UNITED STATES of America, Plaintiff-Appellee, v. Quartavious DAVIS, Defendant-Appellant.
No. 12-12928
United States Court of Appeals, Eleventh Circuit.
June 11, 2014.
754 F.3d 1205
Before MARTIN, DUBINA, and SENTELLE, Circuit Judges.
III. CONCLUSION
We REVERSE the district court‘s denial of Head‘s Rule 50(b) motion regarding MMS‘s misrepresentation claim, and REMAND for the necessary revision of the judgment. We AFFIRM the district court‘s decision regarding all other issues raised in this appeal.
Anne Margaret Hayes, Law Office of Anne M. Hayes, Cary, NC, Jacqueline Shapiro, Attorney at Law, Miami, FL, for Defendant-Appellant.
Benjamin Stevenson, ACLU of Florida, Pensacola, FL, Nathan Freed Wessler, American Civil Liberties Union, New York, NY, Maria Kayanan, ACLU Foundation of Florida, Inc., Miami, FL, for Amicus Curiae.
SENTELLE, Circuit Judge:
Appellant Quartavious Davis1 was convicted by a jury on several counts of
BACKGROUND
On February 18, 2011, a grand jury for the Southern District of Florida returned a seventeen-count indictment against Davis and five co-defendants. Davis was named as a defendant in sixteen of the seventeen counts. Generally, the indictment charged violations of the Anti-Racketeering Act,
As part of the pretrial proceedings, Davis moved to suppress electronic location evidence that the government had obtained “without a warrant,” claiming that the obtaining of that evidence violated his
During the trial, one member of each conspiracy testified for the United States. Willie Smith (“Smith“) testified as to the first conspiracy, encompassing six robberies at commercial establishments including a Little Caesar‘s restaurant, an Amerika Gas Station, a Walgreens drug store, an Advance Auto Parts store, a Universal Beauty Salon, and a Wendy‘s restaurant. Michael Martin (“Martin“) testified as to the second conspiracy, encompassing the robbery of a Mayor‘s Jewelry store. Smith and Martin testified that Davis was involved in each robbery, where they wore masks, carried guns, and took items such as cigarettes and cash.
Additionally, an eyewitness, Edwin Negron, testified regarding Davis‘s conduct at Universal Beauty Salon and the adjacent Tae Kwon Do studio. He testified that Davis pointed a gun at his head, pushed a 77 year-old woman and Negron‘s wife to the ground, and took several items from Negron and others. Another eyewitness, Antonio Brooks, testified that he confronted Davis and his accomplices outside the Wendy‘s restaurant after that robbery and tried to write down the license plate of their getaway car. Brooks testified that Davis fired his gun at him, and that he returned fire towards the car.
Beyond the testimony, the government produced additional evidence. Surveillance videos showed a man matching Davis‘s description participating in the robberies at Walgreens, Advance Auto Parts, Wendy‘s, and Mayor‘s Jewelry. Smith and Martin identified Davis on the videos. DNA shown to be Davis‘s was recovered from the getaway car used to flee the scene of the Universal Beauty Salon robbery and the Mayor‘s Jewelry store robbery.
The prosecution also offered records obtained from cell phone service providers evidencing that Davis and his co-defendants had placed and received cell phone calls in close proximity to the locations of each of the charged robbеries around the
The court submitted all counts to the jury. During jury arguments, the prosecutor made several questionable statements, including some apparently vouching for the credibility of the government‘s witnesses. Upon objections by the defense, the court instructed the jury to disregard the statements by the prosecution. The jury returned a verdict of guilty on all counts.
Subsequently, the district court sentenced Davis on all counts, and conducted a careful sentencing analysis on the record. Of particular note to the issues in this appeal, in the sentence on Count 3, which charged the use and carrying of a firearm during and in relation to a crime of violence, the court imposed a seven-year statutory mandatory enhаncement pursuant to
Davis raises several allegations of error on appeal. First, he argues that the district court‘s denial of his motion to suppress the cell site location information and the admission of that evidence violated his constitutional rights under the
I. Fourth Amendment Issue
Davis‘s
The evidence obtained under the order and presented against Davis in the district court consisted of so-called “cell site location information.” That location informa-
Davis objected to the admission of the location information in the district court and now argues to us that the obtaining of that evidence violated his constitutional rights under the
As we suggested above, the question whether cell site location information is protected by the
The Third Circuit in In re Application of U.S. for an Order Directing a Provider of Elec. Commc‘ns Serv. to Disclose Records to Gov‘t, 620 F.3d 304, 317-18 (3d Cir.2010), heard the government‘s appeal from an order of a magistrate judge declining to direct a service provider to furnish information by order under subsection (d) and requiring instеad that the government pursue a warrant upon probable cause under subsection (c)(A). Briefly put, that circuit did vacate the magistrate judge‘s denial, but opined that the magistrate judge in appropriate circumstances might “require a warrant showing probable cause....” Id. at 319.
The Fifth Circuit, in In re Application of U.S. for Historical Cell Site Data, 724 F.3d 600, 612 (5th Cir.2013), reviewed an application in a similar posture. In the Fifth Circuit case, the district court had denied orders for which the government
While Jones is distinguishable from the case before us, it concerned location information obtained by a technology sufficiently similar to that furnished in the cell site location information to make it clearly relevant to our analysis. The present case, like Jones, brings to the fоre the existence of two distinct views of the interests protected by the Fourth Amendment‘s prohibition of unreasonable searches and seizures. The older of the two theories is the view that the
The privacy theory began to emerge at least as early as Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928). In Olmstead, the government had obtained conversations of the defendants by warrantless wiretap. Because the wires that were tapped were outside the premises of the defendants, the majority of the court, relying on the trespass theory, held that the tapping did not constitute a search within the meaning of the
In Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322 (1942), the petitioners complained against the government‘s electronically overhearing conversations in petitioners’ offices by the warrantless placement of a listening device on an exterior wall. Because the Court, in what might be described as an esoteric discussion of the placement of the device, concluded that the interception of petitioners’ conversation was not aided by trespass, there was no
The minutiae involved in the application of the trespass theory to the world of electronic information stood out sharply in Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961). In Silverman, police officers testified to the contents of conversations upon which they eavesdropped. The Supreme Court noted the argument of the defendants that the rationale of Olmstead should be reexamined, but concluded that such a reexamina-
Finally, in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), the majority of the Supreme Court accepted and relied upon the privacy theory to hold interception of a conversation unconstitutional even in the absence of a physical trespass. In Katz—on facts somewhat reminiscent of Goldman—the Court considered evidence obtained by FBI agеnts through a device attached to the exterior of a telephone booth but not penetrating the wall. As the government argued that there was no
Therefore, it cannot be denied that the
The Jones case involved not cell site location data, but the somewhat similar location data generated by a Global-Positioning-System (GPS) tracking device attached to the automobile of a suspected drug dealer by law enforcement agents. Although the agents originally attached the device and gathered the information transmitted by it under the authority of a warrant, that warrant authorized installation in the District of Columbia for a period of ten days. The agents installed the device on the eleventh day outside the District of Columbia. The government then tracked the vehicle‘s movements for twenty-eight days. The prosecution offered the resulting record of the defendant‘s movements and whereabouts over that period of time in evidence against him in his trial for drug trafficking conspirаcy.
The trial court in Jones suppressed the location evidence generated by the device on Jones‘s vehicle while it was parked in his own premises, but admitted the data reflecting its movements on the streets and highways in the belief that Jones would have no reasonable expectation of privacy when the vehicle was on public streets. See United States v. Jones, 451 F.Supp.2d 71, 87-89 (D.D.C.2006). On conviction, Jones and a codefendant, Maynard, appealed. The Court of Appeals for the District of Columbia Circuit reviewed the
By way of example, the court noted that “[r]epeated visits to a church, a gym, a bar, or a bookie tell a story not told by a single visit....” Id. at 562. The court noted further that “the sequences of a person‘s movements can reveal still more: a single trip to a gynecologist‘s office tells little about a woman, but that trip followed a few weeks later by a visit to a baby supply store tells a different story.” Id.
The court recalled the “mosaic theory” often relied upon by the government “in cases involving national security information.” Id. As the Supreme Court has observed in that context, “what may seem trivial to the uninformed, may appear of great moment to one who has a broad view of the scene and may put the questioned item of information in its proper context.” CIA v. Sims, 471 U.S. 159, 178, 105 S.Ct. 1881, 85 L.Ed.2d 173 (1985) (internal quotation marks and citations omitted). The circuit reasоned that although each element of Jones‘s movements throughout the month might have been exposed to the public, the “aggregation of [those] movements over the course of a month,” was not so exposed, and his expectation of privacy was reasonable. Maynard, 615 F.3d at 563. The court reversed Jones‘s conviction. The United States sought and obtained certiorari. The Supreme Court affirmed. Like the Court of Appeals, the High Court concluded that the warrantless gathering of the GPS location information had violated Jones‘s
While the Jones case does instruct our analysis of the controversy before us, it does not conclude it. As discussed at length above,
As the United States rightly points out, in the controversy before us there was no trespass. Therefore, although Jones clearly removes all doubt as to whether electronically transmitted location information can be protected by the
In Jones, Justice Scalia‘s opinion for the Court speaks on behalf of the author and three other Justices, Chief Justice Roberts, and Justices Kennedy and Thomas. It is, however, a true majority opinion, as Justice Sotomayor, who wrote separately, “join[ed] the majority‘s opinion.” Jones, 132 S.Ct. at 957. However, she did so in a
Four other justices concurred in the result in an opinion authored by Justice Alito, which relied altogether on the privacy theory. Justice Alito wrote, “I would analyze the question presented in this case by asking whether respondent‘s reasonable expectations of privacy were violated by the long-term monitoring of the movements of the vehicle he drove.” Id. at 958 (Alito, J., concurring in the result). Justice Alito and the justices who joined him ultimately concurred in the result because they did conclude that “the lengthy monitoring that occurred in this case constituted a search under the
Even the opinion of the Court authored by Justice Scalia expressly did not reject the applicability of the privacy test. While chiding the concurrence for “mak[ing] Katz the exclusive test,” the opinion of the Court expressly noted that “[s]ituations involving merely the transmission of electronic signals without trespass would remain subject to [the] Katz [privacy] analysis.” Id. at 953. In light of the confluence of the three opinions in the Supreme Court‘s decision in Jones, we accept the proposition that the privacy theory is not only alive and well, but available to govern electroniс information of search and seizure in the absence of trespass.
Having determined that the privacy theory of
Jones, as we noted, involved the movements of the defendant‘s automobile on the public streets and highways. Indeed, the district court allowed the defendant‘s motion to suppress information obtained when the automobile was not in public places. The circuit opinion and the separate opinions in the Supreme Court concluded that a reasonable expectation of privacy had been established by the aggregation of the pоints of data, not by the obtaining of individual points. Such a mosaic theory is not necessary to establish the invasion of privacy in the case of cell site location data.
One‘s car, when it is not garaged in a private place, is visible to the public, and it is only the aggregation of many instances of the public seeing it that make it particu-
The United States further argues that cell site location information is less protected than GPS data because it is less precise. We are not sure why this should be significant. We do not doubt that there may be a difference in precisiоn, but that is not to say that the difference in precision has constitutional significance. While it is perhaps possible that information could be sufficiently vague as to escape the zone of reasonable expectation of privacy, that does not appear to be the case here. The prosecutor at trial stressed how the cell phone use of the defendant established that he was near each of six crime scenes. While committing a crime is certainly not within a legitimate expectation of privacy, if the cell site location data could place him near those scenes, it could place him near any other scene. There is a reasonable privacy interest in being near the home of a lover, or a dispensary of medication, or a place of worship, or a house of ill repute. Again, we do not see the factual distinction as taking Davis‘s location outside his expectation of privacy. That information obtained by an invasion of privacy may not be entirely precise does not change the calculus as to whether obtaining it was in fact an invasion of privacy.
Finally, the government argues that Davis did not have a reasonable expectation of privacy because he had theretofore surrendered that expectation by exposing his cell site location to his service provider when he placed the call. The government correctly notes that “the
The Third Circuit considered this argument in In re Electronic Communications Service to Disclose, supra. As that circuit noted, the Supreme Court in Smith reasoned that phone subscribers “assumed the risk that the company would reveal to police the numbers [they] dialed.” 442 U.S. at 744, 99 S.Ct. 2577. See also 620 F.3d at 304. The reasoning in Smith depended on the proposition that “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” 442 U.S. at 743-44, 99 S.Ct. 2577. The Third Circuit went on to observe that “a cell phone customer has not ‘voluntarily’ shared his location information with a cellular provider in any meaningful way.” That circuit further noted that “it is unlikely that cell phone customers are aware that their cell phone providers collect and store historical location information.” 620 F.3d at 317 (emphasis added). Therefore, as the Third Circuit concluded, “when a cell phone user makes a call, the only information that is voluntarily and knowingly conveyed to the phone company is the number that is dialed, and there is no indication to the user that making that call will also locate the caller.” Id. Even more persuasively, “when a cell phone user receives a call, he hasn‘t voluntarily exposed anything at all.” Id. at 317-18.
Supportive of this proposition is the argument made by the United States to the jury. The prosecutor stated to the jury “that obviously Willie Smith, like [Davis], probably had no idea that by bringing their cell phones with them to these robberies, they were allowing [their cell service provider] and now all of you to follow their movements on the days and at the times of the robberies....” Just so. Davis has not voluntarily disclosed his cell site location information to the provider in such a fashion as to lose his reasonable expectation of privacy.
In short, we hold that cell site location information is within the subscriber‘s reasonable expectation of privacy. The obtaining of that data without a warrant is a
II. The Leon Exception
The United States contends that even if we conclude, as we have, that the gathering of the cell site location data without a warrant violated the constitutionаl rights of the defendant, we should nonetheless hold that the district court did not commit reversible error in denying appellant‘s motion to exclude the fruits of that electronic search and seizure under the “good faith” exception to the exclusionary rule recognized in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). We agree.
In Leon, the Court observed that “[t]he purpose of the exclusionary rule is to deter unlawful police conduct, then evidence obtained from a search should be suppressed only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the
The only differences between Leon and the present case are semantic ones. The officers here acted in good faith reliance on an order rather than a warrant, but, as in Leon, there was a “judicial mandate” to the officers to conduct such search and seizure as was contemplated by the court order. See id. at 920 n. 21, 104 S.Ct. 3405. As in Leon, the officers “had a sworn duty to carry out” the provisions of the order. Id. Therefore, even if there was a defect in the issuance of the mandate, there is no foundation for the application of the exclusionary rule.
We further add that Leon speaks in terms of the “magistrate‘s” error. Here, the law enforcement officers, the prosecution, and the judicial officer issuing the order, all acted in scrupulous obedience to a federal statute, the
III. Prosecutorial Misconduct
Appellant argues that the trial prosecutor, in his summation to the jury, engaged in improper behaviors that irreparably tainted Davis‘s trial. While he refers to several parts of the argument, the two that typify his argument were the prosecutor‘s reference to a substance, perhaps blood, being “all over” a getaway car, when in fact there were only a few drops; and what appellant describes as “long strings of bolstering witnesses’ testimony.” We have reviewed the trial transcript of the closing argument and conclude that the prosecutor‘s statements warrant no relief on appeal.
As to the statements described by Davis as exaggeration of the evidence, we see no more than rhetorical flourish. The prosecution could, without violating Davis‘s rights, characterize the evidence as could the defense counsel in presenting Davis‘s case. The bolstering is admittedly troubling.
The problem of a prosecutor‘s vouching for government witnesses is indeed a very real one. In United States v. Young, 470 U.S. 1, 18-19, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985), the Supreme Court observed that prosecutorial vouching
can convey the impression that evidence not presented to the jury, but known to the prosecutor, supports the charges against the defendant and can thus jeopardize the defendant‘s right to be tried solely on the basis of the evidence presented to the jury; and the prosecutor‘s opinion carries with it the imprimatur of the Government and may induce the jury to trust the Government‘s judgment rather than its own view of the evidence.
The Supreme Court‘s analysis of the prosecutor‘s role draws a clean line. He may comment on the evidence before the jury, but he may not augment that evidence by implication that he or others on the prosecution team are aware of further evidence not presented in court. While we recоgnize that in the heat of the courtroom, an arguing lawyer may say things he would later regret, the record in this case discloses that the prosecutor did cross that line. Specifically, he stated, with respect to the government witness Martin, “he came clean and confessed [one hundred] percent and told the police precisely the same story that he told all of you, the story he has told me one hundred times since.”
Prosecutorial misconduct will result in reversal only in those instances in which the misbehavior is so pervasive as to “permeate the entire atmosphere of the trial.” United States v. McLain, 823 F.2d 1457, 1462 (11th Cir.1987). We proceed undеr a two-part test. First, the comments at issue must actually be improper, and second, any comments found to be improper must prejudicially affect the substantial rights of the defendant. United States v. Schmitz, 634 F.3d 1247, 1267 (11th Cir.2011).
We conclude that no such prejudicial effect is present. The improper remark here is a small item following a dense record of evidence against the defendant, and evidence which in fact included prior consistent statements by the witness Martin.
Further, and of great importance, the district court removed the comments from the jury‘s consideration and properly instructed the jurors on the nature of closing arguments. The court instructed that the prosecutor‘s statements were “not in evidence, and even if [they were], that doesn‘t make [them] true or not true.” We must presume that a jury follows its instructions. Richardson v. Marsh, 481 U.S. 200, 206, 211, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987). In short, the prosecutor‘s statements are not a basis for reversal.
IV. The Sentencing Enhancements
Davis raises two constitutional objections to the computation of his sentence. He contends that the enhancement for the second or subsequent offenses and for brandishing a weapon were imposed in violation of his
This sort of Sixth Amendment claim is governed by the Supreme Court decision in Alleyne v. United States, — U.S. —, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). In Alleyne, the Supreme Court overruled its prior opinion in Harris v. United States, 536 U.S. 545, 551-56, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), and held that the
The “brandishing” issue, however, does warrant relief. Although Davis did not raise the issue below, an аppellate court can review for errors not raised at trial under the “plain error” standard. Under that standard, we may correct the error that the defendant did not raise only if there is “(1) error, (2) that is plain, and (3) that affects substantial rights.” United States v. McKinley, 732 F.3d 1291, 1295 (11th Cir.2013). If these three elements are met, we may then in our discretion correct the error, only if “(4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. For example, the fourth prong of plain error review would not be met “where the evidence of a statutory element of an offense is overwhelming and essentially uncontroverted.” Id. at 1297.
A sentencing decision is in error when it violates a relevant Supreme Court ruling. See United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.2005). An error is plain if it is “clear from the plain meaning of a statute or constitutional provision, or from a holding of the Supreme Court or this Court.” United States v. Pantle, 637 F.3d 1172, 1174-75 (11th Cir.2011). An error affects substantial rights if it affected the outcome of the district court proceedings. Rodriguez, 398 F.3d at 1299. The defendant bears the burden of persuasion to demonstrate such prejudice. Id. Finally, we consider whether the error had such an effect on the proceedings as to motivate use of our discretion to restore the equality and reliability of judicial proceedings in the eyes of the public. United States v. Shelton, 400 F.3d 1325, 1332-33 (11th Cir.2005).
On Count 3, the jury found that Davis “possessed a firearm in furtherance of the robbery.” At the sentencing hearing, the district court heard from the probation officer, who reported that “Count 3, which is possession of a firearm in furtherance of a crime of violence ... calls for a minimum imprisonment sentence of seven years....” The district court imposed then “84 months [seven years] as to Count 3 to be served consecutively to the terms imposed as to [the other counts].” The text of
In reviewing the prejudicial effeсt of the deviation, we note that the district judge candidly stated that if he were not constrained by statutory maxima, he “would impose a sentence here that would not be a life sentence.” It therefore appears that the extra length on this count would not have been imposed in the absence of what we now view as a plain error. Additionally, we also find that this error “affected the fairness, integrity, or public reputation of the judicial proceedings.” McKinley, 732 F.3d at 1297. The evidence that Davis personally brandished the firearm he possessed during the robbery of the Little Caesar‘s restaurant is not “overwhelming and essentially uncontroverted.” Id. To the contrary, only one witness testified that a gun was pointed at her, and there is no evidence that Davis was the one who did it. Further, the jury had an opportunity to convict Davis of either (1) possessing a firearm in furtherance of the robbery or (2) using or carrying a firearm in furtherance of the robbery. Yet it only found that Davis possessed a firearm. We therefore will be constrained to vacate the extension of the sentence. In doing so, we observe on behalf of both the judge who entered the sentence and the counsel who did not raise the error that the trial in this case preceded the Supreme Court decision in Alleyne.
V. Eighth Amendment Claim
Davis argues that the 162-year sentence, which obviously amounts to a life sentence, constitutes cruel and unusual punishment. In support of this proposition, he stresses that he was eighteen and nineteen years old at the time of the commission of the offenses, and suffered from bipolar disorder and a severe learning disability, and had no prior convictions. While these are no doubt significant factors, we can grant no relief on this issue.
Allegations of cruel and unusual punishment are legal questions subject to our de novo review. United States v. Haile, 685 F.3d 1211, 1222 (11th Cir.2012), cert. denied, — U.S. —, 133 S.Ct. 1723, 185 L.Ed.2d 785 (2013).
Davis argues that the mandatory consecutive nature of his sentence violated the
As applied to noncapital offenses, the
Here, Davis‘s total sentence is unmistakably severe. However, a gross proportionality analysis necessarily compares the severity of a sentence to the crimes of con-
VI. Sufficiency of the Evidence on Count 17
Davis contends that the district court erred by denying his motion for judgment of acquittal on Count 17 because, in his view, the evidence failed to establish that he facilitated a codefendant‘s use of a firearm during the Mayor‘s Jewelry Store robbery. We disagree.
We review de novo the district court‘s denial of a motion for a judgment of acquittal on sufficiency of evidence grounds. United States v. Browne, 505 F.3d 1229, 1253 (11th Cir.2007). We consider the evidence in the light most favorable to the Government and draw all reasonable inferences and credibility choices in the Government‘s favor. United States v. Friske, 640 F.3d 1288, 1290-91 (11th Cir.2011).
Davis argues that there is insufficient evidence to support his сonviction on Count 17 of the superseding indictment, which charges aiding and abetting a codefendant‘s possession of a firearm during the jewelry store robbery. In his estimation, the evidence does not show that he had prior knowledge of any gun before the jewelry store robbery. In fact, he tells us, the evidence establishes that he was not involved in the planning of the robbery, precluding his prior knowledge of the firearm. At most, the jury intuited that Davis had prior knowledge of the gun, which is an insufficient basis on which to sustain his conviction.
The Government argues that a reasonable construction of the evidence demonstrates that Davis knew his codefendant would be carrying a gun during the jewelry store robbery and that Davis enjoyed the protection of the firearm during the commission of the robbery. According to the Government, its evidence constitutes a showing sufficient to support a conviction for aiding and abetting a codefendant‘s possession of a firearm.
Recently, the Supreme Court decided Rosemond v. United States, — U.S. —, 134 S.Ct. 1240, 188 L.Ed.2d 248 (2014), in which it clarified the standard regarding the precise question before us: What must the Government show when it seeks to establish that a defendant is guilty of aiding or abetting the offense of using or carrying a firearm during a crime of violence? In Rosemond, the Court held that the Government must prove that the defendant “actively participated in the underlying ... violent crime with advance knowledge that a confederate would use or carry a gun during the crime‘s commission.” Rosemond, 134 S.Ct. at 1243.
The Government, as part of its sufficiency argument, notes that Davis must have seen the gun during the robbery, and thus the knowledge element is met. We note that under Rosemond, such a scenario may constitute insufficient evidence if it means that Davis “at that late point ha[d] no realistic opportunity to quit the crime.” Rosemond, 134 S.Ct. at 1249. However, Davis does not argue his inability to retreat, and regardless, this point is beyond the scope of our analysis. We need only decide whether Davis had the requisite “advance knowledge” described in Rosemond.
VII. Accumulation of Trial Errors Claim
We need not linger long over Davis‘s final claim. Davis contends that we should grant relief where “a combination of trial errors and prosecutorial misconduct [denies] a defendant a fair trial, regardless of whether the individual errors require reversal on their own.” Appellant‘s Br. at 42 (citing United States v. Elkins, 885 F.2d 775 (11th Cir.1989)). This is clearly correct as an abstract proposition of law, but it does not apply to this сase.
Our precedent counsels that a combination of trial errors and prosecutorial misconduct can serve to render a trial unfair, despite no single error requiring reversal. Id. at 787. However, such a combination is rare because “a conviction should be reversed only if ‘a miscarriage of justice would otherwise result.‘” Id. (quoting United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985)). This is not one of those rare cases.
As we make clear in our discussion above, the limited misconduct by the prosecutor was readily cured by the instruction of the trial court. The only cognizable error by the trial court is the admission of the cell site location information, which was at best understandable, given the uncertainty of the law on the subject, and at worst harmless, given that the evidence was admissible against Davis, albeit on a different theory (the Leon exception) than that on which it was propounded.
CONCLUSION
For the reasons set forth above, we affirm the judgment of conviction and vacate only that portion of the sentence attributable to the enhancement for brandishing.