                                                NOT PRECEDENTIAL



                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT
                            _____________

                                No. 13-3715
                               _____________

                        UNITED STATES OF AMERICA

                                      v.

                               AXEL GOMEZ,
                                            Appellant
                               _____________


               On Appeal from the United States District Court
                   for the Eastern District of Pennsylvania
                     District Court No. 2-10-cr-00321-001
               District Judge: The Honorable Gene E. K. Pratter


              Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                July 7, 2014

         Before: SMITH, VANASKIE, and SHWARTZ, Circuit Judges

                            (Filed: August 8, 2014)

                           _____________________

                                 OPINION
                           _____________________


SMITH, Circuit Judge.
      Following a jury trial in the United States District Court for the Eastern

District of Pennsylvania, Axel Gomez was convicted of various crimes, including

21 U.S.C. § 841 (distribution of cocaine and heroin), 21 U.S.C. § 846 (conspiracy),

18 U.S.C. § 924(c) (possession of a firearm in furtherance of drug trafficking

offense), and 18 U.S.C. § 922(g) (possession of a firearm by a convicted felon).

On appeal, Gomez challenges these convictions on two grounds: (1) that police

violated his Fourth Amendment rights by using pen registers and trap and trace

devices without a warrant, and (2) that the evidence adduced at trial was

insufficient to sustain a conviction for conspiracy under 21 U.S.C. § 846.1 For the

reasons that follow, we will affirm the judgment of the District Court.

                                          I.

      The DEA began investigating Gomez for drug distribution in 2009. In May

2009, the DEA arranged the sale of 20 grams of heroin from Gomez to a

government informant. This informant provided the DEA with the number to

Gomez’s cellular telephone, and from July 9, 2009, to at least August 18, 2009, the




1
       Gomez raises two other issues, but acknowledges that they are foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998), and United States v.
Singletary, 268 F.3d 196 (3d Cir. 2001), and presents them only for purposes of
preservation. They are: (1) his Fifth/Sixth Amendment rights were violated when he was
exposed to greater punishment based on a putative prior conviction that was neither
charged in the indictment nor proved to the jury beyond a reasonable doubt; and (2) the
Commerce Clause does not authorize federal regulation of firearm possession based
solely on the gun’s one-time travel in interstate commerce.
                                          2
DEA used a pen register2 and a “trap and trace” device3 to monitor this phone’s

activity pursuant to court orders issued under 18 U.S.C. § 3123. These devices

allowed the DEA to record a large amount of call data, such as the telephone

numbers dialed by Gomez, the telephone numbers of persons who called Gomez,

and the time of day and duration of these communications. Importantly, all of this

information was disclosed to Gomez’s cell phone carrier, Sprint Corporation, when

the calls were placed. This call data revealed that Gomez regularly communicated

with suspected drug traffickers and individuals using prepaid phones, which

suggested that Gomez was involved in the distribution of illegal drugs. During this

period, the DEA also successfully arranged and recorded multiple drug purchases

from Gomez to confidential informants.

      Using the call data and the evidence obtained through the undercover

purchases, the DEA obtained an order for a wiretap and began intercepting and

recording Gomez’s cell phone conversations on August 24, 2009. On September

12, 2009, Gomez abruptly stopped using the tapped phone.                 A confidential

informant provided the DEA with Gomez’s new cell phone number and the DEA




2
       A pen register records outgoing dialing information from the subject’s phone (i.e.,
what numbers the subject dialed, when he dialed them, whether the call was connected,
and the duration of the call). See 18 U.S.C. § 3127(3) (defining pen register).
3
       A “trap and trace” device records incoming dialing information to the subject’s
phone (i.e., when the caller dialed the subject’s number, whether the call was connected,
and the duration of the call). See 18 U.S.C. § 3127(4) (defining trap and trace device).
                                            3
obtained authorization for a wiretap for the new phone. Both wiretaps yielded

additional evidence that Gomez was engaged in the distribution of illegal drugs.

      Using all of the foregoing evidence, the DEA obtained and executed a search

warrant for Gomez’s apartment, where they recovered almost $6,000 in cash, drug

packaging materials and a digital scale, and a loaded .40 caliber handgun with an

obliterated serial number.     Thereafter, Gomez was indicted on charges of

distribution of controlled substances, conspiracy, and possession of a firearm in

connection with drug trafficking.

      Prior to trial, Gomez moved to suppress the introduction of much of the

foregoing evidence, arguing that the DEA violated his Fourth Amendment rights

by engaging in extensive call pattern surveillance without a warrant. The District

Court denied this motion, concluding that Gomez’s argument was squarely

foreclosed by Smith v. Maryland, 442 U.S. 735 (1979).

      At trial, Government cooperators Raphael Pagan and Ramon Sanchez

testified that they sold large quantities of heroin to Gomez on a regular basis.

Importantly, they testified that they always sold Gomez heroin on credit and were

not paid until after he distributed the drugs to his customers. They also testified

that Gomez occasionally sold them cocaine, and that they had sometimes helped

Gomez cook crack cocaine.

      The jury returned a guilty verdict on all counts and the District Court


                                         4
sentenced Gomez to a term of 25 years’ imprisonment.                This timely appeal

followed.

                                           II.4

      Gomez first argues that the DEA’s prolonged warrantless use of a pen

register and trap and trace device violated his privacy rights under the Fourth

Amendment. We agree with the District Court that this argument is foreclosed by

Smith. Gomez provided a third party—in this case, Sprint—with all the data that

the DEA obtained through the use of the pen register and trap and trace device. In

so doing, Gomez abandoned his privacy interest in this data because he “assumed

the risk that the information would be divulged to police.” Smith, 442 U.S. at 745.

Although Justice Sotomayor has urged the Court to reconsider Smith’s holding that

“an individual has no reasonable expectation of privacy in information voluntarily

disclosed to third parties,” United States v. Jones, 132 S. Ct. 945, 957 (2012)

(Sotomayor, J., concurring), we remain bound by Smith until a majority of the

Court endorses this view.5

4
        The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
under 28 U.S.C. § 1291. We exercise plenary review over a District Court’s legal
conclusions with respect to a motion to suppress. United States v. Perez, 280 F.3d 318,
336 (3d Cir. 2002). When reviewing a challenge to the sufficiency of the evidence, “we
must view the evidence in the light most favorable to the government, and will sustain the
verdict if any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” United States v. Dent, 149 F.3d 180, 187 (3d Cir. 1998)
(internal quotation marks and citations omitted).
5
        In the proceedings below, Gomez conceded that his position was “contrary to”
Smith, but cited Justice Sotomayor’s concurrence in Jones for the proposition that “Smith
is antiquated and must be reconsidered.” J.A. 60. Gomez presents a different argument
                                            5
       Gomez next argues that the evidence presented at trial did not support his

conspiracy conviction. Specifically, he argues that the evidence demonstrated, at

most, a “wholesale buyer-seller relationship” between himself and the

Government’s cooperating witnesses—not a conspiracy. Gomez concedes that he

did not raise this issue in the District Court and, accordingly, that plain error is the

proper standard of review in this appeal. See United States v. Mornan, 413 F.3d

372, 381 (3d Cir. 2005).

       Viewing the evidence in the light most favorable to the Government, we

conclude that a reasonable jury could have found the essential elements of a

conspiracy beyond a reasonable doubt. Pagan and Sanchez testified that they

always provided Gomez with heroin on credit. In the context of large-scale drug

distribution, this fact alone provided the jury with sufficient evidence of a

on appeal. Instead of urging us to overrule Smith’s “third party doctrine,” Gomez
contends that this doctrine has already been “cabined” by five Justices of the Supreme
Court—a number he reaches by combining Justice Sotomayor’s and Justice Alito’s
concurrences in Jones. Appellant’s Br. 27, 31. As Gomez did not raise this argument
before the District Court, it is waived. Holk v. Snapple Beverage Corp., 575 F.3d 329,
336 (3d Cir. 2009).
       In any event, we reject Gomez’s contention that the concurrences in Jones
“cabined” Smith. Justice Alito’s concurrence did not explicitly seek to limit Smith, and
indeed relied heavily on the fact that drivers of automobiles do not expect third parties to
possess detailed, long-term data regarding their location. Jones, 132 S. Ct. at 964 (Alito,
J., concurring). By contrast, cell phone users do expect service providers to possess
detailed, long-term data regarding the numbers they dial because this information is
necessarily conveyed in the course of connecting a call. Smith, 442 U.S. at 743. By
disclosing this data, cell phone users, unlike drivers of automobiles, “assume[] the risk”
that a third party will convey it to law enforcement. Id. at 744. Therefore, we are not
persuaded that the two concurrences in Jones have limited Smith to short-term call
monitoring.
                                             6
conspiracy.      United States v. Iglesias, 535 F.3d 150, 156 (3d Cir. 2008).

Additionally, these witnesses testified that Gomez sold them cocaine, and that they

helped Gomez cook crack cocaine. Accordingly, we see no reason to disturb

Gomez’s conspiracy conviction.

         In light of the foregoing analysis, we will affirm the judgment of the District

Court.




                                            7
