                                                                 NOT PRECEDENTIAL


                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 16-1297
                                     _____________

                            UNITED STATES OF AMERICA

                                             v.

                             SCHIRMER MONESTIME
                                                Appellant
                      _____________________________________

                 On Appeal from the United States District Court for the
                                 District of New Jersey
                       (District Court No.: 2-14-cr-00618-001)
                     District Judge: Honorable Susan D. Wigenton
                     _____________________________________

                      Submitted under Third Circuit L.A.R. 34.1(a)
                                 on November 7, 2016

           Before: JORDAN, GREENAWAY, JR., and RENDELL, Circuit Judges

                            (Opinion Filed: January 27, 2017)

                                      ____________

                                      O P I N I O N*
                                      ____________


RENDELL, Circuit Judge,


       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
       This appeal stems from a drug-trafficking conspiracy that took place in Elizabeth,

New Jersey, from January through March of 2013. Three individuals were caught in the

operation: Bobby Lewis, who pled guilty, Joseph “Clifford” Jacques, who got away, and

Appellant Schirmer Monestime, who was convicted by a jury for one count of drug-

trafficking conspiracy in violation of 21 U.S.C. §§ 841 and 846. The District Court

subsequently sentenced Monestime to 63 months’ imprisonment and three years’

supervised release. By this appeal, Monestime argues that the District Court committed

three errors by: (1) denying Monestime’s pre-trial motion to suppress evidence; (2)

denying Monestime’s post-trial motion for a judgment of acquittal or, in the alternative, a

new trial; and (3) denying Monestime a mitigating role adjustment during sentencing.

For the reasons explained below, we will affirm the District Court’s ruling as to all three

of Monestime’s claims.

                                             I.

       The following sequence of events came to light through testimony at Monestime’s

suppression hearing and trial.

       In January 2013, Jacques offered Lewis $500 to accept a package mailed from

Haiti to Elizabeth, New Jersey. Lewis, who did not specifically know that the package

was supposed to contain nearly three kilograms of cocaine, agreed on the condition that

the package be sent to a different person’s attention at a building where Lewis’s aunt

lived. Jacques later notified Lewis that the package would be delivered in mid-February.

A Government investigation found that Jacques also notified Monestime, who had



                                             2
accepted Jacques’s offer to be a “contractor” for the package. The package was

ultimately returned to Haiti because Lewis did not arrive at the mailing address in time.

       Later in February, Jacques told Lewis that the package was being reshipped, and

they agreed that this time it would be sent to Lewis’s attention at his aunt’s address. But

when the package reached the Port of Miami, U.S. Customs and Border Protection

(“CBP”) officials discovered that it contained six framed paintings with cocaine secreted

inside the frames. The CBP officials alerted Department of Homeland Security

Investigations (“HSI”) agents based in Newark, New Jersey, about the discovery, and the

HSI agents decided to set up a controlled delivery to the original destination in Elizabeth.

When the package arrived in Newark, HSI agents retrieved nearly three kilograms of

cocaine and constructed new frames for the paintings that they packed with fake cocaine.

The agents then planned the controlled delivery of the package to Lewis’s aunt’s address

in Elizabeth, with over 15 agents assigned to the area to conduct surveillance.

       On March 4, 2013, Monestime drove Jacques, who was seated in the front

passenger seat, to pick up Lewis, and the three of them continued to Lewis’s aunt’s

address in Elizabeth, where Lewis was dropped off to wait for the package. Lewis

testified that he retrieved the package (unaware that the mail carrier was actually an

undercover postal inspector) and, following Jacques’s instructions, walked with it to a

nearby Bank of America parking lot after unwittingly passing surveilling agents along the

way. Once at the parking lot, Lewis called Jacques to let him know where he was, and

Monestime, still with Jacques, drove to him. Lewis waved toward them when they

arrived, and Monestime and Jacques circled the parking lot. They then exited the bank

                                             3
parking lot, driving past Lewis and an unmarked van of law enforcement agents. One of

those agents, James McDermott, testified that while in the van, he learned from other

surveilling agents in real time about the call and wave. McDermott testified that these

events – accepting a package and then immediately bringing it to a parking lot and

making a phone call; a car subsequently driving around a bank parking lot without

conducting a transaction; the package recipient waving toward that car – had raised his

suspicion at the time.

       Meanwhile, Lewis left the parking lot and took the package back to his aunt’s

home. The agents drove after Monestime and Jacques. Monestime testified that Jacques

then asked him to pull over, at which point Jacques exited, his cell phone fell on the

ground, and Jacques fled. Though McDermott did not see Jacques exit the car, he

testified that he saw the door on the front passenger’s side open and close, making him

suspicious that someone had fled on foot. The agents then drove closer to Monestime,

who immediately drove away, making several consecutive turns. McDermott testified

that Monestime’s driving signaled to him and the other agents that Monestime was

engaging in counter-surveillance, prompting them to pull Monestime over and order him

out of his vehicle.

       McDermott also testified that after the stop but before the arrest, he saw in plain

view in the console a cell phone that appeared to be missing its battery and SIM card, a

counter-surveillance tactic that McDermott testified is often employed by individuals in

narcotics investigations. Monestime, according to McDermott’s testimony, told

McDermott that the cell phone was his but had been in the car for months and that he had

                                             4
not used it that day. McDermott testified that Monestime told him he worked at a nearby

YMCA but did not have his work ID, and that he asked Monestime about his Haitian

nationality because when trafficking drugs, people “typically” receive packages from

their country of origin. Agent McDermott next arrested Monestime, searched the cell

phone for recent calls and contacts, and brought Monestime to HSI headquarters in

Newark for processing. Monestime later told McDermott, and ultimately testified, that

the cell phone actually belonged to Jacques.

       After interviewing Monestime at the station, Agent McDermott showed

Monestime a photo array that contained photographs of six men, one of whom was

named Clifford Jacques but was not the Jacques who had fled from Monestime’s van in

the parking lot. Monestime circled that man’s photograph and (mis)identified him as

Jacques. The same day it realized the error, the Government alerted Monestime that the

man he had selected was not his co-conspirator.

       A federal grand jury indicted Monestime on a single count of drug-trafficking

conspiracy in violation of 21 U.S.C. §§ 841 and 846. Monestime timely moved to

suppress his post-arrest statements and the evidence seized from him and his vehicle,

particularly the cell phone, arguing that they were the fruits of an illegal arrest. The

District Court denied Monestime’s suppression motion.

       A jury convicted Monestime following a four-day trial, and Monestime timely

moved for a judgment of acquittal or a new trial. The District Court denied that motion.

At sentencing, Monestime objected to the sentencing range calculated in the Presentence

Report and argued that he was entitled to a two-level mitigating role reduction.

                                               5
Monestime emphasized his role in the conspiracy relative to Lewis’s because Lewis had

received a two-level mitigating role reduction when sentenced by another judge. The

District Court overruled Monestime’s objection and sentenced him to 63 months’

imprisonment and three years’ supervised release. Monestime timely appealed.

                                             II.

       We now turn to Monestime’s three claims.1

A. Motion to Suppress

       Monestime’s motion to suppress averred that McDermott lacked probable cause to

arrest him and reasonable suspicion to stop him. Therefore, Monestime argued, all of his

post-arrest statements and all of the evidence seized from him and from his car should

have been suppressed. Monestime reiterates these arguments on appeal, adding that the

District Court applied the wrong standard in finding the arrest lawful. Appellant’s Br. 22.

We disagree.

       We review the District Court’s denial of a motion to suppress for clear error as to

the underlying factual findings and exercise plenary review of its application of the law to

those facts. United States v. Perez, 280 F.3d 318, 336 (3d Cir. 2002). “This review is

more deferential with respect to determinations about the credibility of witnesses, and

when the district court’s decision is based on testimony that is coherent and plausible, not



       1
        The District Court had subject matter jurisdiction under 18 U.S.C. § 3231. This
Court has jurisdiction over Monestime’s challenge to his conviction pursuant to 28
U.S.C. § 1291 and over Monestime’s challenge to his sentence pursuant to 18 U.S.C. §
3742(a).

                                             6
internally inconsistent and not contradicted by external evidence, there can almost never

be a finding of clear error.” United States v. Igbonwa, 120 F.3d 437, 441 (3d Cir. 1997).

       The Fourth Amendment requires that probable cause support a warrantless arrest.

U.S. Const. amend. IV; see also Devenpeck v. Alford, 543 U.S. 146, 152 (2004) (“[A]

warrantless arrest by a law officer is reasonable under the Fourth Amendment where

there is probable cause to believe that a criminal offense has been or is being

committed.”). “Probable cause to arrest exists when the information within the arresting

officer’s knowledge at the time of the arrest is sufficient to warrant a reasonable law

enforcement officer to believe that an offense has been or is being committed by the

person to be arrested.” Paff v. Kaltenbach, 204 F.3d 425, 436 (3d Cir. 2000). The

contours of the probable cause standard are well-established: it is a “practical,

nontechnical conception that deals with the factual and practical considerations of

everyday life on which reasonable and prudent men, not legal technicians, act. . . . [It] is a

fluid concept—turning on the assessment of probabilities in particular factual contexts—

not readily, or even usefully, reduced to a neat set of legal rules.” Maryland v. Pringle,

540 U.S. 366, 370–71 (2003) (citations and quotation marks omitted). “While probable

cause to arrest requires more than mere suspicion, the law recognizes that probable cause

determinations have to be made ‘on the spot’ under pressure and do ‘not require the fine

resolution of conflicting evidence that a reasonable doubt or even a preponderance

standard demands.’” Kaltenbach, 204 F.3d at 436 (quoting Gerstein v. Pugh, 420 U.S.

103, 121 (1975)). Importantly, probable cause assesses “not whether particular conduct



                                              7
is ‘innocent’ or ‘guilty,’ but the degree of suspicion that attaches to particular types of

non-criminal acts.” Illinois v. Gates, 462 U.S. 213, 243 n.13 (1983).

       Even without probable cause, “an officer may, consistent with the Fourth

Amendment, conduct a brief, investigatory stop when the officer has a reasonable,

articulable suspicion that criminal activity is afoot.” United States v. Valentine, 232 F.3d

350, 353 (3d Cir. 2000). “Reasonable suspicion is a less demanding standard than

probable cause.” Alabama v. White, 496 U.S. 325, 330 (1990).

       We find that the District Court applied the correct standard when assessing

Monestime’s warrantless arrest, and agree that McDermott had probable cause to arrest

Monestime.2 The District Court correctly noted that “the standard to determine whether

probable cause existed is certainly not beyond that of a reasonable doubt, which is what a

trial would require.” S.A. 73; see also Pringle, 540 U.S. at 371 (“Finely tuned standards

such as proof beyond a reasonable doubt or by a preponderance of the evidence . . . have

no place in the [probable-cause] decision.” (second alteration in original) (citation

omitted)). It also correctly acknowledged its obligation “to look at the totality of the


       2
          Though the District Court considered McDermott’s post-stop observation of the
cell phone in finding probable cause, we note that there may well have been probable
cause even before that based on Monestime’s counter-surveillance driving tactics. See
United States v. Frost, 999 F.2d 737, 743–44 (3d Cir. 1993) (finding probable cause
where defendant “acted furtively,” “employed counter-surveillance techniques,” and
“became nervous when engaged in conversation by two detectives” even though drug-
sniffing dogs did not alert to defendant’s suitcase); see also United States v. Soto, 375
F.3d 1219, 1222 (10th Cir. 2004) (“[E]vidence of counter-surveillance may support a
finding of probable cause.”); United States v. Payne, 119 F.3d 637, 642–43 (8th Cir.
1997); United States v. Ocampo, 937 F.2d 485, 490 (9th Cir. 1991); cf. United States v.
Martinez-Molina, 64 F.3d 719, 729 (1st Cir. 1995).

                                              8
circumstances” and “[w]hat the officers knew at the time of the stop, and the arrest.”

S.A. 73.

       Assessing McDermott’s testimony at the pre-trial suppression hearing, the District

Court found that “what the officers could have reasonably believed at the time is also

supported by the testimony given by Agent McDermott, which is that [he] believed that

[Monestime] was doing evasive maneuvers and that he had in fact detected that he was

being followed by law enforcement.” S.A. 75. The District Court appropriately

considered McDermott’s post-stop observation of the cell phone – finding that “it was

certainly valid that in [McDermott’s] training and experience, it was consistent with a

person who’s possibly looking to avoid detection and/or somehow to avoid being linked

to some type of activity” – before concluding that “there was probable cause for the

arrest.” Id. at 75–76. The information that McDermott personally observed and learned

in real time following the controlled delivery established more than enough probable

cause for McDermott to arrest Monestime, let alone sufficient reasonable and articulable

suspicion to stop him.3

       As the District Court noted, the only basis Monestime alleges for suppressing his

post-arrest statements is the arrest itself. Id. at 76. Because we find that Agent

McDermott had probable cause to arrest Monestime, that claim also fails.

       3
        Though Monestime rebuts McDermott’s suspicions with explanations of his
behavior, he cannot overcome the well-settled principle that “[a] determination that
reasonable suspicion exists . . . need not rule out the possibility of innocent conduct.”
United States v. Arvizu, 534 U.S. 266, 277 (2002); see also United States v. Ubiles, 224
F.3d 213, 217 (3d Cir. 2000) (“A reasonable suspicion of criminal activity may be
formed by observing exclusively legal activity.”).

                                             9
         We disagree with Monestime that the District Court should have suppressed all

evidence obtained from McDermott’s warrantless search of the recent calls and contacts

on the cell phone found on the console.4 Though the Supreme Court held in Riley v.

California that “a warrant is generally required . . . even when a cell phone is seized

incident to arrest,” 134 S. Ct. 2473, 2493 (2014), that decision was issued over a year

after the search at issue in this case. At the time of his search, McDermott relied in good

faith on then-agency practice to “search incident to arrest any phones to determine if

there [were] other co-conspirators in the area, and . . . to know anybody that [had] been

communicated with regarding the delivery.” S.A. 28–29; cf. United States v. Katzin, 769

F.3d 163, 182 (3d Cir. 2014) (en banc) (concluding that when agents act “upon an

objectively reasonable good faith belief in the legality of their conduct,” the good faith

exception to the exclusionary rule applies). Alternatively, the independent source

doctrine cuts against suppression: the Government eventually obtained a search warrant

for the cell phone, and there has been no showing that the initial warrantless search

affected the warrant application. See United States v. Stabile, 633 F.3d 219, 243 (3d Cir.

2011).


         4
          We question Monestime’s standing to bring his claim about that cell phone in the
first instance. Monestime said during the suppression hearing and at trial that the cell
phone was not his. McDermott testified that Monestime told him he did not use the cell
phone on the day in question, and that it had been in the vehicle for months. Monestime
therefore does not have a Fourth Amendment-protected interest in this cell phone. See
United States v. Padilla, 508 U.S. 77, 81 (1993) (per curiam) (“It has long been a rule
that a defendant can urge the suppression of evidence obtained in violation of the Fourth
Amendment only if that defendant demonstrates that his Fourth Amendment rights were
violated by the challenged search or seizure.”); see also Alderman v. United States, 394
U.S. 165, 174 (1969) (Fourth Amendment rights “may not be vicariously asserted.”).

                                             10
       Accordingly, we affirm the District Court’s denial of Monestime’s pre-trial

suppression motion in its entirety.

B. Motion for Judgment of Acquittal or a New Trial

       Following his guilty verdict, Monestime moved for a judgment of acquittal under

Fed. R. Crim. P. 29(a) or, in the alternative, a new trial under Fed. R. Crim. P. 33. The

District Court denied the motion, and we affirm. Monestime urges that the Government

fabricated evidence in the course of its investigation. We need not revisit this argument

at length.

       We exercise plenary review over a district court’s grant or denial of a Rule 29

motion, applying the same standard as the District Court. See United States v.

Salahuddin, 765 F.3d 329, 348 (3d Cir. 2014). In doing so, we “review the record in the

light most favorable to the prosecution to determine whether any rational trier of fact

could have found proof of guilt[] beyond a reasonable doubt based on the available

evidence.” Id. (alteration in original) (citation omitted). “The burden on a defendant

who raises a challenge to the sufficiency of the evidence is extremely high.” Id. (citation

omitted). We review a district court’s denial of a Rule 33 motion for abuse of discretion.

Id. at 346.

       Both Rules 29 and 33 set forth particularly difficult standards. Under Rule 29,

“only when the record contains no evidence, regardless of how it is weighted, from which

the jury could find guilt beyond a reasonable doubt, may an appellate court overturn the

verdict.” United States v. Syme, 276 F.3d 131, 156 (3d Cir. 2002) (citation omitted).

Under Rule 33, the District Court “can order a new trial on the ground that the jury’s

                                            11
verdict is contrary to the weight of the evidence only if it believes that there is a serious

danger that a miscarriage of justice has occurred—that is, that an innocent person has

been convicted.” United States v. Johnson, 302 F.3d 139, 150 (3d Cir. 2002) (citation

and quotation marks omitted).

       Monestime uses the Government’s error in compiling the photo array to contend

that “federal agents fabricated evidence in the course of its investigation.” Appellant’s

Br. 25. He argues that the Government’s “blatant fabrication of evidence tainted [its]

entire case and called in to serious question the integrity of any remaining evidence

within the custody and control of the investigating agents.” Id. at 26. As the District

Court noted, such arguments “relat[ing] to some type of manipulation of evidence” were

“raised at the time of trial” and “could have been and more than likely were considered

by the jury.” S.A. 519; see also Salahuddin, 765 F.3d at 348 (“[Defendant’s] arguments

about credibility and challenges to portions of the Government’s evidence were made to

the jury, who were free to reject them.”). Accordingly, we affirm the District Court’s

denial of the motion.

C. Sentencing

       Lastly, Monestime contests the District Court’s calculation of his sentencing range

under the Guidelines, arguing that he was entitled to a two-point reduction for a minor

role pursuant to U.S.S.G. § 3B1.2(b). The District Court considered and rejected this

argument. We review that finding for clear error. United States v. Self, 681 F.3d 190,

200 (3d Cir. 2012). “A decision is clearly erroneous if the reviewing court is left with the

definite and firm conviction based on all the evidence that the trial court made a

                                              12
mistake[,]” United States v. Perez, 280 F.3d 318, 351 (3d Cir. 2002), but “[w]here there

are two permissible views of the evidence, the factfinder’s choice between them cannot

be clearly erroneous.” United States v. Waterman, 755 F.3d 171, 174 (3d Cir. 2014)

(quoting Anderson v. Bessemer City, 470 U.S. 564, 574 (1985)). We find that the District

Court’s determination was not clearly erroneous.

       The Sentencing Guidelines permit the downward adjustment of a defendant’s

offense level if the defendant was “substantially less culpable than the average participant

in the criminal activity.” U.S.S.G. § 3B1.2 cmt. n.3. Specifically, the Mitigating Role

provision states in relevant part: “If the defendant was a minor participant in any

criminal activity, decrease by 2 levels.” U.S.S.G. § 3B1.2(b). “In determining whether

this adjustment is warranted, we have instructed district courts to consider such factors as

the nature of the defendant’s relationship to other participants, the importance of the

defendant’s actions to the success of the venture, and the defendant’s awareness of the

nature and scope of the criminal enterprise.” Self, 681 F.3d at 201 (citation and quotation

marks omitted). “We have also observed that ‘[t]he district courts are allowed broad

discretion in applying this section, and their rulings are left largely undisturbed by the

courts of appeal.’” Id. (quoting United States v. Isaza-Zapata, 148 F.3d 236, 238 (3d Cir.

1998)).

       Lewis, the co-conspirator who pled guilty and testified against Monestime,

received a two-level mitigating role reduction under U.S.S.G. § 3B1.2(b) when sentenced

by another judge. In his brief, Monestime emphasizes a number of similarities between

himself and Lewis, and aims to establish that he was not “any more aware of the scope

                                             13
and structure of the conspiracy than Lewis[,]” ultimately concluding that “[t]he only real

difference [between the two men] is that Lewis pled guilty and [Monestime] elected to go

to trial.” Appellant’s Br. 29–30. Even accepting Monestime’s argument that he and

Lewis were equally culpable – or that Monestime was less culpable – it cannot be said

that the District Court erred, much less clearly erred, in denying Monestime a mitigating

role adjustment.5 “[T]he mere fact that a defendant was less culpable than his co-

defendants does not entitle the defendant to ‘minor participant’ status as a matter of law.”

United States v. Brown, 250 F.3d 811, 819 (3d Cir. 2001). Monestime has neither made

any showing that he was “substantially” less involved than Lewis, U.S.S.G. § 3B1.2 cmt.

n.3, nor left us with the “definite and firm conviction based on all the evidence that the

trial court made a mistake.” Perez, 280 F.3d at 351. Accordingly, we affirm the District

Court’s sentence.

                                             III.

       In summary, for all of the foregoing reasons, we will affirm the District Court’s

denial of Monestime’s pre-trial motion to suppress evidence; denial of Monestime’s

motion for a judgment of acquittal or, in the alternative, a new trial; and denial of a

mitigating role adjustment during sentencing.



       5
         We agree with the District Court’s observation during sentencing that
Monestime’s explanations for his incriminating behavior “strain[] credibility.” S.A. 539.
In any event, “the District Court is under no obligation to accept as true the defendant’s
own characterization of his role in the criminal scheme” or “attribute to them any
particular evidentiary weight.” United States v. Rodriguez, 342 F.3d 296, 299, 300 n.5
(3d Cir. 2003).

                                             14
