                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 16-1462
                                     _____________

                            UNITED STATES OF AMERICA

                                             v.

                                    JESSE BREWER,
                                                   Appellant
                                     _____________

                     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
                                     _____________

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                  September 6, 2017
                                   _____________

             Before: CHAGARES, JORDAN, HARDIMAN, Circuit Judges.

                          (Opinion Filed: September 18, 2017)
                                    ____________

                                        OPINION*
                                      ____________




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

                                            2
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.



                                             3
       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.
                                             4
                                             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).

                                              5
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-

                                             6
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

                                             7
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.




                                             8
       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.
                                             9
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.
                                            10
