[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 12-12928

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D.C. Docket No. 1:10-cr-20896-JAL-2

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

QUARTAVIOUS DAVIS,

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Southern District of Florida

________________________

(June 11, 2014)

Before MARTIN, DUBINA, and SENTELLE,* Circuit Judges.

____________

*Honorable David Bryan Sentelle, United States Circuit Judge for the District of 

Columbia, sitting by designation.

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SENTELLE, Circuit Judge:

Appellant Quartavius Davis1 was convicted by a jury on several counts of 

Hobbs Act robbery, 18 U.S.C. § 1951(b)(1), (3), conspiracy, 18 U.S.C. § 1951(a), 

and knowing possession of a firearm in furtherance of a crime of violence, 18 

U.S.C. §§ 924(c)(1)(A)(ii) and 2. The district court entered judgment on the 

verdict, sentencing Davis to consecutive terms of imprisonment totaling 1,941 

months. Davis appeals, assigning several grounds for reversal. His principal 

argument is that the court admitted location evidence based on stored cell site 

information obtained by the prosecution without a warrant, in violation of his 

Fourth Amendment rights. He assigns other grounds of error going to 

prosecutorial misconduct, evidentiary sufficiency, and sentencing. For the reasons 

set forth below, we hold that there is no reversible error, although we do find merit 

in one argument that the sentence was improperly enhanced. We therefore affirm 

the judgment below in large part, but vacate a sentencing enhancement regarding 

“brandishing” a firearm.

BACKGROUND

On February 18, 2011, a grand jury for the Southern District of Florida 

returned a seventeen-count indictment against Davis and five co-defendants. Davis 

was named as a defendant in sixteen of the seventeen counts. Generally, the

 1 The Presentence Investigation Report notes that “Quartavius” is the correct spelling of 

appellant’s first name, despite the spelling in the caption. PSR at 5.

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indictment charged violations of the Anti-Racketeering Act, 18 U.S.C. § 1951 

(Hobbs Act), and conspiracy to violate the Hobbs Act. More specifically, the 

indictment charged Davis with conspiracy to engage in Hobbs Act robbery, in 

violation of 18 U.S.C. § 1951(a) (Counts 1, 15); Hobbs Act robbery, in violation of 

18 U.S.C. §§ 1951(a) and 2 (Counts 2, 4, 6, 8, 10, 13, 16); and with knowingly 

using, carrying, and possessing a firearm in furtherance of a crime of violence, in 

violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2 (Counts 3, 5, 7, 9, 11, 14, 17). 

As part of the pretrial proceedings, Davis moved to suppress electronic 

location evidence that the government had obtained “without a warrant,” claiming 

that the obtaining of that evidence violated his Fourth Amendment rights. The 

district court denied the motion. Davis renewed the motion during trial, and the 

district court again denied it. These rulings give rise to Davis’s principal claim on 

appeal, which we will discuss further below. The prosecution proceeded to offer 

evidence of two conspiracies to commit Hobbs Act robbery and that Davis was 

part of each conspiracy. The prosecution further presented evidence that the 

conspirators committed such robberies. 

During the trial, one member of each conspiracy testified for the United 

States. Willie Smith (“Smith”) testified as to the first conspiracy, encompassing 

six robberies at commercial establishments including a Little Caesar’s restaurant, 

an Amerika Gas Station, a Walgreens drug store, an Advance Auto Parts store, a 

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Universal Beauty Salon, and a Wendy’s restaurant. Michael Martin (“Martin”) 

testified as to the second conspiracy, encompassing the robbery of a Mayor’s 

Jewelry store. Smith and Martin testified that Davis was involved in each robbery, 

where they wore masks, carried guns, and took items such as cigarettes and cash. 

Additionally, an eyewitness, Edwin Negron, testified regarding Davis’s 

conduct at Universal Beauty Salon and the adjacent Tae Kwon Do studio. He 

testified that Davis pointed a gun at his head, pushed a 77 year-old woman and 

Negron’s wife to the ground, and took several items from Negron and others. 

Another eyewitness, Antonio Brooks, testified that he confronted Davis and his 

accomplices outside the Wendy’s restaurant after that robbery and tried to write 

down the license plate of their getaway car. Brooks testified that Davis fired his 

gun at him, and that he returned fire towards the car. 

Beyond the testimony, the government produced additional evidence. 

Surveillance videos showed a man matching Davis’s description participating in 

the robberies at Walgreens, Advance Auto Parts, Wendy’s, and Mayor’s Jewelry. 

Smith and Martin identified Davis on the videos. DNA shown to be Davis’s was 

recovered from the getaway car used to flee the scene of the Universal Beauty 

Salon robbery and the Mayor’s Jewelry store robbery.

The prosecution also offered records obtained from cell phone service 

providers evidencing that Davis and his co-defendants had placed and received cell 

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phone calls in close proximity to the locations of each of the charged robberies 

around the time that the robberies were committed, except for the Mayor’s Jewelry 

store robbery. Davis preserved his objection to the cell phone location evidence 

and his claim that the government’s obtaining such evidence without a warrant 

issued upon a showing of probable cause violated his rights under the Fourth 

Amendment.

The court submitted all counts to the jury. During jury arguments, the 

prosecutor made several questionable statements, including some apparently 

vouching for the credibility of the government’s witnesses. Upon objections by the 

defense, the court instructed the jury to disregard the statements by the 

prosecution. The jury returned a verdict of guilty on all counts. 

Subsequently, the district court sentenced Davis on all counts, and 

conducted a careful sentencing analysis on the record. Of particular note to the 

issues in this appeal, in the sentence on Count 3, which charged the use and 

carrying of a firearm during and in relation to a crime of violence, the court 

imposed a seven-year statutory mandatory enhancement pursuant to 18 U.S.C. 

§ 924(c)(1)(A)(ii), which provides for such enhancement where “the firearm is 

brandished . . . .” On Counts 5, 7, 9, 11, 14, and 17, which also charged the 

defendant with using and carrying a firearm during and in relation to a crime of 

violence, the court imposed a “second or subsequent” enhancement required by 18 

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U.S.C. § 924(c)(1)(C)(i), as each of these offenses was subsequent to the similar 

violation charged in Count 3. Noting that 18 U.S.C. § 924(c)(1)(D)(ii) requires 

consecutive sentences, the court imposed a total term of imprisonment of 1,941 

months, approximately 162 years.

Davis raises several allegations of error on appeal. First, he argues that the 

district court’s denial of his motion to suppress the cell site location information 

and the admission of that evidence violated his constitutional rights under the 

Fourth Amendment. Second, he argues that the prosecutor’s misconduct during 

closing argument rendered his trial unfair, entitling him to a new trial. Third, he 

raises sentencing arguments, contending that the district court’s applications of the 

mandatory penalty for second or subsequent offenses and for brandishing a firearm

on Count 3 were in violation of his Sixth Amendment rights, and that the 162-year 

sentence of imprisonment constituted a cruel and unusual punishment in violation 

of his Eighth Amendment rights. Further, he raises an issue as to the sufficiency of 

evidence on the aiding and abetting the use of a firearm charge in connection with 

a crime of violence in Count 17. Finally, he makes a broad challenge that “the 

cumulative effect and prejudice arising from multiple trial errors compels 

reversal.” We consider each of the listed arguments in turn.

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I. Fourth Amendment Issue

Davis’s Fourth Amendment argument raises issues of first impression in this 

circuit, and not definitively decided elsewhere in the country. The evidence at 

issue consists of records obtained from cell phone service providers pursuant to the 

Stored Communications Act (“SCA”), 18 U.S.C. §§ 2703(c) and (d). Under that 

Act, the government can obtain from providers of electronic communication 

service records of subscriber services when the government has obtained either a 

warrant, § 2703(c)(A), or, as occurred in this case, a court order under subsection 

(d), see § 2703(c)(B). The order under subsection (d) does not require the 

government to show probable cause.

The evidence obtained under the order and presented against Davis in the 

district court consisted of so-called “cell site location information.” That location 

information includes a record of calls made by the providers’ customer, in this case 

Davis, and reveals which cell tower carried the call to or from the customer. The 

cell tower in use will normally be the cell tower closest to the customer. The cell 

site location information will also reflect the direction of the user from the tower. 

It is therefore possible to extrapolate the location of the cell phone user at the time 

and date reflected in the call record. All parties agree that the location of the user 

will not be determined with pinpoint precision, but the information is sufficiently 

specific that the prosecutor expressly relied on it in summing up to the jury in 

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arguing the strength of the government’s case for Davis’s presence at the crime 

scenes. Indeed, it is not overstatement to say that the prosecutor stressed that 

evidence and the fact that the information reflected Davis’s use of cell phone 

towers proximate to six of the seven crime scenes at or about the time of the Hobbs 

Act robberies. 

Davis objected to the admission of the location information in the district 

court and now argues to us that the obtaining of that evidence violated his 

constitutional rights under the Fourth Amendment. That Amendment, of course, 

provides that “no Warrants shall issue, but upon probable cause, supported by Oath 

or Affirmation . . . .” U.S. CONST. AMEND. IV. It is a “basic principle of Fourth 

Amendment law” that searches and seizures without a warrant “are presumptively 

unreasonable.” See, e.g., Groh v. Ramirez, 540 U.S. 551, 559 (2004). The SCA 

does provide for governmental entities requiring records from communication 

service providers by warrant under subsection (c)(A). However, as noted above, 

the prosecution obtained the evidence against Davis, not by warrant under 

subsection (c)(A), but by order under subsection (d). As further noted above, that 

section does not require probable cause, but only a showing “that there are 

reasonable grounds to believe that the . . . records or other information sought, are 

relevant and material to an ongoing criminal investigation.” 18 U.S.C. § 2703(d) 

(emphasis added). Davis contends that the obtaining of the evidence required a 

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warrant upon probable cause. The government argues that the evidence is not 

covered by the Fourth Amendment and was properly obtained under a court order. 

As we suggested above, the question whether cell site location information 

is protected by the Fourth Amendment guarantees against warrantless searches has 

never been determined by this court or the Supreme Court. Two circuits have 

considered the question, but not in the context of the use of the evidence in a 

criminal proceeding. Also, one of those opinions issued before the Supreme 

Court’s decision in United States v. Jones, ___ U.S. ___ , 132 S. Ct. 945 (2012), 

the most relevant Supreme Court precedent. 

The Third Circuit in In re Application of U.S. for an Order Directing a 

Provider of Elec. Commc’n. Serv. to Disclose Records to Gov’t, 620 F.3d 304, 

317–18 (3d Cir. 2010), heard the government’s appeal from an order of a 

magistrate judge declining to direct a service provider to furnish information by 

order under subsection (d) and requiring instead that the government pursue a 

warrant upon probable cause under subsection (c)(A). Briefly put, that circuit did 

vacate the magistrate judge’s denial, but opined that the magistrate judge in 

appropriate circumstances might “require a warrant showing probable cause . . . .” 

Id. at 319. 

The Fifth Circuit, in In re Application of U.S. for Historical Cell Site Data, 

724 F.3d 600, 612 (5th Cir. 2013), reviewed an application in a similar posture. In 

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the Fifth Circuit case, the district court had denied orders for which the 

government had applied under subsection (d). The Fifth Circuit clearly held that 

compelling production of the records on the statutory “reasonable grounds” basis is 

not “per se unconstitutional.” Id. at 602. We will not review at this point the 

reasoning of either of our sibling circuits, given that the context of the cases is 

different, and one of those circuits opined before issuance of Jones, the most 

instructive Supreme Court decision in the field. 

While Jones is distinguishable from the case before us, it concerned location 

information obtained by a technology sufficiently similar to that furnished in the 

cell site location information to make it clearly relevant to our analysis. The 

present case, like Jones, brings to the fore the existence of two distinct views of the 

interests protected by the Fourth Amendment’s prohibition of unreasonable 

searches and seizures. The older of the two theories is the view that the Fourth 

Amendment protects the property rights of the people. This view is sometimes 

referred to as the “trespass” theory and “our Fourth Amendment jurisprudence was 

tied to common-law trespass, at least until the latter half of the 20th century.” 

Jones, 132 S. Ct. at 949 (collecting authorities). However, in the twentieth 

century, a second view gradually developed: that is, that the Fourth Amendment 

guarantee protects the privacy rights of the people without respect to whether the 

alleged “search” constituted a trespass against property rights. 

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The privacy theory began to emerge at least as early as Olmstead v. United 

States, 277 U.S. 438 (1928). In Olmstead, the government had obtained 

conversations of the defendants by warrantless wiretap. Because the wires that 

were tapped were outside the premises of the defendants, the majority of the court, 

relying on the trespass theory, held that the tapping did not constitute a search 

within the meaning of the Fourth Amendment. Justice Brandeis, in dissent, 

expressly viewed the provision against unlawful searches as protecting against 

“invasion of ‘the sanctities of a man’s home and the privacies of life.’” Id. at 473 

(Brandeis, J., dissenting) (quoting Boyd v. United States, 116 U.S. 616, 630 (1886)

(emphasis added)). Despite Justice Brandeis’s criticism, the trespass theory 

continued to hold sway. 

In Goldman v. United States, 316 U.S. 129 (1942), the petitioners

complained against the government’s electronically overhearing conversations in 

petitioners’ offices by the warrantless placement of a listening device on an 

exterior wall. Because the Court, in what might be described as an esoteric 

discussion of the placement of the device, concluded that the interception of 

petitioners’ conversation was not aided by trespass, there was no Fourth 

Amendment violation. However, the privacy theory again advanced in dissent. 

Chief Justice Stone and Justice Frankfurter, in a two-sentence separate opinion, 

simply stated their agreement with the dissent in Olmstead, and lamented the 

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unwillingness of the majority to overrule that case. Justice Murphy dissented 

separately, expressly referencing the “right of personal privacy guaranteed by the 

Fourth Amendment.” Id. at 136 (Murphy, J., dissenting).

The minutiae involved in the application of the trespass theory to the world 

of electronic information stood out sharply in Silverman v. United States, 365 U.S. 

505 (1961). In Silverman, police officers testified to the contents of conversations 

upon which they eavesdropped. The Supreme Court noted the argument of the 

defendants that the rationale of Olmstead should be reexamined, but concluded that 

such a reexamination was unnecessary given that the conversations were overheard 

by means of a “spike mike” driven into the wall of the defendant’s premises and 

making contact with a heat duct therein so as to use the entire heating system as a 

listening device. Because that penetration constituted a trespass, the Court did not 

deem it necessary to reconsider its earlier rationale. 

Finally, in Katz v. United States, 389 U.S. 347 (1967), the majority of the 

Supreme Court accepted and relied upon the privacy theory to hold interception of 

a conversation unconstitutional even in the absence of a physical trespass. In 

Katz—on facts somewhat reminiscent of Goldman—the Court considered evidence 

obtained by FBI agents through a device attached to the exterior of a telephone 

booth but not penetrating the wall. As the government argued that there was no 

Fourth Amendment violation because there was no trespass, the Court squarely 

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considered the dichotomy between the property and privacy protection theories. 

The Court held that such a warrantless interception did violate privacy interests 

protected by the Fourth Amendment. Indeed, it did so construing language from 

Silverman as already establishing “that the Fourth Amendment governs not only 

the seizure of tangible items, but extends as well to the recording of oral statements 

overheard without any ‘technical trespass under . . . local property law.’” Id. at 

353 (quoting Silverman, at 511). Only one justice dissented in Katz and it became 

indisputable in 1967 that the privacy protection theory was indeed viable. 

Therefore, it cannot be denied that the Fourth Amendment protection against 

unreasonable searches and seizures shields the people from the warrantless 

interception of electronic data or sound waves carrying communications. The next 

step of analysis, then, is to inquire whether that protection covers not only content, 

but also the transmission itself when it reveals information about the personal 

source of the transmission, specifically his location. The Supreme Court in Jones

dealt with such an electronic seizure by the government and reached a conclusion 

instructive to us in the present controversy.

The Jones case involved not cell site location data, but the somewhat 

similar location data generated by a Global-Positioning-System (GPS) tracking 

device attached to the automobile of a suspected drug dealer by law enforcement 

agents. Although the agents originally attached the device and gathered the 

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information transmitted by it under the authority of a warrant, that warrant 

authorized installation in the District of Columbia for a period of ten days. The 

agents installed the device on the eleventh day outside the District of Columbia. 

The government then tracked the vehicle’s movements for twenty-eight days. The 

prosecution offered the resulting record of the defendant’s movements and 

whereabouts over that period of time in evidence against him in his trial for drug 

trafficking conspiracy. 

The trial court in Jones suppressed the location evidence generated by the 

device on Jones’s vehicle while it was parked in his own premises, but admitted 

the data reflecting its movements on the streets and highways in the belief that 

Jones would have no reasonable expectation of privacy when the vehicle was on 

public streets. See United States v. Jones, 451 F. Supp. 2d 71, 87–89 (D.D.C. 

2006). On conviction, Jones and a codefendant, Maynard, appealed. The Court of 

Appeals for the District of Columbia Circuit reviewed the Fourth Amendment 

issue and noted that the prosecution had employed the GPS device to track Jones’s 

“movements continuously for a month.” United States v. Maynard, 615 F.3d 544, 

549 (D.C. Cir. 2010). The court considered the government’s argument that each 

of Jones’s movements over the month was exposed to the public, and that 

therefore, he had no reasonable expectation of privacy in them. The court rejected 

this argument, noting that “the whole of one’s movements over the course of a 

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month . . . reveals far more than the individual movements that it comprises. The 

difference is not one of degree but of kind, for no single journey reveals the habits

and patterns that mark the distinction between a day in the life and a way of life, 

nor the departure from a routine that . . . may reveal even more.” Id. at 561–62.

By way of example, the court noted that “[r]epeated visits to a church, a 

gym, a bar, or a bookie tell a story not told by a single visit . . . .” Id. at 562. The 

court noted further that “the sequence of a person’s movements can reveal still 

more; a single trip to a gynecologist’s office tells little about a woman, but that trip 

followed a few weeks later by a visit to a baby supply store tells a different story.” 

Id.

The court recalled the “mosaic theory” often relied upon by the government 

“in cases involving national security information.” Id. As the Supreme Court has 

observed in that context, “what may seem trivial to the uninformed, may appear of 

great moment to one who has a broad view of the scene and may put the 

questioned item of information in its proper context.” CIA v. Simms, 471 U.S. 159, 

170 (1985) (internal quotation marks and citations omitted). The circuit reasoned 

that although each element of Jones’s movements throughout the month might 

have been exposed to the public, the “aggregation of [those] movements over the 

course of a month,” was not so exposed, and his expectation of privacy was 

reasonable. Maynard, 615 F.3d at 563. The court reversed Jones’s conviction. 

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The United States sought and obtained certiorari. The Supreme Court affirmed. 

Like the Court of Appeals, the High Court concluded that the warrantless gathering 

of the GPS location information had violated Jones’s Fourth Amendment rights.

While the Jones case does instruct our analysis of the controversy before us, 

it does not conclude it. As discussed at length above, Fourth Amendment 

jurisprudence has dual underpinnings with respect to the rights protected: the 

trespass theory and the privacy theory. In Jones, Justice Scalia delivered the 

decision of the Court in an opinion that analyzed the facts on the basis of the 

trespass theory. Because the agents had committed a trespass against the effects of 

Jones when they placed the GPS device on his car, the opinion of the Court did not 

need to decide whether Jones’s reasonable expectation of privacy had been 

violated because his rights against trespass certainly had. 

As the United States rightly points out, in the controversy before us there 

was no GPS device, no placement, and no physical trespass. Therefore, although 

Jones clearly removes all doubt as to whether electronically transmitted location 

information can be protected by the Fourth Amendment, it is not determinative as 

to whether the information in this case is so protected. The answer to that question 

is tied up with the emergence of the privacy theory of Fourth Amendment 

jurisprudence. While Jones is not controlling, we reiterate that it is instructive.

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In Jones, Justice Scalia’s opinion for the Court speaks on behalf of the 

author and three other Justices, Chief Justice Roberts, and Justices Kennedy and

Thomas. It is, however, a true majority opinion, as Justice Sotomayor, who wrote 

separately, “join[ed] the majority’s opinion.” Jones, 132 S. Ct. at 957. However, 

she did so in a separate concurrence that thoroughly discussed the possible 

applicability of the privacy theory to the electronic data search. We note that she 

fully joined the majority’s opinion, and was certainly part of the majority that held 

that such a search is violative under the trespass theory. 

Four other justices concurred in the result in an opinion authored by Justice 

Alito, which relied altogether on the privacy theory. Justice Alito wrote, “I would 

analyze the question presented in this case by asking whether respondent’s 

reasonable expectations of privacy were violated by the long-term monitoring of 

the movements of the vehicle he drove.” Id. at 958 (Alito, J., concurring in the 

result). Justice Alito and the justices who joined him ultimately concurred in the 

result because they did conclude that “the lengthy monitoring that occurred in this 

case constituted a search under the Fourth Amendment.” Id. at 964. Justice 

Sotomayor, in her separate concurrence, opined that it was not necessary to answer 

difficult questions concerning the applicability of the reasonable-expectation-ofprivacy test to the Jones facts “because the government’s physical intrusion on 

Jones’ jeep supplies a narrower basis for decision.” Id. at 957 (Sotomayor, J., 

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concurring). Conspicuously, she also noted that “in cases involving even shortterm monitoring, some unique attributes of GPS surveillance relevant to the Katz

analysis will require particular attention.” Id. at 955. She noted that electronic 

“monitoring generates a precise, comprehensive record of a person’s public 

movements that reflects a wealth of detail about her familial, political, 

professional, religious, and sexual associations.” Id. (citing People v. Weaver, 909 

N.E. 2d 1195, 1199 (NY 2009). 

Even the opinion of the Court authored by Justice Scalia expressly did not 

reject the applicability of the privacy test. While chiding the concurrence for 

“mak[ing] Katz the exclusive test,” the opinion of the Court expressly noted that 

“[s]ituations involving merely the transmission of electronic signals without 

trespass would remain subject to [the] Katz [privacy] analysis.” Id. at 953. In light 

of the confluence of the three opinions in the Supreme Court’s decision in Jones, 

we accept the proposition that the privacy theory is not only alive and well, but 

available to govern electronic information of search and seizure in the absence of 

trespass.

Having determined that the privacy theory of Fourth Amendment protection 

governs this controversy, we conclude that the appellant correctly asserts that the 

government’s warrantless gathering of his cell site location information violated 

his reasonable expectation of privacy. The government argues that the gathering of 

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cell site location information is factually distinguishable from the GPS data at issue 

in Jones. We agree that it is distinguishable; however, we believe the distinctions 

operate against the government’s case rather than in favor of it. 

Jones, as we noted, involved the movements of the defendant’s automobile 

on the public streets and highways. Indeed, the district court allowed the 

defendant’s motion to suppress information obtained when the automobile was not 

in public places. The circuit opinion and the separate opinions in the Supreme 

Court concluded that a reasonable expectation of privacy had been established by 

the aggregation of the points of data, not by the obtaining of individual points. 

Such a mosaic theory is not necessary to establish the invasion of privacy in the 

case of cell site location data. 

One’s car, when it is not garaged in a private place, is visible to the public, 

and it is only the aggregation of many instances of the public seeing it that make it 

particularly invasive of privacy to secure GPS evidence of its location. As the 

circuit and some justices reasoned, the car owner can reasonably expect that 

although his individual movements may be observed, there will not be a “tiny 

constable” hiding in his vehicle to maintain a log of his movements. 132 S. Ct. at 

958 n.3 (Alito, J., concurring). In contrast, even on a person’s first visit to a 

gynecologist, a psychiatrist, a bookie, or a priest, one may assume that the visit is 

private if it was not conducted in a public way. One’s cell phone, unlike an 

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automobile, can accompany its owner anywhere. Thus, the exposure of the cell 

site location information can convert what would otherwise be a private event into 

a public one. When one’s whereabouts are not public, then one may have a 

reasonable expectation of privacy in those whereabouts. Therefore, while it may 

be the case that even in light of the Jones opinion, GPS location information on an 

automobile would be protected only in the case of aggregated data, even one point 

of cell site location data can be within a reasonable expectation of privacy. In that 

sense, cell site data is more like communications data than it is like GPS 

information. That is, it is private in nature rather than being public data that 

warrants privacy protection only when its collection creates a sufficient mosaic to 

expose that which would otherwise be private.

The United States further argues that cell site location information is less 

protected than GPS data because it is less precise. We are not sure why this should 

be significant. We do not doubt that there may be a difference in precision, but 

that is not to say that the difference in precision has constitutional significance. 

While it is perhaps possible that information could be sufficiently vague as to 

escape the zone of reasonable expectation of privacy, that does not appear to be the 

case here. The prosecutor at trial stressed how the cell phone use of the defendant 

established that he was near each of six crime scenes. While committing a crime is 

certainly not within a legitimate expectation of privacy, if the cell site location data 

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could place him near those scenes, it could place him near any other scene. There 

is a reasonable privacy interest in being near the home of a lover, or a dispensary 

of medication, or a place of worship, or a house of ill repute. Again, we do not see 

the factual distinction as taking Davis’s location outside his expectation of privacy. 

That information obtained by an invasion of privacy may not be entirely precise

does not change the calculus as to whether obtaining it was in fact an invasion of 

privacy.

Finally, the government argues that Davis did not have a reasonable 

expectation of privacy because he had theretofore surrendered that expectation by 

exposing his cell site location to his service provider when he placed the call. The 

government correctly notes that “the Fourth Amendment does not prohibit the 

obtaining of information revealed to a third party and conveyed by him to 

government authorities . . . .” United States v. Miller, 425 U.S. 435, 443 (1976). 

In Smith v. Maryland, 442 U.S. 735 (1979), at the request of law enforcement 

authorities, a telephone company installed a pen register to record numbers dialed 

from the defendant’s telephone. The Smith Court held that telephone users had no

subjective expectation of privacy in dialed telephone numbers contained in 

telephone companies’ records. Id. at 742–44. While the government’s position is 

not without persuasive force, it does not ultimately prevail. 

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The Third Circuit considered this argument in In re Electronic 

Communications Service to Disclose, supra. As that circuit noted, the Supreme 

Court in Smith reasoned that phone subscribers “assumed the risk that the company 

would reveal to police the numbers [they] dialed.” 442 U.S. at 744. See also 620 

F.3d at 304. The reasoning in Smith depended on the proposition that “a person 

has no legitimate expectation of privacy in information he voluntarily turns over to 

third parties,” 442 U.S. at 743–44. The Third Circuit went on to observe that “a 

cell phone customer has not ‘voluntarily’ shared his location information with a 

cellular provider in any meaningful way.” That circuit further noted that “it is 

unlikely that cell phone customers are aware that their cell phone providers collect 

and store historical location information.” 620 F.3d at 317 (emphasis added). 

Therefore, as the Third Circuit concluded, “when a cell phone user makes a call, 

the only information that is voluntarily and knowingly conveyed to the phone 

company is the number that is dialed, and there is no indication to the user that 

making that call will also locate the caller.” Id. Even more persuasively, “when a 

cell phone user receives a call, he hasn’t voluntarily exposed anything at all.” Id.

at 317–18.

Supportive of this proposition is the argument made by the United States to 

the jury. The prosecutor stated to the jury “that obviously Willie Smith, like 

[Davis], probably had no idea that by bringing their cell phones with them to these 

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robberies, they were allowing [their cell service provider] and now all of you to 

follow their movements on the days and at the times of the robberies . . . .” Just so. 

Davis has not voluntarily disclosed his cell site location information to the provider 

in such a fashion as to lose his reasonable expectation of privacy.

In short, we hold that cell site location information is within the subscriber’s 

reasonable expectation of privacy. The obtaining of that data without a warrant is 

a Fourth Amendment violation. Nonetheless, for reasons set forth in the next 

section of this opinion, we do not conclude that the district court committed a 

reversible error.

II. The Leon Exception

The United States contends that even if we conclude, as we have, that the 

gathering of the cell site location data without a warrant violated the constitutional 

rights of the defendant, we should nonetheless hold that the district court did not 

commit reversible error in denying appellant’s motion to exclude the fruits of that 

electronic search and seizure under the “good faith” exception to the exclusionary 

rule recognized in United States v. Leon, 468 U.S. 897 (1984). We agree. 

In Leon, the Court observed that “‘[i]f the purpose of the exclusionary rule is 

to deter unlawful police conduct, then evidence obtained from a search should be 

suppressed only if it can be said that the law enforcement officer had knowledge, 

or may properly be charged with knowledge, that the search was unconstitutional 

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under the Fourth Amendment.’” Id. at 919 (quoting United States v. Peltier, 422 

U.S. 531, 542 (1975)). In Leon, the Supreme Court reviewed the exclusion of 

evidence seized “by officers acting in reasonable reliance on a search warrant 

issued by a detached and neutral magistrate but ultimately found to be unsupported 

by probable cause.” 468 U.S. at 900. The High Court held that “when an officer 

acting with objective good faith has obtained a search warrant from a judge . . . and 

acted within its scope,” the exclusionary rule should not be employed to 

“[p]enaliz[e] the officer for the magistrate’s error.” Id. at 920–21. As the Court 

observed in Leon, such an application of the exclusionary rule “cannot logically 

contribute to the deterrence of Fourth Amendment violations.” Id.

The only differences between Leon and the present case are semantic ones. 

The officers here acted in good faith reliance on an order rather than a warrant, but, 

as in Leon, there was a “judicial mandate” to the officers to conduct such search 

and seizure as was contemplated by the court order. See id. at 920 n.21. As in 

Leon, the officers “had a sworn duty to carry out” the provisions of the order. Id. 

Therefore, even if there was a defect in the issuance of the mandate, there is no 

foundation for the application of the exclusionary rule.

We further add that Leon speaks in terms of the “magistrate’s” error. Here, 

the law enforcement officers, the prosecution, and the judicial officer issuing the 

order, all acted in scrupulous obedience to a federal statute, the Stored 

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Communications Act, 18 U.S.C. § 2703. At that time, there was no governing 

authority affecting the constitutionality of this application of the Act. There is not 

even allegation that any actor in the process evidenced anything other than good 

faith. We therefore conclude that under the Leon exception, the trial court’s denial 

of the motions to suppress did not constitute reversible error.

III. Prosecutorial Misconduct

Appellant argues that the trial prosecutor, in his summation to the jury, 

engaged in improper behaviors that irreparably tainted Davis’s trial. While he 

refers to several parts of the argument, the two that typify his argument were the 

prosecutor’s reference to a substance, perhaps blood, being “all over” a getaway 

car, when in fact there were only a few drops; and what appellant describes as 

“long strings of bolstering witnesses’ testimony.” We have reviewed the trial

transcript of the closing argument and conclude that the prosecutor’s statements 

warrant no relief on appeal.

As to the statements described by Davis as exaggeration of the evidence, we 

see no more than rhetorical flourish. The prosecution could, without violating 

Davis’s rights, characterize the evidence as could the defense counsel in presenting 

Davis’s case. The bolstering is admittedly troubling.

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The problem of a prosecutor’s vouching for government witnesses is indeed 

a very real one. In United States v. Young, 470 U.S. 1, 18–19 (1985), the Supreme 

Court observed that prosecutorial vouching 

can convey the impression that evidence not presented to the jury, but 

known to the prosecutor, supports the charges against the defendant and can 

thus jeopardize the defendant’s right to be tried solely on the basis of the 

evidence presented to the jury; and the prosecutor’s opinion carries with it 

the imprimatur of the Government and may induce the jury to trust the 

Government’s judgment rather than its own view of the evidence.

The Supreme Court’s analysis of the prosecutor’s role draws a clean line. He may 

comment on the evidence before the jury, but he may not augment that evidence by 

implication that he or others on the prosecution team are aware of further evidence 

not presented in court. While we recognize that in the heat of the courtroom, an 

arguing lawyer may say things he would later regret, the record in this case 

discloses that the prosecutor did cross that line. Specifically, he stated, with 

respect to the government witness Martin, “he came clean and confessed [one 

hundred] percent and told the police precisely the same story that he told all of 

you, the story he has told me one hundred times since.” 

The evidence before the jury certainly did not demonstrate that Martin had 

told the prosecutor the same story one hundred times since his original confession. 

The government argued to us that the phrase “one hundred times” is only a 

colloquialism and that the argument “relied on facts in evidence.” Appellee’s Br. 

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at 33. We cannot agree with this styling, but nonetheless conclude that there is no 

ground for reversal here.

Prosecutorial misconduct will result in reversal only in those instances in 

which the misbehavior is so pervasive as to “permeate the entire atmosphere of the 

trial.” United States v. McLain, 823 F.2d 1457, 1462 (11th Cir. 1987). We 

proceed under a two-part test. First, the comments at issue must actually be 

improper, and second, any comments found to be improper must prejudicially 

affect the substantial rights of the defendant. United States v. Schmitz, 634 F.3d 

1247, 1267 (11th Cir. 2011). 

We conclude that no such prejudicial effect is present. The improper remark 

here is a small item following a dense record of evidence against the defendant, 

and evidence which in fact included prior consistent statements by the witness 

Martin.

Further, and of great importance, the district court removed the comments 

from the jury’s consideration and properly instructed the jurors on the nature of 

closing arguments. The court instructed that the prosecutor’s statements were “not 

in evidence, and even if [they were], that doesn’t make [them] true or not true.” 

We must presume that a jury follows its instructions. Richardson v. Marsh, 481 

U.S. 200 (1987). In short, the prosecutor’s statements are not a basis for reversal.

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IV. The Sentencing Enhancements

Davis raises two constitutional objections to the computation of his sentence. 

He contends that the enhancement for the second or subsequent offenses and for 

brandishing a weapon were imposed in violation of his Sixth Amendment right to 

trial by jury; the underlying facts, in the one case “subsequence,” and in the second 

case “brandishing,” were not found by a jury beyond a reasonable doubt. Upon 

review, we conclude that his claim warrants no relief as to the second or 

subsequent enhancement, but is meritorious on the brandishing issue.

This sort of Sixth Amendment claim is governed by the Supreme Court 

decision in United States v. Alleyne, ___ U.S. ___, 133 S. Ct. 2151 (2013). In 

Alleyne, the Supreme Court overruled its prior opinion in Harris v. United States, 

536 U.S. 545, 551–56 (2002), and held that the Sixth Amendment requires any fact 

which increases a mandatory minimum sentence to be submitted to the jury. 

Alleyne, 133 S. Ct. at 2162–63. However, the Alleyne decision does not warrant 

relief on the “second or subsequent” mandate for consecutive sentences. Alleyne

relied heavily on United States v. Apprendi, in which the Court specifically 

excluded the fact of a prior conviction from its general holding requiring a jury to 

pass on those issues increasing the penalty beyond a statutory maximum. 530 U.S. 

466, 490. In Alleyne, the Court declined to reconsider its holding in AlmendarezTorrez v. United States, 523 U.S. 224 (1998), that the fact of a prior conviction 

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need not be treated as an element of an offense. Alleyne, 133 S. Ct. at 2160 n.1. It 

follows, then, that we may not revisit this holding either. 

The jury did not make a specific finding that the convictions for Counts 5, 7, 

9, 11, 14, and 17 were second or subsequent convictions under 18 U.S.C. § 924(c). 

However, there is no Alleyne violation where the judicial finding is the fact of a 

prior conviction, a finding the jury need not make. In any event, the superseding 

indictment charged Davis separately as to each of the seven robberies that occurred 

on separate days. By virtue of logic, each of Counts 5, 7, 9, 11, 14, and 17 was 

second or subsequent when the jury found that they were committed as set forth in 

the superseding indictment. We can offer no relief based on Davis’s contention 

that a concurrently found conviction should be treated differently for Sixth 

Amendment purposes from a conviction which predates the indictment in the 

current case. He cites United States v. Shepard, 544 U.S. 13, 26 (2005), but 

Shepard does not speak to the issue before us. It discusses only the types of 

documents a sentencing court can consider. Accordingly, the district court did not 

err in sentencing Davis to consecutive mandatory terms of imprisonment based on 

its finding that his convictions were second or subsequent enhancements within the 

meaning of 18 U.S.C. § 924(c).

The “brandishing” issue, however, does warrant relief. Although Davis did 

not raise the issue below, an appellate court can review for errors not raised at trial 

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under the “plain error” standard. Under that standard, we may correct the error 

that the defendant did not raise only if there is “(1) error, (2) that is plain, and (3) 

that affects substantial rights.” United States v. McKinley, 732 F.3d 1291, 1295

(11th Cir. 2013). If these three elements are met, we may then in our discretion 

correct the error, only if “(4) the error seriously affects the fairness, integrity, or 

public reputation of judicial proceedings.” Id. For example, the fourth prong of 

plain error review would not be met “where the evidence of a statutory element of 

an offense is overwhelming and essentially uncontroverted.” Id. at 1297. 

A sentencing decision is in error when it violates a relevant Supreme Court 

ruling. See United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005). An 

error is plain if it is “clear from the plain meaning of a statute or constitutional 

provision, or from a holding of the Supreme Court or this Court.” United States v. 

Pantle, 637 F.3d 1172, 1174–75 (11th Cir. 2011). An error affects substantial 

rights if it affected the outcome of the district court proceedings. Rodriguez, 398 

F.3d at 1299. The defendant bears the burden of persuasion to demonstrate such 

prejudice. Id. Finally, we consider whether the error had such an effect on the 

proceedings as to motivate use of our discretion to restore the equality and 

reliability of judicial proceedings in the eyes of the public. United States v. 

Shelton, 400 F.3d 1325, 1332–33 (11th Cir. 2005). 

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On Count 3, the jury found that Davis “possessed a firearm in furtherance of 

the robbery.” At the sentencing hearing, the district court heard from the probation 

officer, who reported that “Count 3, which is possession of a firearm in furtherance 

of a crime of violence . . . calls for a minimum imprisonment sentence of seven 

years . . . .” The district court imposed then “84 months [seven years] as to Count 

3 to be served consecutively to the terms imposed as to [the other counts].” The

text of 18 U.S.C. § 924(c)(1)(A)(ii) requires that “if the firearm is brandished, [the 

defendant] be sentenced to a term of imprisonment of not less than 7 years.” For 

possession, the applicable sentence is “a term of imprisonment of not less than 5 

years.” § 924(c)(1)(A)(i). The district court’s finding vis á vis Count 3 is therefore 

inconsistent with the superseding indictment’s charge, and the jury’s finding, of 

possession rather than brandishing.

In reviewing the prejudicial effect of the deviation, we note that the district 

judge candidly stated that if he were not constrained by statutory maxima, he 

“would impose a sentence here that would not be a life sentence.” It therefore 

appears that the extra length on this count would not have been imposed in the 

absence of what we now view as a plain error. Additionally, we also find that this 

error “affected the fairness, integrity, or public reputation of the judicial 

proceedings.” McKinley, 732 F.3d at 1297. The evidence that Davis personally 

brandished the firearm he possessed during the robbery of the Little Caesar’s 

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restaurant is not “overwhelming and essentially uncontroverted.” Id. To the 

contrary, only one witness testified that a gun was pointed at her, and there is no 

evidence that Davis was the one who did it. Further, the jury had an opportunity to 

convict Davis of either (1) possessing a firearm in furtherance of the robbery or (2) 

using or carrying a firearm in furtherance of the robbery. Yet it only found that 

Davis possessed a firearm. We therefore will be constrained to vacate the 

extension of the sentence. In doing so, we observe on behalf of both the judge who 

entered the sentence and the counsel who did not raise the error that the trial in this 

case preceded the Supreme Court decision in Alleyne.

V. Eighth Amendment Claim 

Davis argues that the 162-year sentence, which obviously amounts to a life 

sentence, constitutes cruel and unusual punishment. In support of this proposition, 

he stresses that he was eighteen and nineteen years old at the time of the 

commission of the offenses, and suffered from bipolar disorder and a severe 

learning disability, and had no prior convictions. While these are no doubt 

significant factors, we can grant no relief on this issue. 

Allegations of cruel and unusual punishment are legal questions subject to 

our de novo review. United States v. Haile, 685 F.3d 1211, 1222 (11th Cir. 2012), 

cert. denied, __ U.S. __, 133 S. Ct. 1723 (2013). 

Davis argues that the mandatory consecutive nature of his sentence violated 

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the Eighth Amendment’s prohibition on cruel and unusual punishment. He views 

his sentence, totaling nearly 162 years, as grossly disproportionate when 

considering his youth, intellectual disability, and emotional maturity, and as 

especially harsh for a non-homicide offense. For its part, the Government relies on 

the rarity of successful proportionality cases for adult offenders outside the capital 

context. 

As applied to noncapital offenses, the Eighth Amendment encompasses at 

most only a narrow proportionality principle. United States v. Brant, 62 F.3d 367, 

368 (11th Cir. 1995) (citing Harmelin v. Michigan, 501 U.S. 957 (1991)). We 

accord substantial deference to Congress: “In general, a sentence within the limits 

imposed by statute is neither excessive nor cruel and unusual under the Eighth 

Amendment.” United States v. Johnson, 451 F.3d 1239, 1243 (11th Cir. 2006) 

(quotation omitted). We must first make the determination whether a total 

sentence is grossly disproportionate to the offenses committed. Id. In United 

States v. Farley, 607 F.3d 1294, 1339 (11th Cir. 2010), we held that the mandatory 

nature of a noncapital penalty is irrelevant for proportionality purposes, and 

observed that we have never found a term of imprisonment to violate the Eighth 

Amendment. Id. at 1343. Nor do we do so now. 

Here, Davis’s total sentence is unmistakably severe. However, a gross 

proportionality analysis necessarily compares the severity of a sentence to the 

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crimes of conviction, and Davis’s crimes were numerous and serious. Multiple 

victims experienced being robbed and threatened with a handgun. Davis’s use of a 

handgun entailed a risk or severe injury or death. Trial testimony established that 

Davis shot at a dog, and actually exchanged fire with a witness following the 

Wendy’s robbery. We cannot conclude that such repeated disregard for the law 

and for victims should overcome Congress’s determination of what constitutes an 

appropriate sentence, even when Eighth Amendment concerns are implicated.

VI. Sufficiency of the Evidence on Count 17

Davis contends that the district court erred by denying his motion for 

judgment of acquittal on Count 17 because, in his view, the evidence failed to 

establish that he facilitated a codefendant’s use of a firearm during the Mayor’s 

Jewelry Store robbery. We disagree.

We review de novo the district court’s denial of a motion for a judgment of 

acquittal on sufficiency of evidence grounds. United States v. Browne, 505 F.3d 

1229, 1253 (11th Cir. 2007). We consider the evidence in the light most favorable 

to the Government and draw all reasonable inferences and credibility choices in the 

Government’s favor. United States v. Friske, 640 F.3d 1288, 1290–91 (11th Cir. 

2011). 

Davis argues that there is insufficient evidence to support his conviction on 

Count 17 of the superseding indictment, which charges aiding and abetting a 

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codefendant’s possession of a firearm during the jewelry store robbery. In his 

estimation, the evidence does not show that he had prior knowledge of any gun 

before the jewelry store robbery. In fact, he tells us, the evidence establishes that 

he was not involved in the planning of the robbery, precluding his prior knowledge 

of the firearm. At most, the jury intuited that Davis had prior knowledge of the 

gun, which is an insufficient basis on which to sustain his conviction. 

The Government argues that a reasonable construction of the evidence 

demonstrates that Davis knew his codefendant would be carrying a gun during the 

jewelry store robbery and that Davis enjoyed the protection of the firearm during 

the commission of the robbery. According to the Government, its evidence 

constitutes a showing sufficient to support a conviction for aiding and abetting a 

codefendant’s possession of a firearm. 

Recently, the Supreme Court decided Rosemond v. United States, __ U.S. 

__, 134 S. Ct. 1240 (2014), in which it clarified the standard regarding the precise 

question before us: What must the Government show when it seeks to establish 

that a defendant is guilty of aiding or abetting the offense of using or carrying a 

firearm during a crime of violence? In Rosemond, the Court held that the 

Government must prove that the defendant “actively participated in the underlying

. . . violent crime with advance knowledge that a confederate would use or carry a 

gun during the crime’s commission.” Rosemond, 134 S. Ct. at 1243. 

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The Government, as part of its sufficiency argument, notes that Davis must 

have seen the gun during the robbery, and thus the knowledge element is met. We 

note that under Rosemond, such a scenario may constitute insufficient evidence if it 

means that Davis “at that late point ha[d] no realistic opportunity to quit the 

crime.” Rosemond, 134 S. Ct. at 1249. However, Davis does not argue his 

inability to retreat, and regardless, this point is beyond the scope of our analysis. 

We need only decide whether Davis had the requisite “advance knowledge” 

described in Rosemond. 

After Rosemond, and considering the evidence in the light most favorable to 

the Government, a reasonable construction of the evidence supports conviction on 

Count 17. The Government established that Davis drove from Miami-Dade 

County to the robbery site in Broward County with his codefendant, Fisher, who 

was the gunman. Both Davis and Fisher sat in the backseat, and the driver of the 

car turned and handed Fisher the handgun that would be used during the robbery. 

We agree with the Government and the district court that the jury could reasonably 

infer Davis’s knowledge of the gun, based on its evaluation of the evidence as 

tending to demonstrate that Davis saw the gun in the car. Likewise, the jury may 

have inferred knowledge based on its finding that Davis participated in prior 

robberies, or that he assisted in planning the jewelry store robbery. We leave the 

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jury’s finding on aiding and abetting in Count 17 undisturbed, as it was based on 

sufficient evidence.

VII. Accumulation of Trial Errors Claim

We need not linger long over Davis’s final claim. Davis contends that we 

should grant relief where “a combination of trial errors and prosecutorial 

misconduct [denies] a defendant a fair trial, regardless of whether the individual 

errors require reversal on their own.” Appellant’s Br. at 42 (citing United States v. 

Elkins, 885 F.2d 775 (11th Cir. 1989)). This is clearly correct as an abstract 

proposition of law, but it does not apply to this case. 

Our precedent counsels that a combination of trial errors and prosecutorial 

misconduct can serve to render a trial unfair, despite no single error requiring 

reversal. Id. at 787. However, such a combination is rare because “a conviction 

should be reversed only if ‘a miscarriage of justice would otherwise result.’” Id.

(quoting United States v. Young, 470 U.S. 1, 15 (1985)). This is not one of those 

rare cases.

As we make clear in our discussion above, the limited misconduct by the 

prosecutor was readily cured by the instruction of the trial court. The only 

cognizable error by the trial court is the admission of the cell site location 

information, which was at best understandable, given the uncertainty of the law on 

the subject, and at worst harmless, given that the evidence was admissible against 

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Davis, albeit on a different theory (the Leon exception) than that on which it was 

propounded.

CONCLUSION

For the reasons set forth above, we affirm the judgment of conviction and 

vacate only that portion of the sentence attributable to the enhancement for 

brandishing.

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