                                                                       [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________                         FILED
                                                                     U.S. COURT OF APPEALS
                                                                       ELEVENTH CIRCUIT
                                     No. 03-15131
                                                                         September 20, 2005
                               ________________________                  THOMAS K. KAHN
                                                                             CLERK
                       D. C. Docket No. 02-00122-CR-T-24-EAJ

UNITED STATES OF AMERICA,

                                                                          Plaintiff-Appellee,

                                            versus

ALBERT TERRILL JONES,
a.k.a. Berto,
ELGIN RAY LOFTON,
a.k.a. E-Luv,
LUTHER FORD,
a.k.a. Chuck Ford,
RONALD RAY LANGDON,
MICHAEL WAYNE COBB,

                                                                     Defendants-Appellants.

                               ________________________

                      Appeals from the United States District Court
                           for the Middle District of Florida
                            _________________________
                                 (September 20, 2005)

Before TJOFLAT, PRYOR and ALARCON *, Circuit Judges.

       *
        Honorable Arthur L. Alarcon, United States Circuit Judge for the Ninth Circuit, sitting
by designation.
PER CURIAM:

         In this appeal, five defendants, each convicted of conspiracy to possess with

intent to distribute various illegal drugs, assert numerous challenges to their

convictions and sentences. Because the testimony at trial amply supported their

convictions, the defendants did not have a legitimate expectation of privacy in text

messages sent to or from another that precluded that other person from testifying,

and the district court did not err when it applied the Sentencing Guidelines, we

affirm each conviction and sentence.

I. BACKGROUND

         Albert Terrill Jones, Elgin Ray Lofton, Luther Ford, Ronald Ray Langdon,

and Michael Wayne Cobb were indicted on charges of conspiracy to possess with

intent to distribute five kilograms of cocaine, fifty grams of crack cocaine, and 100

kilograms of marijuana, in violation of section 841(a)(1) of Title 21 of the United

States Code. The conspiracy involved participants in California, Nevada,

Tennessee, and Florida who shipped drugs and money across the county by parcel

services. The conspirators used text message pagers to communicate with each

other.

         After the conspiracy was discovered, government agents identified

Marquette McCalebb as the leader or a major part of the conspiracy. Special Agent

                                            2
Kevin McLaughlin of the Drug Enforcement Agency learned from a former

conspirator that the conspirators communicated through text message pagers.

McLaughin contacted Skytel Communications, the service provider for the pagers.

McLaughlin also contacted Federal Express, the United States Postal Service,

Airborne Express, and DHL regarding shipments of drugs by mail.

      McCalebb was arrested in California, and his home was searched. Agents

discovered a large conspiracy ring that involved numerous participants: Jones,

Langdon, Lofton, Ford, Cobb, and others. Each defendant had a different role in

the conspiracy. Ford mailed packages containing drugs to Octavius Henderson and

Jones in Florida. Ford received $50 to $100 for each package shipped. [Rd. Br.

4]. Langdon supplied McCalebb with five to ten kilograms of cocaine per week.

[Rd. Br. 4]. Lofton, in Las Vegas, received drug proceeds on behalf of McCalebb.

[Rd. Br. 7]. Cobb and Jones, in Florida, received packages containing drugs. [Rd.

Br. 8-9].

      Skytel informed McLaughlin that it maintained records of the actual text

messages sent by pager, and Skytel would disclose the records if it received an

administrative subpoena. [Rd. Br. 18]. McLaughlin, therefore, served Skytel with

a subpoena for records of text messages sent on the defendants’ pagers. [Rd. Br.

18]. McLaughlin did not obtain a warrant. McCalebb, Jones, Cobb, and Langdon



                                         3
moved to suppress the text message records, [Rd. Br. 17], and the district court

determined that the defendants established a subjective expectation of privacy in

the text messages and suppressed the records. [Rd. Br. 19-20].

      McCalebb pleaded guilty to conspiring to possess with intent to distribute

five kilograms or more of cocaine in accordance with a written plea agreement, and

agreed to cooperate with the government. [Rd. Br. 21]. At the request of the

government, McCalebb’s attorney obtained records pertaining to McCalebb’s

pager from Skytel, which were forwarded to the government. Over the other

defendants’ objections, the district court ruled that McCalebb would be permitted

to testify regarding text messages he had sent to and received from his co-

defendants. [Rd. Br. 21]. McCalebb was the star witness of the government.

      A jury found Jones, Ford, Cobb, Langdon, and Lofton guilty of the charged

conspiracy. The district court sentenced Jones to 300 months, Ford to the

mandatory minimum sentence of 120 months, Cobb to 151 months, Langdon to

360 months, and Lofton to 188 months. Each defendant appealed.




                                          4
                           II. STANDARD OF REVIEW

      We review for abuse of discretion the evidentiary rulings of the district

court. Chrysler Intern. Corp. v. Chemaly, 280 F.3d 1358, 1360 (11th Cir. 2002).

We review de novo the denial of a motion for judgment of acquittal. United States

v. Peters, 403 F.3d 1263, 1268 (11th Cir. 2005). We review for abuse of discretion

the denial of a motion for new trial. United States v. Day, 405 F.3d 1293, 1297

(11th Cir. 2005).

      Whether the evidence presented at trial is sufficient to support the criminal

conviction is a question of law subject to de novo review. United States v. Diaz,

248 F.3d 1065, 1084 (11th Cir. 2001). “The evidence is viewed in the light most

favorable to the government and all reasonable inferences and credibility choices

are made in the government’s favor.” Id.

      We review de novo the application of the Sentencing Guidelines by the

district court, and review for clear error its findings of fact. United States v.

Crawford, 407 F.3d 1174, 1177-78 (11th Cir. 2005). We review de novo a

preserved error regarding the constitutionality of a sentence, United States v. Paz,

405 F.3d 946, 948 (11th Cir. 2005), but review for plain error an error raised for

the first time on appeal. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th

Cir. 2005).



                                            5
                                 III. DISCUSSION

      The five defendants each raise a number of issues on appeal. One issue is

common to Jones, Langdon, and Cobb: the admission of testimony by McCalebb

regarding text messages. We will first consider that common issue, and we will

then address the unique arguments of each defendant in turn.

 A. The District Court Did Not Abuse Its Discretion When It Admitted Testimony
              By McCalebb Regarding Text Messages He Received.

      Jones, Langdon, and Cobb argue that the district court abused its discretion

when it admitted testimony regarding the text messages from McCalebb’s pager.

The district court initially suppressed the text message records, which the

government had obtained by administrative subpoena from Skytel. The district

court nevertheless allowed testimony regarding the text messages when McCalebb

pleaded guilty and agreed to testify at trial. The district court concluded that

McCalebb could waive any privacy right he had with regard to the messages.

      “A person has an expectation of privacy protected by the Fourth Amendment

if he has a subjective expectation of privacy, and if society is prepared to recognize

that expectation as objectively reasonable.” United States v. Miravalles, 280 F.3d

1328, 1331 (11th Cir. 2002) (citing Katz v. United States, 389 U.S. 347, 361, 88 S.

Ct. 507, 516 (1967) (Harlan, J., concurring)). An individual’s right to privacy is

limited, however. “[T]he Fourth Amendment does not prohibit the obtaining of

                                           6
information revealed to a third party and conveyed by him to Government

authorities, even if the information is revealed on the assumption that it will be

used only for a limited purpose and the confidence placed in the third party will not

be betrayed.” United States v. Miller, 425 U.S. 435, 443, 96 S. Ct. 1619, 1624

(1976) limited by statute.

      We have not addressed previously the existence of a legitimate expectation

of privacy in text messages or e-mails. Those circuits that have addressed the

question have compared e-mails with letters sent by postal mail. Although letters

are protected by the Fourth Amendment, “if a letter is sent to another, the sender’s

expectation of privacy ordinarily terminates upon delivery.” United States v. King,

55 F.3d 1193, 1995-96 (6th Cir. 1995) (citations omitted). Similarly, an individual

sending an e-mail loses “a legitimate expectation of privacy in an e-mail that had

already reached its recipient.” Guest v. Leis, 255 F.3d 325, 333 (6th Cir. 2001);

United States v. Lifshitz, 369 F.3d 173, 190 (2d Cir. 2004). See also United States

v. Maxwell, 45 M.J. 406, 418 (C.A.A.F. 1996) (“Drawing from these parallels, we

can say that the transmitter of an e-mail message enjoys a reasonable expectation

that police officials will not intercept the transmission without probable cause and

a search warrant. However, once the transmissions are received by another person,

the transmitter no longer controls its destiny.”), cited in Guest, 255 F.3d at 333.



                                           7
      The government elicited testimony from McCalebb concerning text

messages that he sent or received through his pager. Because the defendants did

not have a reasonable expectation of privacy in the text messages received or sent

by McCalebb, the district court correctly permitted McCalebb to testify regarding

the content of those messages.

      The defendants also erroneously argue that the earlier ruling of the district

court suppressing the text messages is law of the case and precludes the later

decision to permit McCalebb to testify. Whether McCalebb could testify regarding

text messages that he sent and received was a separate issue from whether the

government was entitled to use text messages it obtained without a warrant, and the

earlier ruling was not law of the case for that issue. McCalebb’s testimony did not

violate the Fourth Amendment and suppression was not warranted.

                                 B. Albert Terrill Jones

1. Even If The District Court Abused its Discretion When it Admitted Rule 404(b)
                        Evidence, Any Error was Harmless.

      Jones argues that the district court abused its discretion when it admitted

evidence of Jones’s 1995 conviction, under Federal Rule of Evidence 404(b), to

prove his intent to conspire to distribute drugs. We need not address the

admissibility of that evidence, however, because any error of the district court was

harmless.

                                           8
      “[E]videntiary and other nonconstitutional errors do not constitute grounds

for reversal unless there is a reasonable likelihood that they affected the

defendant’s substantial rights; where an error had no substantial influence on the

outcome, and sufficient evidence uninfected by error supports the verdict, reversal

is not warranted.” United States v. Matthews, 411 F.3d 1210, 1229 (11th Cir. June

8, 2005). In Matthews, we concluded that we could not say that improperly-

admitted Rule 404(b) evidence was harmless because, “[d]espite the district court’s

limiting instruction, it seems fairly likely to us that the Government’s witnesses

seemed credible to the jury only because Matthews had been caught dealing drugs

once before.” 411 F.3d at 1230. This case is distinguishable from Matthews.

      Several other defendants were convicted along with Jones. The jury must

have found the testimony against the other defendants sufficiently credible to

convict them. It does not, therefore, seem “fairly likely” that the “Government’s

witnesses seemed credible to the jury” only because of Jones’s previous

conviction. Because there was ample testimony against Jones, any error in

admitting the Rule 404(b) evidence did not have substantial influence on the

outcome and was, therefore, harmless.

   2. The District Court Did Not Commit Plain Error When It Sentenced Jones.

      Jones argues that the district court erred, under United States v. Booker, 543



                                           9
U.S. ___, 125 S. Ct. 738 (2005), when it treated the Sentencing Guidelines as

mandatory in sentencing Jones. Because Jones did not preserve this argument in

the district court, we review it for plain error. United States v. Rodriguez, 398 F.3d

1291, 1298-1300 (11th Cir. 2005). Although, under Booker, the district court

plainly erred when it treated the Guidelines as mandatory, the plain error standard

also requires a showing that the plain error also affected Jones’s substantial rights.

Id. at 1301. Nothing in the record suggests that the district court would have

imposed a lesser sentence if it had applied the Guidelines in an advisory fashion.

Jones, therefore, cannot satisfy the plain error standard. Id.

                                   C. Luther Ford

1. The District Court Properly Denied Ford’s Motion for a Judgment of Acquittal.

      Ford argues that the district court erroneously denied his motion for a

judgment of acquittal, under Federal Rule of Criminal Procedure 29, because the

evidence was insufficient to prove his knowledge of and intent to join the

conspiracy. [Ford Br. 7]. “To uphold the denial of a Rule 29 motion, we need

only determine that a reasonable fact-finder could conclude that the evidence

established the defendant’s guilt beyond a reasonable doubt.” United States v.

Descent, 292 F.3d 703, 706 (11th Cir. 2002) (quotations and citation omitted).

      “To prove participation in a conspiracy, the government must have proven



                                          10
beyond a reasonable doubt, even if only by circumstantial evidence, that a

conspiracy existed and that the defendant knowingly and voluntarily joined the

conspiracy.” United States v. Garcia, 405 F.3d 1260, 1269 (11th Cir. 2005)

(citation omitted). “To satisfy this burden, the government need not prove that the

defendant[] knew all of the detail[s] or participated in every aspect of the

conspiracy. Rather, the government must only prove that the defendant[] knew the

essential nature of the conspiracy.” Id. at 1269-70 (quotations and citation

omitted). “Whether [the defendant] knowingly volunteered to join the conspiracy

may be proven by direct or circumstantial evidence, including inferences from the

conduct of the alleged participants or from circumstantial evidence of a scheme.”

Id. (quotations and citation omitted).

      Ford argues that the government did not introduce evidence that he

knowingly and voluntarily participated in the conspiracy and knowingly possessed

illegal drugs. [Ford Br. 8]. The government introduced evidence that Ford

routinely shipped packages for McCalebb to Jones and Henderson under the name

of Ford’s employer, and Ford received $50 to $100 for each package shipped. [R.

Br. 36]. This evidence was sufficient for a jury to conclude beyond a reasonable

doubt that Ford knowingly and voluntarily participated in the conspiracy, and the

district court did not err when it denied the motion for judgment of acquittal.



                                          11
        2. The District Court Did Not Abuse Its Discretion When it Denied
                          Ford’s Motion for a New Trial.

       Ford argues that a new trial was warranted because the verdict was against

the great weight of the evidence. To grant a motion for new trial because the

verdict is against the great weight of the evidence, “[t]he evidence must

preponderate heavily against the verdict, such that it would be a miscarriage of

justice to let the verdict stand.” United States v. Cox, 995 F.2d 1041, 1043 (11th

Cir. 1993). “Motions for new trials based on weight of the evidence are not

favored. Courts are to grant them sparingly and with caution, doing so only in

those really exceptional cases.” Id. (quotations and citation omitted).

       The district court denied Ford’s motion and stated that, “considering the

evidence presented at trial, the Court does not find that the weight of the evidence

contradicts the jury’s verdict as to [Ford].” [R52:2]. As discussed above, the

evidence showed that the other conspirators paid Ford to ship packages for

McCalebb to Jones and Henderson under the name of Ford’s employer. The

district court did not abuse its discretion.

                                  D. Elgin Ray Lofton

              1. The District Court Correctly Denied Lofton’s Motions
                     for Judgment of Acquittal and New Trial.

       Lofton argues that his motions for judgment of acquittal and new trial should



                                               12
have been granted because the testimony of McCalebb was so unbelievable as to

infect the entire trial. [Lofton Br. 39-40]. The evidence presented at trial

established that Lofton received drug proceeds from other conspirators and

delivered them to McCalebb. [Rd. Br. 37-38]. Lofton did not have a pager, but he

spoke with McCalebb regularly. [Lofton Br. 16]. Lofton received each month

$20,000 from Los Angeles and $30,000 to $60,000 from Tennessee and Florida.

[Lofton Br. 24]. The evidence was sufficient to support the verdict and the district

court did not err when it denied the motion for judgment of acquittal. Garcia, 405

F.3d at 1269-70. Additionally, the district court did not abuse its discretion when it

denied the motion for a new trial because the verdict was not against the great

weight of the evidence. Cox, 995 F.2d at 1043.

           2. The District Court Did Not Clearly Err when It Found that
               Lofton Was Not Entitled to a Minor-Role Reduction.

      Lofton also argues that the district court erred when it refused to grant a

reduction because of Lofton’s minor role in the offense, which he contends was

limited to receiving money. [Lofton Br. 42]. “A district court’s finding regarding

a defendant’s role in the offense is reviewed for clear error.” United States v.

Ryan, 289 F.3d 1339, 1348 (11th Cir. 2002). “A defendant warrants a two-level

reduction for playing a minor role in an offense if he is less culpable than most

other participants, although his role could not be described as minimal.” Id. (citing

                                          13
U.S.S.G. § 3B1.2, cmt. n.1). The analysis employed by the district court compares

the defendant’s role both to both the relevant conduct used in calculating his base

offense level and the conduct of the other conspirators:

      The district court conducts a two-pronged analysis of the defendant’s
      conduct to determine whether the defendant warrants a minor-role
      adjustment. First, the district court must assess whether a defendant’s
      particular role was minor in relation to the relevant conduct attributed
      to him in calculating his base offense level. Only if the defendant can
      establish that [he] played a relatively minor role in the conduct for
      which [he] has already been held accountable–not a minor role in any
      larger criminal conspiracy–may a downward adjustment be applied.
      The second prong of the analysis, if reached, requires the district court
      to assess a defendant’s relative culpability vis-a-vis that of any other
      participants.

Id. at 1348-49 (internal quotation marks and citations omitted). The defendant

bears the burden of showing his entitlement to the reduction. Id. at 1348.

      The district court found that Lofton did not have a minor role in the offense.

The district court based this finding on Lofton’s substantial activities, which

included Lofton’s receipt of at least 24 packages of drug proceeds [Rd. Br. 59] that

he changed into smaller bills and laundered. [Lofton Sent. Tr. 32]. The finding

of the district court was not clearly erroneous, because the evidence belies Lofton’s

arguments.

                              E. Ronald Ray Langdon

       1. The District Court Did Not Abuse Its Discretion When it Admitted
                     Evidence Seized From Langdon’s House.

                                          14
      Langdon argues that the district court erred when it denied his motion to

suppress evidence seized during an illegal search of his residence. [Langdon Br.

22-23]. Although the district court found that the warrant to search Langdon’s

residence was not supported by probable cause, the district court found that a good

faith exception applied to the search. [R329:2]. “Under [the] good faith exception

to the exclusionary rule, suppression is necessary only if the officers were

dishonest or reckless in preparing their affidavit or could not have harbored an

objectively reasonable belief in the existence of probable cause.” United States v.

Robinson, 336 F.3d 1293, 1296 (11th Cir. 2003) (quotations and citation omitted).

      An affidavit listed two pieces of evidence that supported the warrant:

      (1) four Express Mail labels addressed to “R. Langdon” or “R.
      London” written in what appears to be the same handwriting as some
      of the labels addressed to McCalebb and addressed to a different
      address than that which was ultimately searched and (2) a statement
      that DEA Agent McLaughlin informed him that text messages sent by
      co-defendant McCalebb identified Langdon as a supplier of six
      kilograms of cocaine to Preston Dent, an unindicted co-conspirator.

[R329:2]. The district court found that reliance on the warrant was in good faith

and reasonable, because “the affidavit was not reckless or dishonest or so lacking

in indicia of probable cause as to render official belief in its existence entirely

unreasonable.” [R329:3].

      We need not determine whether probable cause existed, because the good

                                           15
faith exception applies here. There is no evidence that the affidavit was dishonest

or recklessly prepared, and a reasonable officer could have believed that based on

the affidavit that there was probable cause to search Langdon’s residence. The

district court did not abuse its discretion when it admitted the evidence seized

during the search.

  2. The District Court Did Not Err When It Applied the Sentencing Guidelines.

      Langdon argues that the district court erroneously enhanced his sentence for

use of a firearm and obstruction of justice. An enhancement for obstruction of

justice is appropriate when the defendant has perjured himself. U.S.S.G. § 3C1.1

n.2. Langdon testified at the suppression hearing that he did not use code words

when communicating with his co-conspirators. [Langdon Sent. Tr. 11-12]. The

district court found that the testimony was false and applied the enhancement. This

finding was not clearly erroneous. [Langdon Sent. Tr. 19].

      Under section 2D1.1(b)(1) of the Sentencing Guidelines, a firearm

enhancement may apply if a defendant possessed a weapon during the offense:

      [I]f a defendant possessed a dangerous weapon during a
      drug-trafficking offense, his offense level should be increased by two
      levels. The commentary to § 2D1.1 explains that this firearm
      enhancement “should be applied if the weapon was present, unless it
      is clearly improbable that the weapon was connected with the
      offense.”

United States v. Audain, 254 F.3d 1286, 1289 (11th Cir. 2001) (quoting U.S.S.G. §

                                          16
2D1.1, comment. n.3). During the search of Langdon’s residence, two firearms

were found, one on the bed in the master bedroom and one in the closet. Money

was found nearby, and there were drugs in the residence. [Langdon Sent. Tr. 33].

The district court did not clearly err when it found that it was not clearly

improbable that the firearms were connected to the drug trafficking offense.

[Langdon Sent. Tr. 33].

                               F. Michael Wayne Cobb

          1. The Evidence Was Sufficient to Support Cobb’s Conviction.

      Cobb argues that the evidence presented was insufficient to show that he had

knowledge of the conspiracy. [Cobb Br. 24]. The evidence at trial showed that

Cobb helped distribute the cocaine and marijuana, picked up packages of drugs

from two individuals, paid for the delivery services, delivered drug proceeds,

mailed drug proceeds to Lofton in Las Vegas, and sold cocaine to Sullivan. [Rd.

Br. 37]. The testimony in the record amply supports Cobb’s conviction.

        2. The District Court Did Not Clearly Err When It Determined that
               Lofton Was Not Entitled to a Minor-Role Reduction.

      The district court found that Cobb did not have a minor role in the

conspiracy compared to the other conspirators. [Cobb Sent. Tr. 25]. Based on the

testimony at trial described above, the finding of the district court was not clearly

erroneous. See Ryan, 289 F.3d at 1348-49.

                                           17
                                IV. CONCLUSION

      Each of the arguments of the defendants fails. The convictions and

sentences imposed by the district court are, therefore,

      AFFIRMED.




                                          18
TJOFLAT, Circuit Judge, specially concurring:

      I concur in the court’s judgment. I write briefly, and separately, with respect

to Part III, B, 2 of the court’s opinion, which addresses Albert Jones’s sentence,

specifically his Booker claim. Adhering to binding precedent—United States v.

Rodriguez—as it must, the court refuses to entertain the claim because “[n]othing

in the record suggests that the district court would have imposed a lesser sentence

if it had applied the Guidelines in an advisory fashion.” Ante at ___. In other

words, Jones failed to establish the third element of the plain-error test, i.e.,

prejudice that “affected his substantial rights.” Id. For the reasons I expressed in

United States v. Thompson, No. 04-12218, 2005 WL 2099784, at *17-19 (11th

Cir. Sept. 1, 2005), we should not expect to find anything in the record indicating

that the court would have imposed a lesser sentence if it had treated the Guidelines

as advisory rather than mandatory. To expect a pre-Booker court to say, at

sentencing, that it would impose a lesser sentence were the Guidelines not

mandatory would be to expect the court to have anticipated Booker and the new

sentencing model it fashioned. I suggest that no one—save the justices of the

Supreme Court—could have anticipated that model. This is one of the reasons

why I contend that Rodriguez was wrongly decided. United States v. Rodriguez,

406 F.3d 1261, 1281 (11th Cir. 2005) (Tjoflat, J., dissenting from the denial of



                                            19
rehearing en banc). But Rodriguez remains the law; thus, Jones’s sentence must be

affirmed.




                                       20
