NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 16-1462

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UNITED STATES OF AMERICA

v.

JESSE BREWER,

Appellant

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On Appeal from the United States District Court

for the Middle District of Pennsylvania

(Criminal No. 1-13-cr-00013-003)

District Judge: Honorable William W. Caldwell

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Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

September 6, 2017

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Before: CHAGARES, JORDAN, HARDIMAN, Circuit Judges.

(Opinion Filed: September 18, 2017)

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OPINION*

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* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

CHAGARES, Circuit Judge.

Jesse Brewer (“Brewer”) appeals his judgment of conviction for Hobbs Act 

robbery and use of a firearm during a crime of violence following a jury trial. Brewer 

argues that the District Court erred in denying his motions to suppress evidence. He also 

challenges his sentence as substantively unreasonable. We will affirm. 

I. 

On May 15, 2013, a grand jury returned a two-count superseding indictment 

against Brewer and two co-defendants, Jamell Smallwood and Timothy Forbes. The 

superseding indictment charged that on July 12, 2012, Brewer, Smallwood, and Forbes

committed armed robbery at White Jewelers in York, Pennsylvania in violation of 18 

U.S.C. § 1951 (Count 1, Hobbs Act robbery) and 18 U.S.C. § 924(c)(1)(A) (Count 2, use 

of a firearm during a crime of violence). 

The following events, which were captured by video surveillance, occurred during 

the robbery. The first male to enter the store, later identified as Smallwood, approached 

the store’s owner while brandishing a gun. A second robber, later identified as Brewer,

approached the store owner and shot him three times. Brewer then accidently shot 

Smallwood, striking him in the abdomen. A third robber, later identified as Forbes, then

entered the store with a hammer and a duffel bag. The three robbers proceeded to steal 

53 Rolex watches valued at approximately $575,000. The robbers fled the scene in a 

getaway car, and the York Area Regional Police began an investigation.

Smallwood was admitted to Bronx Lebanon Hospital in New York a few hours 

after the robbery. New York Police Department (“NYPD”) officers responded to Bronx
3

Lebanon Hospital to interview Smallwood. The NYPD officers contacted the York Area 

Regional Police to inquire about Smallwood and were advised of the White Jewelers 

robbery and that one of the robbers had been accidentally shot. Allentown Police officers 

then filed a criminal complaint against Smallwood and procured a warrant for his arrest. 

NYPD officers arrested Smallwood. At the time of his arrest, Smallwood had a cell 

phone in his possession. He admitted to the officers that it was his phone and that his 

phone number was (470) 334-5777 (hereinafter “cell phone 5777”). Appendix (“App.”) 

77–78. NYPD officers seized the phone and subsequently turned it over to investigating 

officers with the York Area Regional Police.

Investigating officers interviewed Forbes’ girlfriend on July 13, 2012. She viewed 

security camera footage of the White Jewelers robbery and identified Forbes as one of the 

robbers. She also identified Forbes’s cell phone number as (484) 707-1632 (hereinafter 

“cell phone 1632”). App. 76.

On July 20, 2012, investigating officers applied for and were granted search 

warrants for cell phone 5777, allegedly used by Smallwood, and cell phone 1632, 

allegedly used by Forbes. Investigators learned that cell phone 5777 was registered to 

Brewer. Additionally, a common call analysis of cell phones 5777 and 1632 revealed 

that both had multiple contacts with a third phone number, (347) 965-4252 (hereinafter 

“cell phone 4252”), around the time of the White Jewelers robbery. App. 92–93. This 

information was used to acquire a search warrant for cell phone 4252, which was also 

registered to Brewer. 
4

Brewer filed two motions to suppress evidence, one relating to cell phone 5777 

and one relating to cell phone 4252. The District Court denied Brewer’s motions to 

suppress on May 12, 2015. On September 16, 2015, at the conclusion of a three-day trial, 

the jury convicted Brewer on both counts. The District Court later sentenced Brewer to 

240 months on Hobbs Act robbery, followed by life imprisonment on the § 924(c) 

charge, to run consecutively. App. 4, 126. Brewer timely filed this appeal. 

II.1

On appeal, Brewer argues that the District Court erred in denying the motion to 

suppress the records associated with cell phone 5777, the phone seized from Smallwood 

at Bronx Lebanon Hospital. He next argues that the records relating to cell phone 4252

must be suppressed as the unlawful fruit of an illegal search. He last argues that his 

sentence was substantively unreasonable. We have considered Brewer’s arguments and 

for the reasons set forth below, we will affirm.2

 

1 The District Court had jurisdiction pursuant to 18 U.S.C. § 3231 because Brewer was 

charged with federal crimes. We have jurisdiction over this matter under 28 U.S.C. 

§ 1291.

2 We note that Brewer attempted to file a pro se “Motion File 28(J)” in which he sought 

to raise an additional issue relating to his designation as a career offender under the 

United States Sentencing Guidelines. The Clerk’s Office correctly advised Brewer by 

letter dated September 7, 2016 that this Court does not permit “hybrid” or dual 

representation, as he has an attorney of record. See 3d Cir. L.A.R. 31.3 (prohibiting the 

filing of a pro se brief when the appellant is represented by counsel and counsel has not 

filed a motion to withdraw under Anders v. California, 386 U.S. 738 (1967)); United 

States v. Turner, 677 F.3d 570, 579 (3d Cir. 2012) (noting that counsel “need not, and

should not, raise every . . . claim but rather may select among them in order to maximize 

the likelihood of success on appeal.” (alteration in Turner) (quoting Showers v. Beard, 

635 F.3d 625, 634 (3d Cir. 2011))). Because Brewer was represented by counsel, we 

typically would not need to address his pro se arguments. 
5

A.3

Brewer argues that the search relating to cell phone 5777 was invalid because the 

underlying affidavit lacked probable cause. The District Court concluded that Brewer did 

not have standing to challenge this search and, regardless, the search was proper. We 

agree. 

The Fourth Amendment protects against “unreasonable searches and seizures.” 

U.S. Const. amend. IV. A search does not occur for Fourth Amendment purposes unless 

the individual challenging the search “manifested a subjective expectation of privacy” in 

the object searched, and society recognizes that expectation as reasonable. Kyllo v. 

United States, 533 U.S. 27, 33 (2001) (quoting California v. Ciraolo, 476 U.S. 207, 211 

(1986)). Fourth Amendment rights are “personal in nature,” and a defendant has standing 

to challenge the admission of evidence only if his own legitimate expectation of privacy

 

The circumstances of this case are somewhat unique, however. Counsel initially filed a 

motion to withdraw, indicating that Brewer’s pro se filing was frivolous. Upon further 

reflection, however, counsel subsequently amended his motion to withdraw, urging 

remand so that the District Court could consider Brewer’s arguments in the first instance. 

We decline to do so. Because Brewer did not raise the sentencing issue before the 

District Court or in his opening brief to our Court, his arguments are entitled to, at most, 

to plain error review. See United States v. Moreno, 809 F.3d 766, 773 (3d Cir. 2016) 

(observing that plain error review applies to unpreserved challenges to the application of 

sentencing enhancements). Applying that standard of review and having thoroughly 

considered the relevant issues, we conclude that Brewer’s pro se arguments, as well as

those subsequently raised by counsel in his amendment to the motion to withdraw, lack 

merit.

3

“We review the denial of a motion to suppress for clear error as to the underlying 

factual determinations and exercise plenary review over the application of the law to 

those facts.” United States v. Williams, 417 F.3d 373, 376 (3d Cir. 2005). 
6

has been violated. Rakas v. Illinois, 439 U.S. 128, 140 (1978). Because “property rights 

are neither the beginning nor the end of [the Fourth Amendment] inquiry,” United States 

v. Salvucci, 448 U.S. 83, 91 (1980), a defendant who seeks to establish a subjective 

expectation of privacy in an object must show that he “took normal precautions to 

maintain his privacy.” United States v. Burnett, 773 F.3d 122, 131 (3d Cir. 2014) 

(quoting Rawlings v. Kentucky, 448 U.S. 98, 105 (1980)). 

Brewer maintains that he had a reasonable expectation of privacy in the 5777 cell 

phone because he was the listed subscriber of the phone. The District Court correctly 

concluded that whatever interest Brewer may have had in the phone did not amount to an 

actual, subjective expectation of privacy therein. The phone was seized directly from 

Smallwood, who claimed ownership and control of the phone. Additionally, Brewer did 

not establish that he maintained the ability to exclude others from the phone or took 

precautions to ensure the privacy of the phone. We agree with the District Court that 

Brewer lacked standing to challenge the warrant relating to cell phone 5777. 

Even if Brewer had standing to challenge the search of cell phone 5777, 

suppression was appropriate because the search warrant was valid. A magistrate may 

find probable cause to search “when, viewing the totality of the circumstances, ‘there is a 

fair probability that contraband or evidence of a crime will be found in a particular 

place.’” United States v. Hodge, 246 F.3d 301, 305 (3d Cir. 2001) (quoting Illinois v. 

Gates, 462 U.S. 213, 238 (1983)). Once the magistrate has made this initial 

determination, the task of a reviewing court is a “modest” one. United States v. Conley,

4 F.3d 1200, 1205 n.2 (3d Cir. 1993). A reviewing court owes the magistrate’s probable-
7

cause determination “great deference,” and it must leave that determination undisturbed 

“so long as the magistrate had a substantial basis for” finding probable cause. See Gates,

462 U.S. at 236 (citations and internal quotation marks omitted). 

The District Court did not err in concluding that there was a substantial basis for 

the Magistrate Judge’s probable cause determination. The affidavit provided ample facts 

evidencing Smallwood’s participation in the robbery. For instance, it stated that: (1) a 

robber matching Smallwood’s description was shot during the White Jewelers robbery; 

(2) Smallwood was shortly thereafter admitted to Bronx Lebanon Hospital as a shooting 

victim; and (3) Smallwood was previously associated with the same car seen fleeing from 

the scene of the robbery. App. 72–73. The affidavit further stated that Smallwood

claimed ownership of cell phone 5777 during his interview at the hospital and confirmed 

that it was in his possession. Given these facts, it was reasonable for the Magistrate 

Judge to conclude that evidence relating to Smallwood’s criminal activity would be found 

in cell phone 5777. The District Court did not err in denying Brewer’s motion to 

suppress the evidence relating to cell phone 5777.

B.

We turn next to Brewer’s argument that the District Court should have suppressed 

the records relating to cell phone 4252, which was also registered to Brewer. Brewer 

argues that the evidence obtained from cell phone 4252 must be suppressed as fruit of the 

poisonous tree because the affidavit submitted in support of the warrant for cell phone 

5777 was lacking. The fruit of the poisonous tree doctrine requires the suppression of 

“evidence gathered as a result of an unlawful search.” United States v. Coggins, 986 
8

F.2d 651, 653 (3d Cir. 1993) (citing Wong Sun v. United States, 371 U.S. 471 (1963)). 

As noted above, however, the warrant relating to cell phone 5777 was valid. Because the 

District Court properly concluded that the search of the 5777 cell phone was valid, it did 

not err in denying Brewer’s motion to suppress information from cell phone 4252 as the 

unlawful fruit of an illegal search. 

C.

We last address Brewer’s argument that his sentence of 240 months on Hobbs Act 

robbery and life imprisonment on the § 924(c) charge, to run consecutively, was

substantively unreasonable. Our review of a criminal sentence proceeds in two steps. 

First, we examine whether the district court committed a significant procedural error. 

United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc). We then consider 

whether the sentence imposed is substantively reasonable, that is, whether “the record as 

a whole reflects rational and meaningful consideration of the factors enumerated in 18 

U.S.C. § 3553(a).” Id. at 568 (quoting United States v. Grier, 475 F.3d 556, 571 (3d Cir. 

2007) (en banc)). The party challenging the sentence bears the burden in establishing 

unreasonableness. United States v. King, 454 F.3d 187, 194 (3d Cir. 2006). Because 

Brewer does not identify any procedural error, we will address only the substantive 

reasonableness of his sentence and review for abuse of discretion. Tomko, 562 F.3d at 

564. 
9

Brewer asserts that his sentence is substantively unreasonable because it was 

disproportionately higher than those of his co-defendants.4 A district court must consider 

the “need to avoid unwarranted sentence disparities among defendants with similar 

records who have been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). 

Section 3553(a) does not require district courts to consider sentencing disparities among 

co-defendants but permits them to do so. United States v. Parker, 462 F.3d 273, 277 (3d 

Cir. 2006). For the comparison to be relevant, the co-defendants must be “similarly 

situated.” Id. at 278. The comparison is not relevant, however, if one co-defendant has 

“a far less extensive criminal record” or “assisted in convicting his co-defendants.” Id.

We do not deem the co-defendants similarly situated to Brewer. Forbes, unlike 

Brewer, cooperated with the Government and testified against Brewer at trial. 

Additionally, although Smallwood did not cooperate, he did plead guilty. These facts 

suggest that any comparison with the co-defendants is likely irrelevant. See id.

In any event, Brewer’s conduct during the robbery is also distinguishable from 

that of his co-defendants. Unlike his co-defendants, only Brewer shot the shop owner 

during the robbery, requiring the victim to undergo five major surgeries, leaving him 

permanently disabled, and resulting in the loss of his livelihood. App. 125. These facts, 

among others, led the District Court judge to conclude that “you can’t find any 

victim . . . who’s had more difficulty,” and he “[could not] imagine a case that’s any 

more serious than this.” App. 125–26. Brewer also had an extensive criminal history, 

 

4 Smallwood was sentenced to 204 months of imprisonment. Forbes was sentenced to 

168 months of imprisonment. 
10

including multiple convictions involving weapons.5 App. 122–23. This prompted the 

District Court to conclude that “Brewer is going to continue to be a threat to the 

community and has learned nothing and has been undeterred by these prior experiences, 

which are serious.” App. 124–25. Because the District Court meaningfully considered 

the sentencing factors in § 3553(a), we conclude that the sentence imposed was 

reasonable.

III.

For the foregoing reasons, we will affirm the District Court’s judgment. 

 

5 Brewer had convictions for, inter alia, grand larceny, aggravated assault, and attempted 

robbery during which he held the victim at gunpoint. App. 122–23; Presentence 

Investigation Report ¶¶ 38–42.