          Case: 17-10289   Date Filed: 08/14/2018   Page: 1 of 17



                                                                    [PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                            No. 17-10289
                      ________________________

                D.C. Docket No. 1:15-cr-00255-ELR-AJB-1


UNITED STATES OF AMERICA,
                                                     Plaintiff-Appellee,
versus

LLOYD JOYNER,
                                                     Defendant-Appellant.
                      ________________________

                            No. 17-10826
                      ________________________

                D.C. Docket No. 1:15-cr-00255-ELR-AJB-2


UNITED STATES OF AMERICA,
                                                     Plaintiff-Appellee,
versus

DAVE STURGIS, JR.,
                                                     Defendant-Appellant.
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                          _______________________________
                      Appeals from the United States District Court
                          for the Northern District of Georgia
                        _______________________________
                                       (August 14, 2018)
Before WILLIAM PRYOR and JULIE CARNES, Circuit Judges, and ANTOON, ∗
District Judge.

PER CURIAM:

       After a six-day trial, a jury found Lloyd Joyner and Dave Sturgis, Jr. guilty

of multiple counts of Hobbs Act robbery and brandishing a firearm during a crime

of violence, in violation of 18 U.S.C. §§ 1951(a) and 924(c)(1)(a)(ii), respectively.

In these consolidated appeals, Joyner and Sturgis raise many issues, but having

reviewed the briefs and the record, and with the benefit of oral argument, we find

only one to have merit. Accordingly, we vacate Joyner’s sentence and remand his

case for resentencing; we affirm in all other respects.

                                  I.      BACKGROUND

     Joyner and Sturgis, along with another co-Defendant, Joseph Stowers, were

charged with robbing several CVS and Walgreens drugstores in the Atlanta

metropolitan area during May and June 2015. Specifically, all three were charged

with robbing a Walgreens on June 16, a different Walgreens on June 18, and a

CVS on June 19. Additionally, they were charged with brandishing a firearm

∗
   Honorable John Antoon II, United States District Judge for the Middle District of Florida,
sitting by designation.
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during each of those robberies, and Joyner alone was charged in three other counts

with robbing a CVS on May 27 and two CVS stores on June 4. The tenth and final

count of the superseding indictment charged Joyner and Sturgis with committing

attempted robbery on June 24; law enforcement officers observed Joyner and

Sturgis casing two CVS stores that night and arrested them after they exited the

parking lot of one of those stores in Joyner’s car.

       Prior to trial, the district court denied several motions, including motions by

Joyner for new counsel and motions to suppress cell site data obtained from

wireless carriers without a search warrant. The jury returned guilty verdicts on

nine of the ten counts, acquitting Joyner and Sturgis only on the attempted robbery

charge. Joyner was sentenced to 480 months in prison; Sturgis, to 384 months. 1

       On appeal, Joyner and Sturgis primarily argue that the district court erred in

providing the superseding indictment to the jury during deliberations without

repeating the instruction that the indictment is not evidence of guilt, and they also

challenge the district court’s refusal to suppress cell site data. Additionally, Joyner

contends that the trial court abused its discretion in denying his motions for new




       1
          Before sentencing, one of the three firearm counts was dismissed on the Government’s
motion. Joyner’s 480-month sentence consists of concurrent sentences of 96 months on each of
the six robbery counts, plus consecutive statutory mandatory minimum sentences of 84 months
and 300 months on the two remaining firearm counts. Sturgis received a sentence of zero
months on the three robbery counts against him but, like Joyner, he received consecutive
statutory mandatory minimum sentences of 84 months and 300 months on the firearm counts.
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counsel and his motion for mistrial based on an alleged Bruton 2 violation. Joyner

also asserts error in the total offense level and resulting Guidelines range relied

upon by the district court at his sentencing. We address only these contentions; on

the other issues raised, we affirm without further discussion.3

                                    II.    DISCUSSION

   A. The District Court Did Not Reversibly Err By Declining to Repeat a Jury
      Instruction When It Provided the Indictment to the Jury.
       After the jurors began their deliberations, they sent a note to the trial judge

asking for a list of the dates and locations of each robbery, as well as a list of times

that each robbery took place. The judge discussed this two-part question with

counsel, and during that discussion she realized that although she had told the

jurors that they would receive a copy of the indictment, she inadvertently had not

yet provided it to them. The jurors thus were attempting to complete a verdict

form that listed the charged robberies only by count number, with no indication of

which date and location corresponded to which count.

       The judge told counsel that “they definitely need a copy of the indictment,”

but Joyner’s counsel objected to giving the jury the indictment at that point

“because of the context of the question that they’ve asked.” Sturgis’s counsel did

not oppose the jury being given the indictment but asked the judge to give a
       2
         Bruton v. United States, 391 U.S. 123 (1968).
       3
         We find no merit to the argument that there was not probable cause to arrest appellants
or to Sturgis’s contention that evidence did not support the district court’s order that he pay
$7,130 in restitution.
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cautionary instruction reminding the jury that the indictment is not evidence;

Joyner’s counsel agreed with that suggestion. The judge declined to reinstruct the

jury on that issue or any other, though she acknowledged: “Maybe there’s no harm

in doing that, at least to remind them of that, but I just don’t see the necessity for

it.”

       The judge called the jury back into the courtroom and noted their question

about the dates and locations of each robbery. She then apologized for not having

provided the jury with a copy of the indictment, and she told the jurors it would be

provided to them momentarily. The judge explained that the indictment contained

“the 10 counts that are alleged in this case” and that “in each count, the date and

location of the particular robbery being alleged is set forth.” The judge then said:

“So I hope that that helps you with respect to your first part of the request.” With

regard to the second part of the jury’s note, which requested a list of times that

each robbery took place, the judge noted that the indictment did not allege any

specific times and told the jurors: “So you will have to rely on the evidence that

was presented to you during the case.” Joyner and Sturgis contend that in

responding to the jury’s note in this manner, the district court misled and confused

the jury by suggesting that the indictment was evidence of guilt.

       “We review a district court’s response to a jury question for an abuse of

discretion.” United States v. Lopez, 590 F.3d 1238, 1247 (11th Cir. 2009).

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Likewise, “[a] district court’s refusal to give a requested jury instruction is

reviewed for abuse of discretion, and ‘[w]e reverse when we are left with a

substantial and ineradicable doubt as to whether the jury was properly guided in its

deliberations.’” Id. at 1248 (second alteration in original) (quoting United States v.

Grigsby, 111 F.3d 806, 814 (11th Cir. 1997)).

      While it would have been prudent for the trial court to have reminded the

jurors that the indictment is not evidence when the indictment was belatedly

provided to them during their deliberations, the trial court did not abuse its

discretion in handling the jury’s question as it did. The judge had already told the

jury at least twice that the indictment is not evidence of guilt—once during

preliminary instructions at the beginning of the trial, and again after the close of

evidence when full instructions on the law were given. And the court’s

instructions further informed the jury that the Government had the burden of

proving beyond a reasonable doubt that the charged crimes were committed on a

date reasonably close to the date alleged.

      “[T]he Supreme Court has repeatedly held that we must presume that juries

follow their instructions,” and “[w]e have obediently followed” that direction.

United States v. Roy, 855 F.3d 1133, 1186–87 (11th Cir. 2017) (en banc). Here,

the trial court did not tell the jury that it could rely on the indictment as evidence of

guilt, and it did not remove any elements of the crimes from the jury’s

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consideration. And as the Government aptly notes, this case was not about

whether the robberies took place—clearly, someone robbed these stores. At issue

was the identity of the robbers and whether these defendants were the perpetrators

of the crimes charged. The jury was properly instructed, and we are not “left with

a substantial and ineradicable doubt as to whether the jury was properly guided in

its deliberations.” Lopez, 590 F.3d at 1248 (quoting Grigsby, 111 F.3d at 814).

Thus, no abuse of discretion has been shown.

   B. The District Court’s Denial of Motions to Suppress Cell Site Data Does not
      Warrant Reversal.
      Joyner and Sturgis both argue that their cell phone records—including “cell

site data” with which prosecutors demonstrated their proximity to the locations of

the robberies—should not have been allowed into evidence at trial because the

records were obtained without a warrant and thus in violation of the Fourth

Amendment. Although the Supreme Court recently agreed with this argument in a

similar case and held that a search warrant indeed is generally required to obtain

such cell site data, the Supreme Court’s intervening decision does not afford

Joyner or Sturgis relief in this appeal.

      The Government obtained the cell site data at issue here through three court

orders issued pursuant to the Stored Communications Act (SCA), 18 U.S.C. §§

2701–2711. The SCA provides that a governmental entity may require a cellular

provider to disclose subscriber records if the governmental entity obtains a court

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order after offering “specific and articulable facts 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(c)(1)(B), (d).

The required showing to obtain an order under the SCA is less than the probable

cause required for a search warrant.

      On May 5, 2015—about six weeks before the Government obtained the SCA

orders challenged in this case—we held that a § 2703(d) SCA order allowing

government access to a cellular provider’s records “comports with applicable

Fourth Amendment principles and is not constitutionally unreasonable.” United

States v. Davis, 785 F.3d 498, 518 (11th Cir. 2015) (en banc). The district court

was constrained to rely on this binding precedent and correctly did so in denying

Joyner’s and Sturgis’s motions to suppress cell site data. And Joyner and Sturgis

acknowledge in their appellate briefs that the district court had no choice but to

follow Davis; they note that they raised this issue to preserve it pending a decision

in Carpenter v. United States, which was argued before the Supreme Court on

November 29, 2017.4 The Supreme Court issued its decision in Carpenter, 138 S.

Ct. 2206 (2018), on June 22, 2018, concluding that “[t]he Government’s

acquisition of the cell-site records was a search within the meaning of the Fourth




      4
          In his opening brief, Sturgis also urged this Court to reconsider Davis.
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Amendment,” id. at 2220, and that “the Government must generally obtain a

warrant supported by probable cause before acquiring such records,” id. at 2221.

       But Carpenter does not affect our alternative rationale in Davis—“that the

prosecutors and officers . . . acted in good faith and therefore, under the well-

established Leon exception [to the warrant requirement], the district court’s denial

of the motion to suppress did not constitute reversible error.” 785 F.3d at 518 n.20

(citing United States v. Leon, 468 U.S. 897, 919–21 (1984)). The Government has

maintained throughout this case that it acted in good faith and that the Leon

exception therefore applies; neither Sturgis nor Joyner presented any argument or

evidence to either the district court or this Court to counter that proposition. They

have instead relied on their assertion of a warrant requirement and their hope that

Carpenter would come down in their favor, 5 but the fact that the Carpenter Court

agreed with their Fourth Amendment theory does not affect the applicability of the

Leon good faith exception in this case. See, e.g., United States v. Chavez, 894 F.3d

593, 608 (4th Cir. 2018) (post-Carpenter case noting that “[w]hile Carpenter is

obviously controlling going forward, it can have no effect on” cases where law

enforcement acted in “[o]bjectively reasonable good faith,” which “includes

‘searches conducted in reasonable reliance on subsequently invalidated statutes’”

       5
         Sturgis did briefly assert in his motion to suppress “that the government lacked the
requisite specific and articulable facts to show that the data and records sought were relevant and
material,” but the district court found otherwise and Sturgis has not challenged that finding on
appeal.
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(quoting Davis v. United States, 564 U.S. 229, 239 (2011))). Here, the

Government complied with the requirements of the SCA in obtaining the orders to

compel cell site records, and when they did so in June 2015, that warrantless

procedure was, under this Court’s precedent, within the bounds of the Fourth

Amendment. Thus here, as in Davis, under the Leon exception to the warrant

requirement, the district court’s denial of the motions to suppress is not reversible

error.

   C. The District Court Did Not Abuse Its Discretion in Denying Joyner’s
      Motions for New Counsel.

         Joyner filed three motions for new counsel prior to trial and a fourth after

trial but before sentencing. The assigned magistrate judge denied all four motions

after holding hearings on each. We review those rulings for abuse of discretion,

United States v. Calderon, 127 F.3d 1314, 1343 (11th Cir. 1997), and find no such

abuse here.

         “Although the Sixth Amendment [of the United States Constitution]

guarantees counsel, it does not grant defendants the unqualified right to counsel of

their choice.” United States v. Garey, 540 F.3d 1253, 1263 (11th Cir. 2008) (en

banc). An indigent criminal defendant for whom counsel has been appointed does

not have a right “to demand a different appointed lawyer except for good cause.”

Thomas v. Wainwright, 767 F.2d 738, 742 (11th Cir. 1985). “Good cause in this


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context means a fundamental problem, ‘such as a conflict of interest, a complete

breakdown in communication or an irreconcilable conflict which leads to an

apparently unjust verdict.’” Garey, 540 F.3d at 1263 (quoting United States v.

Young, 482 F.2d 993, 995 (5th Cir. 1973)).

      Joyner argued to the magistrate judge that there was a complete breakdown

in communication between him and his appointed counsel, but the magistrate judge

conducted a thorough inquiry into Joyner’s allegations, and the district court did

not abuse its discretion in concluding that there was not a “total lack of

communication between the defendant and his counsel thereby preventing an

adequate defense.” Calderon, 127 F.3d at 1343. The magistrate judge held three

separate hearings, providing Joyner the opportunity to explain, in person, the

concerns that he identified in all four of his motions. Joyner argues that he made

clear that he lacked “faith in counsel’s ability to represent him” and that they had

“differences” about the strategy for his defense “every time [counsel] visit[ed]

[Joyner].” But we have held that “[a] defendant’s general loss of confidence or

trust in his counsel, standing alone, is not sufficient [for good cause to demand new

appointed counsel].” Thomas, 767 F.2d at 742. We have explained that “[t]he

exception for good cause protects the right to effective assistance of counsel; if

good cause exists, a defendant no longer has effective representation.” United

States v. Jimenez-Antunez, 820 F.3d 1267, 1271 (11th Cir. 2016). And the

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magistrate judge correctly explained that counsel was obliged to “challenge

[Joyner’s] positions” that did not “make any sense or [were] not relevant” because

he was “sworn . . . to represent [Joyner]” and was “looking out for [his] best

interest.” For example, Joyner testified that counsel refused to heed his argument

that the police used excessive force when they arrested him and searched his car.

But the magistrate judge explained that Joyner’s argument “wouldn’t keep the

evidence [that he sought to suppress] from coming in at trial.” Because Joyner did

not establish good cause, the district court correctly denied his motions for new

appointed counsel.

   D. The District Court Did Not Err in Rejecting Joyner’s Bruton Argument.

      During trial, the Government asked David Fitzgibbons, an FBI agent who

interviewed Sturgis after his arrest, whether Sturgis said anything about where he

lived. Agent Fitzgibbons responded that Sturgis said “that he had his own

apartment . . . [b]ut he had been staying the last few nights with Mr. Lloyd Joyner.”

Joyner’s counsel argued that this testimony violated Bruton v. United States, 391

U.S. 123 (1968), in which the Supreme Court held that admission of a co-

defendant’s confession that implicated the defendant in a joint trial violated the

defendant’s right of cross-examination under the Confrontation Clause of the Sixth

Amendment. He argued that the testimony was “a critical link in the chain” of

evidence against Joyner. The district court rejected Joyner’s argument.

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      Agent Fitzgibbons then further testified that Sturgis told him that on the

night of his and Joyner’s arrests, “they had left the apartment,” “went to go see his

son for a little while,” and “then they drove to the CVS in Marietta at 300 Powder

Springs Street” but that Sturgis did not mention first stopping at another CVS

where the police had observed the car before they concluded that its occupants

were casing the two stores. Agent Fitzgibbons also recounted that Sturgis told him

that the 9 millimeter Beretta firearm found in the vehicle belonged to him.

Joyner’s counsel did not object to this later testimony when it was given, though at

the conclusion of Agent Fitzgibbons’ testimony—thirty-five transcript pages

later—Joyner’s counsel told the court, “I just want to complete the record on my

Bruton motion.” He then suggested that the “natural implication” of Sturgis’s

statement about owning the Beretta was “that the other gun belonged to Mr.

Joyner,” and he asserted that the statement that “they left the apartment together”

implicated Joyner.

      Preserved evidentiary rulings and denials of motions for mistrial are

reviewed for abuse of discretion. United States v. Turner, 474 F.3d 1265, 1275

(11th Cir. 2007); United States v. Wright, 392 F.3d 1269, 1274 (11th Cir. 2004).

Bruton issues as to which no timely objection is made are reviewed only for plain

error. Turner, 474 F.3d at 1275.




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      Under either standard of review, the trial court did not err in finding no

Bruton violation here. “This Court has read Bruton to exclude only those

statements by a non-testifying defendant which directly inculpate a co-defendant.”

United States v. Beale, 921 F.2d 1412, 1425 (11th Cir. 1991). We have

emphasized that “admission of a codefendant’s statement is not error under Bruton

where the statement ‘was not incriminating on its face, and became so only when

linked with evidence introduced later at trial.’” United States v. Arias, 984 F.2d

1139, 1142 (11th Cir. 1993) (quoting Richardson v. Marsh, 481 U.S. 200, 208

(1987)). “Thus, ‘[f]or Bruton to apply, a codefendant’s statement must be clearly

inculpatory standing alone.’” Id. (alteration in original) (quoting United States v.

Satterfield, 743 F.2d 827, 849 (11th Cir. 1984)).

      None of the statements challenged by Joyner was “clearly inculpatory

standing alone,” and thus no error has been shown. Joyner explains that he

objected to the testimony that Sturgis had been staying in Joyner’s apartment

“because it was a link in the chain of evidence” against Joyner “based on

[incriminating] items that had been seized from the apartment.” But Joyner’s “link

in the chain” objection describes precisely the kind of statement that poses “[n]o

Bruton problem.” United States v. Brazel, 102 F.3d 1120, 1140 (11th Cir. 1997).

Indeed, the district court had discretion to conclude that the statement was

exculpatory for Joyner because he could argue that Sturgis owned the

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incriminating items that were found in Joyner’s apartment. For similar reasons,

there was no Bruton violation when the district court admitted Sturgis’s other two

statements. One statement was a facially innocent account of Sturgis and Joyner’s

whereabouts leading up to their arrests at the CVS on Powder Springs Street. And

Sturgis did not “directly inculpate” Joyner when Sturgis took responsibility for one

of the two guns found in Joyner’s car. Beale, 921 F.2d at 1425. We reject

Joyner’s suggestion that the “natural implication” of Sturgis’s claiming of one gun

was “that the other gun belonged to . . . Joyner.”

   E. As Conceded By The Government, Joyner Should Be Resentenced Under a
      Correct Offense Level and Guidelines Range.
      In calculating Joyner’s adjusted offense level in the presentence report, the

Probation Office applied U.S.S.G. § 3D1.4 to determine the combined offense

level for the multiple counts of conviction. This guideline provides for an increase

in offense level based on the number of “units” involved as defined in the

guideline. The Probation Office determined that there were 5 “units” for purposes

of this guideline and then added 5 levels to Joyner’s offense level.

      But USSG § 3D1.4 prescribes a 4-level increase for 5 units, not a 5-level

increase. This error went unnoticed by both the district court and the parties, and

the court sentenced Joyner using an incorrect total offense level of 32 and,

applying a criminal history category of I, a resulting Guidelines range of 121–151



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months.6 The correct total offense level is 31, which yields a Guidelines range of

108–135 months.

       We review sentencing issues not raised in the district court for plain error,

and we may correct the error only if it affects substantial rights. United States v.

Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005). Ordinarily, a defendant can

establish an effect on substantial rights by “‘show[ing] a reasonable probability

that, but for the error,’ the outcome of the proceeding would have been different.”

Molina-Martinez v. United States, 136 S. Ct. 1338, 1343 (2016) (quoting United

States v. Dominguez Benitez, 542 U.S. 74, 76 (2004)). In Molina-Martinez, the

Supreme Court noted that “[w]hen a defendant is sentenced under an incorrect

Guidelines range . . . the error itself can, and most often will, be sufficient to show

a reasonable probability of a different outcome absent the error,” id. at 1345, and

the Court recently reaffirmed this principle in Rosales-Mireles v. United States,

138 S. Ct. 1897, 1907 (2018).

       Here, the Government conceded both in its briefs and at oral argument that it

was error to increase Joyner’s offense level by 5 levels rather than 4 and that

Joyner should be resentenced. In light of this concession, we vacate Joyner’s

sentence and remand for resentencing under the correct offense level and resulting

Guidelines range.

       6
        This Guidelines range does not include the statutory mandatory minimum sentences of
84 months and 300 months on the firearm counts.
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                              III.   CONCLUSION

      In summary, we affirm both appellants’ convictions but vacate Joyner’s

sentence and remand his case to the district court for resentencing.

      AFFIRMED IN PART, VACATED IN PART, AND REMANDED.




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