the exception of Hey’s, indicated that Paxton was the aggressor. The reports of Carson, Poucher, Peter Jacquemain, and Robert Jacquemain all stated that Paxton exited his vehicle, charged at the officers in a threatening manner, and struggled with the officers. Hey’s report only recounted his road rage incident with Paxton and merely noted that he observed Paxton’s vehicle parked near the patrol cars.
Raymond Langley, a Mount Clemens detective, prepared a warrant request based on these reports. The warrant request recommended that criminal charges be brought against Paxton for felonious assault with a motor vehicle, resisting arrest, and fleeing and eluding. The county prosecutor authorized the warrant and prepared a formal felony complaint.
On October 3, 2003, a preliminary examination was held at the Macomb County District Court to ascertain whether there was sufficient evidence to proceed with criminal charges against Paxton. 3 The prosecutor called Carson and Robert Jac-quemain as witnesses. Both officers testified that Paxton exited his ear in an aggressive fashion and resisted arrest. 4
Paxton subsequently filed a civil lawsuit against the city and the officers. Poucher testified that, when he spoke with Robert Jacquemain about Paxton’s lawsuit, Jac-quemain said that “we needed to stick to the story about [Paxton] getting out of his vehicle.” In response to the civil suit, a supervisor at Mount Clemens Police Department launched an internal investigation of the officers. Poucher testified that he thereafter spoke with Carson and Robert Jacquemain and confirmed that he would “stick to the fabricated story.” 5 Additionally, the FBI began to investigate the incident. During an interview with an FBI agent in March 2003, Robert Jacque-main again asserted that Paxton exited his vehicle on his own, waving his fists. Jac-quemain told the agent that he did not see any officers strike or kick Paxton.
In August and September 2003, a federal grand jury investigated the incident. When called to testify, Hey stated he saw nothing and heard nothing with respect to Paxton’s arrest. Hey testified that he did not see how Paxton was removed from his car; rather, he only saw Paxton in the rear of the patrol car after he had been taken into custody. Hey further stated that he *573 saw no officers on the scene during the arrest, until Peter Jacquemain walked toward his vehicle after Paxton was in custody. Hey recalled that, when he and Pike were sitting in the vehicle, they discussed the fact that there was “fighting” going on at the scene.
On May 26, 2004, a grand jury returned a nine-count second superseding indictment against Carson, Hey, the Jacque-mains, and Gerkey. Count I alleged that Carson, the Jacquemains, and Gerkey assaulted Paxton, thereby depriving Paxton of his constitutional rights under color of law, in violation of 18 U.S.C. § 242. Count II charged Carson, the Jacquemains, Ger-key, and Hey with conspiring to cover up the beating of Paxton, in violation of 18 U.S.C. § 371. Counts III through VI alleged that Carson, the Jacquemains, and Gerkey obstructed justice by filing false police reports, in violation of 18 U.S.C. § 1512(b)(3). Count VII charged Hey with obstructing justice by giving false and misleading grand jury testimony, in violation of 18 U.S.C. § 1503. 6 Count VIII charged Hey with perjury, in violation of 18 U.S.C. § 1623, for providing materially false information to a grand jury. Finally, Count IX alleged that Hey obstructed justice, in violation of 18 U.S.C. 1512(c)(2), for providing false and misleading testimony to a grand jury. 7
On June 9, 2004, the joint trial of Carson, Hey, the Jacquemains, and Gerkey commenced. The jury found Carson guilty on Counts I, II, and III (deprivation of rights, conspiracy, and obstruction of justice). Hey was convicted on Counts VIII and IX (perjury and obstruction of justice). Peter Jacquemain was convicted of Count V (obstruction of justice) and acquitted on Counts I and II (deprivation of rights and conspiracy). Robert Jacquemain was convicted on Count II (conspiracy to obstruct justice) and acquitted on Counts I and IV (deprivation of rights and obstruction of justice). Gerkey was acquitted of all charges.
After the trial concluded, Robert Jac-quemain filed a motion for judgment of acquittal, pursuant to Federal Rule of Criminal Procedure 29, which Hey joined. Hey also filed a motion for judgment of acquittal, as well as a motion for a new trial pursuant to Federal Rule of Criminal Procedure 33, which Robert Jacquemain and Carson joined. Peter Jacquemain likewise filed a motion for judgment of acquittal, which Robert Jacquemain and Hey joined. The district court, issuing three orders, denied all of the motions.
The district court sentenced Carson to a term of imprisonment of 33 months. Hey and the Jacquemains were sentenced to three years of probation with six months of home confinement, and Hey was sentenced to an additional six months of community confinement. Each defendant filed a timely notice of appeal. The United States filed a timely notice of appeal of Robert Jacquemain’s sentence.
II.
The Jacquemains, Carson, and Hey contend that, during closing argument, the prosecutor committed plain error when he made improper comments regarding the guilty plea of Poucher. Specifically, defendants argue that the prosecutor “repeatedly and deliberately urg[ed] the jury that *574 Poucher’s guilty plea to conspiracy was evidence that the conspiracy had in fact taken place.” In response, the government argues that the comments were not plainly erroneous, and, even if comments did constitute plain error, they did not affect the defendants’ substantial rights.
Whether statements made by a prosecutor amount to misconduct and whether such statements render a trial fundamentally unfair are mixed questions of law and fact, which we review
de novo. United States v. Francis,
Where, as here, a defendant failed to make an objection below, the claim of prosecutorial misconduct is reviewed for plain error.
Gardiner,
The comments to which the Jaeque-mains, Carson, and Hey object occurred in succession near the end of the prosecutor’s closing argument. The prosecutor stated,
And you’ll hear a lot about this deal, this deal that Mr. Poucher got. Well, ask yourselves, as you’re hearing about this deal, why is Mr. Poucher, a veteran police officer, going to step up and admit that he committed three felonies if they didn’t actually happen? If they didn’t happen, what kind of deal is that? What kind of deal is that?
And why is Poucher going to admit to committing three felonies when the best, the best he can receive from the United States government is a recommendation of at least a year in prison? If these felonies didn’t happen, why would he take that medicine? Ask yourselves that when you’re hearing about Mr. Poucher.
None of the defendants objected to these statements; accordingly, we evaluate them for plain error.
A.
It is well established that the guilty plea of a co-defendant or co-conspirator is never admissible as substantive evidence of a defendant’s guilt.
United States v. Sanders,
As we have previously explained, “[i]n examining prosecutorial misconduct, it is necessary to view the conduct at issue within the context of the trial as a whole.”
United States v. Beverly,
Poucher’s plea was first discussed during opening statements. Clearly anticipating attacks on Poucher’s credibility, the prosecutor stated during his opening argument, “You’ll probably hear ... Poucher is a cooperator, he’s got a deal with the government so he’ll say anything, shouldn’t trust him. Fine. We’ll prove that these officers were over the line and they knew it through their own actions .... ” Indeed, in his subsequent opening argument, Carson’s attorney recounted the reduced sentence Poucher might obtain for cooperation and told the jurors, “you decide if you want to trust [Pouch-er’s] testimony beyond a reasonable doubt.” Later, during direct examination of Poucher, the government introduced evidence of Poucher’s guilty plea without objection. The defense attorneys, accordingly, cross-examined Poucher regarding the guilty plea, clearly intending to attack his credibility on this ground.
Thus, when we consider the trial record as a whole, we can infer that the prosecutor’s closing argument remarks were intended to address Poucher’s credibility, in anticipation of the attacks on his credibility that would follow in the subsequent closing arguments made by the defense. The prosecutor suggested as much just before making the allegedly improper remarks: “And you’ll hear a lot about this deal [in the defense’s closing arguments], this deal that Mr. Poucher got.” Indeed, in the closing arguments that followed, defense counsel repeatedly attacked Poucher’s credibility with the evidence of his plea agreement. While the prosecutor’s reference to whether the felonies in fact happened was improper, the error was not clear or obvious, given the overall tenor and import of the remarks about Poucher’s plea.
B.
Even if the comments did constitute plain error, they must have affected the defendants’ substantial rights in order to warrant a new trial.
Gardiner,
As this court has noted, “ ‘[a] guilty plea entered by a co-defendant can be especially prejudicial if the plea is made in connection with a conspiracy to which the remaining defendants are charged.’ ”
Christian,
In any case, any prejudice resulting from the comments was “cured, or at least minimized, by curative instructions to the jury.”
Carter,
'In sum, this factor weighs against finding that the prosecutor’s comments affected defendants’ substantial rights, as the comments likely did not mislead the jury and the district court admonished the jury not to consider Poucher’s guilty plea as evidence of the guilt of his co-defendants.
The prosecutor’s remarks were clearly “mere isolated remarks, incapable of infecting the entire trial.”
Carter,
The prosecutor repeated his questionable remarks three times, indicating that the comments were made deliberately. More importantly, however, “there is no indication that they stemmed from a deliberate plan to inflame the jury as opposed to unduly-zealous advocacy,”
United States v. Shalash,
The total strength of the evidence against the accused, the final factor we must consider in determining whether the remarks affected defendants’ substantive rights, weighs in favor of the government, as the evidence against defendants was sufficiently strong “such that the improper arguments likely had no impact on the outcome of the trial.”
Modena,
In sum, having considered the four flagrancy factors,
see Carter,
C.
Finally, we further note that the prosecutor’s remarks, even if erroneous, were not so severe as to “ ‘seriously affect[ ] the fairness, integrity or public reputation of judicial proceedings.’ ”
Carter,
III.
Carson contends that the district court erred when it failed to adopt the exact wording of his proposed jury instruction with respect to one element of Count I (deprivation of rights under color of law, in violation of 18 U.S.C. § 242). Carson requested the following instruction:
In determining whether the force was reasonable, you must consider the fact that police officers are often forced to make split second judgments about the amount of force that is necessary in a particular situation.
As Carson’s counsel explained, this language is drawn directly from
Graham v.
Connor,
As trial courts have broad discretion in drafting jury instructions, we review those instructions only for abuse of discretion.
United States v. Jamieson,
The district court’s refusal to deliver Carson’s proposed jury instruction requires reversal only “if that instruction is (1) a correct statement of the law, (2) not substantially covered by the charge actually delivered to the jury, and (3) concerns a point so important in the trial that the failure to give it substantially impairs the defendant’s defense.”
United States v. Daniel,
The district court gave extensive instructions with respect to the third element of Count I, under which the jury was to determine whether “defendants’ conduct ... deprived the alleged victim, Robert Paxton, of some right secured or protected by the constitution or laws of the United States; here, the right to be free from the use of unreasonable force by one acting under color of law.” The court explained the term “unreasonable force” as follows:
The term unreasonable force means force that has no legitimate law enforcement purpose. A law enforcement officer is justified in using only that amount of force which is reasonably necessary to arrest someone, prevent escape, or defend himself or another from bodily harm. He may not, however, use more force than is reasonably necessary to accomplish these purposes.
In this case, you must determine whether the government has proved beyond a reasonable doubt that the force used against Robert Paxton was unreasonable under all of the circumstances. In other words, you must determine whether a *579 defendant used an amount of force reasonably necessary to arrest Robert Pax-ton, prevent escape, or defend himself or another against bodily harm, or whether instead the defendant used more force than reasonably necessary to accomplish these purposes.
In determining whether the government has proved beyond a reasonable doubt that the use of force was unreasonable, the defendant’s use of force is reviewed from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.
With these instructions, the district court amply conveyed the import of Graham to the jury.
Pursuant to the standard articulated in Graham, “[t]he ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene.”
IV.
Peter Jacquemain argues that the evidence presented at trial was insufficient to sustain a conviction against him for obstruction of justice, in violation of 18 U.S.C. § 1512(b)(3), as charged in Count V.
8
We review
de novo
a challenge to the sufficiency of the evidence supporting a criminal conviction.
United States v. Kelley,
The statute Jacquemain was charged with violating provides, in relevant part, “[wjhoever knowingly ... engages in misleading conduct toward another person, with intent to ... hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense” shall be fined, imprisoned, or both. 18 U.S.C. § 1512(b)(3). Thus, in order to obtain a conviction for obstruction of justice under 18 U.S.C. § 1512(b)(3), the government must prove that the defendant (1) knowingly and willfully engaged in misleading conduct toward another person, (2) with the intent to hinder, delay, or prevent the communication of information to a federal official, (3) about the commission or the possible commission of a federal crime.
United States v. Ronda,
As in his motion for judgment of acquittal before the district court, Peter Jacque-main concedes on appeal that the evidence was sufficient to establish the first and third elements of the offense. Jacque-main, however, argues that the evidence was insufficient to establish that the misleading conduct was committed with the intent to hinder, delay, or prevent communication of truthful information about the possible federal offense to a federal law enforcement officer. 9 Specifically, Jacque-main contends that, because his misleading report was prepared contemporaneously with the incident — which was six months before the federal investigation began— the government failed to establish the requisite federal nexus to sustain his conviction. This argument is without merit.
Although this circuit has never considered the issue, other courts have examined and rejected similar “lack of federal nexus” arguments. As the Eleventh Circuit has noted on more than one occasion, “§ 1512(b)(3) does not require a specific intent to mislead federal officials.”
Ronda,
Thus, where, as here, the government has established that all police officers in Michigan receive training regarding the consequences of the use of excessive force, a reasonable jury could conclude that Peter Jacquemain knew that writing a misleading report to cover up the use of excessive force might result in a federal investigation. At trial, the government read into evidence a joint stipulation stating that the training given to all officers in Michigan “included instruction that if officers use excessive force they could be prosecuted in state or federal court.” The government also introduced into evidence Jacquemain’s community college transcript and police academy training records, which indicate that he had received this training. Additionally, Poucher testified that he understood that it is illegal for a police officer to assault a citizen “under color of law,” and, moreover, he understood that the intent behind writing the misleading reports was to avoid the repercussions for assaulting Paxton under color of law. As the district court noted, the jury could infer from this testimony and evidence that, at the time Peter Jacquemain penned his false police report, he intended to avoid a possible federal prosecution for using excessive force.
Jacquemain, however, argues that
Arthur Andersen LLP v. United States,
In rejecting this precise argument, the Eleventh Circuit emphasized the differences between § 1512(b)(2) — the statute at issue in
Arthur Andersen
— and § 1512(b)(3).
Ronda,
The government, accordingly, has presented sufficient evidence from which a reasonable jury could find that Peter Jac-quemain’s intent was to hinder the communication of truthful information to federal law enforcement officers when he provided misleading information to federal law enforcement officers.
Y.
Hey challenges the sufficiency of the evidence supporting both his conviction for obstruction of justice pursuant to 18 U.S.C. § 1512(c)(2) and his conviction for perjury under 18 U.S.C. § 1623. Both convictions stem from the false testimony Hey provided on September 18, 2003, before a grand jury. When called to testify, Hey stated he saw nothing and heard nothing with respect to Paxton’s arrest. 10 Hey testified that he did not see how Paxton was removed from his car. Rather, Hey claimed he only saw Paxton in the rear of the patrol car after he had been taken into custody. He further stated that he saw no officers on the scene during the arrest, until Peter Jacquemain walked toward his vehicle after Paxton was in custody. 11 Hey recalled that, when he and Pike were sitting in the vehicle, they discussed the fact that there was “fighting” going on at the scene.
The testimony of Brian Pike — the passenger in Hey’s vehicle — starkly contrasted with that provided by Hey. At trial, Pike, who was sitting in the passenger seat while Hey sat in the driver’s seat, testified that they followed Paxton’s vehicle through a residential neighborhood until it came to a stop on the right-hand side of the road. Pike stated that Hey’s vehicle stopped on the left side of the road, from where he had an unobstructed view of Paxton’s vehicle and the police car to its left. He further noted that the street lights, headlights, and flashing lights on the police cars illuminated the scene. In *583 deed, Pike saw Paxton’s exit from his vehicle: He stated that saw police officers reach into Paxton’s vehicle, pull Paxton out of the car head first, and take Paxton to the ground. Pike testified that he saw the officers surround Paxton and observed their “arms going up and down, striking blows like a punching or grabbing motion.” This scene, Pike estimated, lasted for about a minute. Duane Poucher and the neighborhood eyewitnesses corroborated Pike’s testimony indicating that the officers beat Paxton, unprovoked.
Against this factual backdrop, we consider, in turn, each conviction challenged by Hey.
A.
In order to establish a perjury conviction pursuant to 18 U.S.C. § 1623, the government must prove that the defendant (1) knowingly made, (2) a materially false declaration, (3) under oath, (4) in a proceeding before or ancillary to any court of the United States.
United States v. Lee,
Viewing the facts in the light most favorable to the prosecution, it is clear that there is ample evidence from which a rational reasonable jury could conclude that Hey gave false grand jury testimony. Hey repeatedly denied that he saw anyone on the scene until Peter Jacquemain walked toward him, after Paxton had been taken into custody. Hey “saw nothing” and “heard nothing” throughout the incident. Yet, the passenger in Hey’s vehicle, Pike, sitting inches away from Hey, saw and heard a significant fracas, which he described in detail at trial. Moreover, the neighborhood residents, viewing the incident from various angles and distances, were also able to describe the scene in detail.
Initially, Hey contends that his perjury conviction cannot stand because the grand jury was investigating the identity of persons who may have committed and caused the commission of the civil rights violation, and Hey aided this investigation by identifying the officers present at the scene, whom Hey saw, he claims, after Paxton was taken into custody. However, that Hey accurately testified as to which officers were present at the scene does not relieve Hey of his obligation to truthfully disclose what happened during the incident. The grand jury was attempting to discern what force had been used, which officers used force, and whether this force was reasonable under the circumstances. Hey, however, claimed he saw and heard nothing until after the incident was over.
Additionally, Hey argues that the record is devoid of any evidence that he was in a position to see the incident. This argument is clearly meritless, as “[s]ubstantial and competent circumstantial evidence by itself may support a verdict.” Id. at 418 (citation and quotation marks omitted). Indeed, the jury instructions conveyed this to the jurors, who were told, “[t]he law makes no distinction between the weight that you should give to either [direct or circumstantial evidence], or says that one is any better evidence than the other.” As noted above, the government presented sufficient evidence from which a reasonable jury could draw the conclusion that, given that a number of other witnesses, including the passenger in Hey’s car, saw the incident, Hey was giving false testimony when he claimed to have seen nothing and heard nothing.
Finally, Hey argues that his statements were not material to the grand jury’s investigation, apparently because
*584
the statements did not result in the grand jury’s termination of its investigation and the grand jury received truthful answers from others who testified. As we have explained, however, “a false declaration satisfies the materiality requirement if a truthful statement might have assisted or influenced the grand jury in its investigation.”
Id.
at 417 (quoting
United States v. Swift,
Hey has not sustained his heavy burden, as it is clear that a rational jury could conclude that he provided materially false testimony to the grand jury.
B.
Pursuant to 18 U.S.C. § 1512(c)(2), “whoever corruptly ... obstructs, influences, or impedes any official proceeding, or attempts to do so,” is subject to criminal liability.
12
Hey first contends that the “nexus requirement” has not been satisfied. Pursuant to this requirement, a “defendant’s conduct must ‘have a relationship in time, causation, or logic with the judicial proceedings’; in other words, ‘the endeavor must have the natural and probable effect of interfering with the due administration of justice.’ ”
United States v. Reich,
Hey also reiterates his argument that there is no direct evidence that he could observe the incident from his vantage point inside his vehicle. As explained supra, there is ample circumstantial evidence from which a jury could conclude that Hey did, in fact, observe the incident but simply lied to the grand jury about it. Accordingly, Hey’s sufficiency of the evidence challenge to his § 1512(c)(2) conviction fails.
VI.
After the trial, Hey filed a motion to set aside his conviction, as well as a request for an evidentiary hearing or a new trial pursuant to Federal Rule of Criminal Procedure 33. Hey’s request for an evidentia-ry hearing was premised on the discovery of a “signed document wherein Mr. Pax-ton, weeks
before
the trial and arguably within his civil attorney’s help, specifically detailed and itemized his injuries, costs and damages.” This document — a restitution request Hey received from the Probation Department — allegedly would prove that Paxton perjured himself at trial. The district court denied Hey’s motion on the following grounds: (1) Hey did not identify
*585
the allegedly false testimony provided by Paxton; (2) the new evidence was not uniquely in the government’s possession as required by
Brady v. Maryland,
In order to prevail on a Rule 33 motion for a new trial, a defendant must show the following: “(1) the new evidence was discovered after the trial; (2) the evidence could not have been discovered earlier with due diligence; (3) the evidence is material and not merely cumulative or impeaching; and (4) the evidence would likely produce acquittal.”
United States v. Seago,
Thus, the district court did not abuse its discretion in denying Hey’s Rule 33 motion.
VII.
Carson challenges the district court’s sentence of 33 months imprisonment. We review a district court’s sentencing determination for reasonableness, using a deferential abuse-of-discretion standard.
Gall v. United States,
— U.S. —,
A sentence is procedurally unreasonable if a district court commits a significant procedural error, “such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence.”
Gall,
The district court determined that Carson’s base offense level was 20, resulting in *586 an advisory Guidelines range of 33 to 41 months imprisonment. The court sentenced Carson to the low end of the Guidelines range, 33 months.
In his initial brief to the court, Carson challenges only the substantive reasonableness of his sentence. Specifically, Carson contends that his sentence resulted in an unwarranted sentencing disparity and the district court failed to give appropriate weight to this disparity. See 18 U.S.C. § 3553(a)(6) (stating that the sentencing judge shall consider “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct”). Carson’s tried codefendants, Hey and the Jacquemains, were sentenced to three years of probation with six months of home confinement, and Hey was sentenced to an additional six months of community confinement. Poucher, who pleaded guilty to deprivation of rights under color of law, conspiracy to defraud the United States, and obstruction of justice, was sentenced to two years of probation on each count, running concurrently.
Although it is true that § 3553(a)(6) requires a sentencing judge to consider “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct,” this court has explained that “this factor concerns
national
disparities between defendants with similar criminal histories convicted of similar criminal conduct — not disparities between codefendants.”
United States v. Conatser,
To be sure, as Carson notes, during the sentencing hearing, the district court noted that it was more concerned with the conduct that occurred after the assault— the cover-up — than with the actual assault itself. Thus, Carson argues, there is an unwarranted disparity in the sentences, as his tried co-defendants were convicted of charges related to the cover-up, not the underlying assault. This is not a tenable argument, particularly when one considers the district court’s comments during the Jacquemains’ sentencing hearing:
Number Six [of the § 3553(a) factors] is the need to avoid unwarranted sentence disparities among defendants with similar records, and in this case, I have given Defendant Patrick Carson, whom I believe to have been by far the most culpable defendant in this case[,] a significant sentence; Defendant Robert Hey, convicted of several counts of perjury and obstruction of justice received probation with six months of community *587 corrections and six months home confinement, and I see Robert and Peter Jaequemain as slightly less culpable than Robert Hey in this case.
Thus, the district court was well aware of the disparities among the defendants’ sentences and found Carson to be “most culpable” — a reasonable conclusion, given that he was convicted of more offenses than the other defendants.
In his reply brief, Carson raises an entirely new argument: The district court calculated his sentence incorrectly in applying an enhancement for obstruction of justice pursuant to § 3C1.1. We are therefore precluded from considering it.
See United States v. Campbell,
The district court calculated and considered the applicable Guidelines range, considered the relevant factors listed in 18 U.S.C. § 3553(a), and considered Carson’s arguments for a sentence below the advisory range, which it rejected. Carson’s within-Guidelines range sentence is accorded a presumption of reasonableness,
Rita,
VIII.
Robert Jaequemain was convicted of conspiracy to obstruct justice, for which the district court sentenced him to three years of probation and six months of home confinement. The government appeals Jacquemain’s sentence, contending that it is both substantively and proeedurally unreasonable.
Under U.S.S.G. § 2X1.1, the base offense level for conspiracy is set at the base offense level of the substantive offense, “plus any adjustments from such guideline for any intended offense conduct that can be established with reasonable certainty.” U.S.S.G. § 2X1.1. Section 2J1.2 provides a base offense level of 12 for obstruction of justice. U.S.S.G. § 2J1.2 (2001). However, § 2J1.2(c) further explains, “[i]f the offense involved obstructing the investigation or prosecution of a criminal offense, apply § 2X3.1 (Accessory After the Fact) in respect to that criminal offense, if the resulting offense level is greater than that determined above.” Pursuant to § 2X3.1, the base offense level is set at “6 levels lower than the offense level for the underlying offense.”
Applying § 2X3.1, the district court looked to § 2H1.1 and determined that 12 was the proper base offense level. The court enhanced the offense level by 6 because “the offense was committed under color of law.” U.S.S.G. § 2Hl.l(b). The court next increased the offense level by two, pursuant to § 3C1.1, an obstruction of justice enhancement, “because when the defendant engaged in his misleading activity, he knew that the offense he was assisting in covering up included obstructing the investigation.” Thus, according to the district court, Jacquemain’s base offense level was 20. The district court then subtracted 6 levels, pursuant to § 2X3.1, resulting in a total offense level of 14 and a Guidelines range of 15 to 21 months.
The government requested an additional two-level enhancement under § 3C1.1 for Jacquemain’s false testimony at trial. The court declined to apply this, explaining, “I didn’t find his testimony in court to be obstructive in any way. I think he told what he could and did it as best he could and I don’t believe an enhancement is appropriate based on his testimony.” The district court also refused to apply a re *588 straint of victim enhancement under § 3A1.3.
The court then noted that it thought a three-level § 5K2.20 reduction for aberrant behavior was appropriate, resulting in an offense level of 11; however, the court also stated that, even without this departure, a sentence below the Guidelines range was warranted. The court then discussed the § 3553(a) factors extensively and concluded that a below-Guidelines range sentence was appropriate. The court sentenced Jacquemain to three years of probation, including six months of home confinement, and 100 hours of community service.
A. Procedural Reasonableness
The government contends that the district court erred in (1) refusing to apply the § 3C1.1 perjury enhancement, (2) declining to apply a § 3A1.3 restraint of victim enhancement, and (3) granting a downward departure under § 5K2.20.
1. Section 3A1.3 enhancement
Pursuant to § 3A1.3, “[i]f a victim was physically restrained in the course of the offense,” the district court must increase the offense level by two. The district court declined to apply this enhancement to Robert Jacquemain’s Guidelines calculation, just as it did in Carson’s earlier sentencing hearing. The court explained its reasons for denying the enhancement in Carson’s sentencing hearing: “[I]t seems to me to be ... kind of piling on to find he was visibly restrained. In addition, there was an ongoing arrest, some restraint was appropriate.” The court found that this enhancement would be “duplicative of the underlying offense” for which Carson was already being charged. This court reviews the district court’s interpretation of the Guidelines
de novo,
and its factual findings for clear error.
United States v. Tatum,
The district court’s conclusion that a § 3A1.3 enhancement would be inappropriate because it would be “piling on” and because there was an ongoing lawful arrest implicates both legal and factual issues. In
United States v. Clayton,
Whether the § 3A1.3 enhancement should apply in this case is less clear. The district court’s factual findings are cursory. While typically remand for additional factual findings would be appropriate, we conclude that remand is unnecessary here.
In response to the government’s § 3A1.3 argument, Jacquemain argues that any error was harmless because the district court also erred in applying the § 3C1.1 enhancement for obstruction of justice, and the errors thus cancel each other out. *589 The court applied “two additional levels under 3C1.1 because when the defendant engaged in his misleading conduct, he knew that the offense he was assisting in covering up included obstructing the investigation.” This was, however, incorrect. Pursuant to the § 3C1.1 application note 7:
If the defendant is convicted of an offense covered by ... § 2J1.2 (Obstruction of Justice), [or] ... § 2X3.1 (Accessory After the Fact), ... this adjustment is not to be applied to the offense level for that offense except if a significant further obstruction occurred during the investigation, prosecution, or sentencing of the obstruction offense itself (e.g., if the defendant threatened a witness during the course of the prosecution for the obstruction offense).
§ 3C1.1, cmt. n. 7. The district court made no finding suggesting that “significant further obstruction occurred during the investigation.” Thus, Jacquemain’s offense is subject to this exception, and, accordingly, the district court erred in applying this enhancement. Looking at the arguments about § 3A1.3 and § 3C1.1 together, it appears that on remand the best outcome for the government, the only appealing party on the sentencing issue, would place this case in its present posture — with a total offense level of 14. Remand would thus serve no purpose.
2. Section 3C1.1 enhancement
The government also contends the district court erred in not applying an additional obstruction of justice enhancement, pursuant to § 3C1.1, for Robert Jacque-main’s false testimony at trial. In reviewing § 3C1.1 enhancements, we review the district court’s factual findings for clear error and the court’s determination of whether the facts constitute an obstruction of justice
de novo. United States v. Misc.
We conclude that the district court did not clearly err in declining to apply this enhancement. The district court stated, “I didn’t find his testimony in court to be obstructive in any way. I think he told what he could and did it as best he could and I don’t believe an enhancement is appropriate based on his testimony.”
3. Section 5K2.20 downward departure
Finally, the government contests the district court’s decision to grant a downward departure under U.S.S.G. § 5K2.20. Pursuant to § 5K2.20, “A sentence below the applicable guideline range may be warranted in an extraordinary case if the defendant’s criminal conduct constituted aberrant behavior.” U.S.S.G. § 5K2.20 (2001). Application note 1 further explains, “ ‘Aberrant behavior’ means a single criminal occurrence or single criminal transaction that (A) was committed without significant planning; (B) was of limited duration; and (C) represents a marked deviation by the defendant from an otherwise law-abiding life.” U.S.S.G. § 5K2.20 cmt. n. 1 (2001). Here, although this offense may have been a marked deviation from Jacquemain’s otherwise law-abiding life, it was not a single criminal transaction that was committed without significant planning. The conspiracy in which Jac-quemain took part spanned almost two years and required some level of planning. Thus, the departure was likely not warranted.
See United States v. Lepird,
The district court, however, made a finding in the alternative: “I believe [a § 5K2.20 departure] in and of itself would warrant a three-level reduction, which would take this down from a level 14 to a level 11.... However, I still think that when I consider the factors under 3553(a) that a sentence below the guidelines level is warranted.” Accordingly, we conclude that the application of § 5K2.20 was harmless error.
United States v. Ward,
B. Substantive Reasonableness
Finally, we cannot conclude that Jacquemain’s sentence is substantively unreasonable. In
Gall v. United States,
— U.S. —,
In sentencing Jacquemain, the district court exhaustively examined the § 3553(a) factors and amply justified its outside-Guidelines sentence. With respect to the nature and circumstance of the offense, the court noted that the underlying offense “clearly was something that happened quickly, spontaneously, and without the exercise of appropriate judgment.” Likewise, the court felt that the response — the cover-up — was also immediate, impetuous, and without considered judgment, even “if not as spontaneous as the road rage incident.” The court found that the history and characteristics of the defendant weighed in favor of a lower sentence. The court noted that it sees a “ton of police misconduct cases,” and many police officers that had come before the court had long records of citizen complaints. In contrast, the court explained, Robert Jacque-main had an “unblemished and exemplary record, a lifetime of service in the armed service, many times decorated, and not a single complaint with respect to the citizens [he was] sworn to protect.” The court acknowledged that the offense was serious but felt that it was balanced by the “impetuous” nature of the obstruction of *591 justice, “a single line in a police report.” The court stated that its sentence would promote respect for the law, and the court thought that there was not any chance the defendant would commit further crimes. The court noted that it felt that Robert Jacquemain was less culpable than Hey and Carson.
Ultimately, the sentence Robert Jacque-main received — three years of probation with six months of home confinement — is not insignificant. As the
Gall
Court explained, “[o]ffenders on probation are ... subject to several standard conditions that substantially restrict their liberty.”
Gall,
IX.
For the reasons set forth above, we affirm the judgment of the district court with respect to each defendant’s conviction. We also affirm the sentences of Carson and Robert Jacquemain.
Notes
. Pike's testimony also indicated that the officers reached into the pickup truck, pulled Paxton out, and took him to the ground head first.
. Another neighborhood resident, John Jones, testified that he saw the officers putting Pax-ton into a patrol car. Jones stated that the officers rammed Paxton’s head into the top of the car, backed him up, and then threw him into the back seat.
. The charges were ultimately dropped by the prosecutor in April 2003.
. Only the transcript of Jacquemain’s preliminary examination testimony is included in the joint appendix. However, the testimony of the prosecutor who conducted the examination suggests that both officers testified that Paxton exited his car on his own.
.In sharp contrast to Poucher’s testimony, Robert Jacquemain denied conspiring with the other officers to cover up anything about the incident. Jacquemain stated that he never proffered false or misleading information in his reports or to any law enforcement officers, and he asserted that he was innocent of the charges brought against him.
. The government moved to dismiss Count VII before the end of the trial.
. Prior to the second superseding indictment, Duane Poucher pleaded guilty to deprivation of rights under color of law, conspiracy, and obstruction of justice. On September 9, 2005, Poucher was sentenced to two years of probation on each count, running concurrently-
. Count V alleged that "[o]n or about July 27, 2002, ... [Peter Jacquemain] completed and submitted to officials of the Mount Clemens Police Department a written report containing false and misleading information about the July 27, 2002 traffic stop of Robert Paxton and thereby did knowingly engage in misleading conduct toward another person, with intent to hinder, delay, and prevent the communication to a federal law enforcement officer and federal judge any of the information relating to the commission and possible commission of a federal criminal civil rights offense, under 18 U.S.C. § 242, involving the willful deprivation of Robert Paxton’s right to be free from the unreasonable use of force by one acting under color of law.”
. Within his sufficiency of the evidence argument, Jacquemain also appears to contend that the jury instructions were improper with respect to the second element of § 1512(b)(3). The district court gave the following instruction regarding the second element, to which Jacquemain did not object:
What the government must prove is that a defendant intended to foreclose the possibility, either temporarily or permanently, that truthful information might be transferred to law enforcement officers who investigate! ] federal crimes, or courts where such crimes are prosecuted.
However, Jacquemain is apparently objecting to the jury instruction merely because it does not incorporate his novel theory on the element of intent, discussed below, which he draws from
Arthur Andersen LLP v. United States,
. The grand jury foreperson captured the essence of Hey’s testimony when he asked, "Just try and summarize. You were out on the night in question. You were there. You saw nothing. You heard nothing; is that accurate?” Hey answered, "Well, I saw — I saw what happened to me ... But as far as the accusations against the officers, no, I did not see that.”
. The prosecutor pressed Hey repeatedly on this point, asking "Is it fair to say from the moment that you arrived on the scene until the moment that Officer Peter Jacquemain walked back to your car, you did not see any person on the scene? ... You didn't see any person[?]” Hey answered, “No, I did not.”
. Hey cites to the wrong statute, § 1503, in his brief. Hey was convicted of obstructing justice in violation of § 1512(c)(2).