United States v. Alejandro Chavez-Lopez ( 2019 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-4183
UNITED STATES OF AMERICA,
Plaintiff − Appellee,
v.
ALEJANDRO CHAVEZ-LOPEZ,
Defendant – Appellant.
Appeal from the United States District Court for the Western District of North Carolina,
at Charlotte. Robert J. Conrad, Jr., District Judge. (3:17-cr-00073-RJC-DCK-2)
Argued: January 30, 2019 Decided: April 11, 2019
Amended: April 11, 2019
Before NIEMEYER, AGEE, and DIAZ, Circuit Judges.
Affirmed by unpublished opinion. Judge Diaz wrote the opinion, in which Judge
Niemeyer and Judge Agee joined.
ARGUED: Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Asheville, North Carolina, for Appellant. Amy Elizabeth Ray,
OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for
Appellee. ON BRIEF: Caryn A. Strickland, Research & Writing Attorney, FEDERAL
DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina,
for Appellant. R. Andrew Murray, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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DIAZ, Circuit Judge:
Defendant Alejandro Chavez-Lopez claims that the district court erred in
admitting certain evidence and seeks a new trial. In the alternative, he seeks resentencing
based on an allegedly defective sentencing enhancement. Finding no reversible error, we
affirm the district court’s judgment.
I.
A.
Federal agents suspected that Chavez-Lopez was part of a drug-trafficking ring.
The agents organized a sting operation and sent a confidential informant to meet Jorge
Aguilera, a participant in the ring. The informant asked Aguilera to sell him cocaine.
Aguilera agreed to contact Chavez-Lopez’s nephew about a possible cocaine sale; later,
he met Chavez-Lopez and his nephew at a carwash. The informant contacted them and
then came to the carwash, where he discussed the details of a cocaine sale with Chavez-
Lopez.
A few days later, Aguilera and the informant texted about the cocaine sale, and the
informant agreed to buy two kilos of cocaine. Aguilera forwarded these messages to
Chavez-Lopez. Aguilera and Chavez-Lopez then met at a Burger King and arranged a
meeting with the informant in a Walmart parking lot. The pair drove to the Walmart and
met another conspirator, Robert Fonceca, who got in the car carrying a PlayStation 4 box
that held two kilos of cocaine. Chavez-Lopez got out and stood on an island in the
parking lot where he could watch the car.
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The informant arrived, accompanied by an undercover officer. They spoke with
Aguilera and Fonceca, who showed them the cocaine in the PlayStation box. While they
talked, Chavez-Lopez sent Aguilera a text message giving Aguilera the price he should
sell the cocaine for. Aguilera and Fonceca agreed to follow the undercover officer to his
house to get the money for the sale. State troopers, who were informed about the sting,
followed Aguilera and Fonceca before conducting a traffic stop. The troopers brought in
a canine unit, which detected drugs. The troopers then searched the car, found the
cocaine, and arrested Aguilera and Fonceca.
Chavez-Lopez, meanwhile, remained behind in the parking lot. After Aguilera
didn’t respond to his texts, Chavez-Lopez went into a bathroom in the Walmart and sat
down in a stall. Several officers entered the bathroom and, after waiting several minutes,
entered the stall to arrest Chavez-Lopez, who tried to shove his cellphone in the toilet.
During the conspirators’ arrests, the agents seized that phone and four others.
B.
A grand jury indicted Chavez-Lopez, Aguilera, and Fonceca for conspiracy to
possess cocaine with intent to distribute. Aguilera and Fonceca pleaded guilty, but
Chavez-Lopez stood trial. At his trial, the government presented two key pieces of
evidence. First, Aguilera testified about Chavez-Lopez’s role in the conspiracy. Second,
the government introduced exhibits detailing the conspirators’ text messages and call
logs, though it did not introduce the underlying data extracted from the seized cellphones.
To lay a foundation for the texts and call logs, the government called Charles
Yerry, an intern at the Department of Homeland Security, as a witness. Yerry regularly
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used software called Cellebrite to extract data from cellphones. At an agent’s request,
Yerry used the software on the phones seized in this investigation. He photographed the
phones and then “hook[ed] them up to the machines and beg[an] the extraction process,”
saving the data onto an external drive. J.A. 221. Yerry said the process only took a few
hours and posed no unusual issues. He did not review the copied data.
The government never sought to qualify Yerry as an expert witness. When he
began testifying, the defense objected that Yerry was “not qualified to testify as an
expert.” J.A. 220. After Yerry testified, the defense renewed its objection, arguing that
he had “testified to technical and specialized knowledge.” J.A. 226. The district court
overruled both objections. The defense, however, did not object for lack of foundation
when the government moved to introduce the texts and call logs that Yerry extracted
using the Cellebrite software.
The jury convicted Chavez-Lopez of the conspiracy charge. The U.S. Probation
Office recommended applying the Sentencing Guidelines’ career offender enhancement.
The defense did not object to that enhancement, and the district court sentenced Chavez-
Lopez to about 22 years in prison. Chavez-Lopez now appeals both his conviction and
his sentence.
II.
Chavez-Lopez makes two closely related arguments in support of his request for a
new trial. First, he contends that the district court should not have allowed Yerry to
testify without qualifying him as an expert. Chavez-Lopez preserved this argument in the
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district court. Second, he contends that the district court should not have admitted the
text messages and call logs without expert testimony describing the data extraction.
Chavez-Lopez did not preserve this argument, so we can review it only for plain error.
For both arguments, we hold that the district court committed no reversible error.
A.
Chavez-Lopez first contends that Yerry improperly gave expert opinion testimony.
In Chavez-Lopez’s view, Yerry’s testimony about the extraction of the cellphone data
necessarily involved an opinion about the accuracy of Cellebrite, which he says only an
expert could offer. The district court twice overruled an objection to this effect. We
review the district court’s decision admitting this testimony for abuse of discretion.
United States v. Perkins, 470 F.3d 150, 155 (4th Cir. 2006).
All witnesses may testify to facts within their personal knowledge. But for
opinion testimony, the Federal Rules distinguish between reasoning familiar in everyday
life and reasoning that requires expertise. See United States v. White, 492 F.3d 380, 401
(6th Cir. 2007). Experts may thus offer opinions based on “scientific, technical, or other
specialized knowledge.” Fed. R. Evid. 702. Lay witnesses, in contrast, may only offer
opinions that are “rationally based on [their] perception,” helpful to the jury, and not
based on specialized knowledge. Fed. R. Evid. 701. So, a lay witness may testify that a
substance looks like blood but not that certain bruises indicate head trauma. See Perkins,
470 F.3d at 155.
Under this standard, Yerry did not give expert testimony. First, Yerry did not
offer an opinion. His brief testimony concerned the actions he took to extract the data—
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hooking the phones up to a computer, following a few prompts, and saving data onto an
external drive. Yerry’s role as a witness is, therefore, best characterized as testifying
about facts in his personal knowledge.
Second, to the extent Yerry offered an opinion, it was lay testimony. Chavez-
Lopez contends that Yerry implicitly vouched for Cellebrite’s accuracy in extracting data.
But Yerry offered no assurances about how well Cellebrite performed. At most, he
offered the opinion that Cellebrite copies data from a cellphone, which he derived from
his personal experience using the software. That testimony requires no more specialized
knowledge than other opinions we have considered lay testimony, such as police officers’
testimony that a substance they observed was methamphetamine, that a shorthand
statement made to them carried a certain meaning, or that an observed use of force was
objectively reasonable. United States v. Hoston, 728 F. App’x 223, 224 (4th Cir. 2018);
United States v. Min, 704 F.3d 314, 324–25 (4th Cir. 2013); Perkins, 470 F.3d at 156.
Yerry’s testimony didn’t require a technical understanding of Cellebrite, and he made no
claims about the program’s effectiveness or reliability. He only testified about copying
data from one drive to another, which is “the product of reasoning processes familiar to
the average person in everyday life.” United States v. Baraloto, 535 F. App’x 263, 271
(4th Cir. 2013) (quoting United States v. Yanez Sosa, 513 F.3d 194, 200 (5th Cir. 2008));
see also In re D.H., No. A140779, 2015 WL 514336, at *6 (Cal. Ct. App. Feb. 6, 2015)
(holding that an officer gave only lay testimony about the extraction of data using
Cellebrite because “[t]he idea that images may be downloaded from a cell phone is
familiar to the general population”).
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For these same reasons, the Second Circuit has held that a police officer gave lay
testimony when he discussed the extraction of data using Cellebrite. See United States v.
Marsh, 568 F. App’x 15, 16–17 (2d Cir. 2014) (holding that an officer gave lay testimony
because he “did not purport to render an opinion based on the application of specialized
knowledge to a particular set of facts” when discussing the extraction of cellphone data
through Cellebrite). Other courts have come to the same conclusion. See United States v.
McLeod, No. 16-50013, 2019 WL 468798, at *1–2 (9th Cir. Feb. 6, 2019); United States
v. Seugasala, 702 F. App’x 572, 575 (9th Cir. 2017); D.H., 2015 WL 514336, at *6. But
see McLeod, 2019 WL 468798, at *4 (Molloy, J., dissenting in part and concurring in
part) (contending that a detective who testified about data extraction using Cellebrite
gave expert testimony without qualification).
Chavez-Lopez relies on two cases that are inapposite because both concern
testimony that required much more technical expertise. In an unpublished decision, this
court affirmed the district court’s decision to exclude the testimony of a witness who
would have testified (without qualification as an expert) to her forensic analysis of data
from the defendant’s computer and to her conclusion that a third party might have had
access to the computer. United States v. Yu, 411 F. App’x 559, 566 (4th Cir. 2010). And
in United States v. Ganier, the Sixth Circuit held that a witness would give expert
testimony if he discussed how to interpret data extracted by forensic software and how to
use it to recreate a user’s search history. 468 F.3d 920, 926 (6th Cir. 2006). In both of
those cases, the relevant witness (unlike Yerry) would have testified about their
interpretation of extracted data. Ganier, furthermore, made the useful analogy that expert
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testimony is necessary to describe specialized medical tests but not to describe reading a
thermometer. Id. Yerry’s testimony that he copied information from a phone to a hard
drive is, in our view, closer to the latter. Therefore, the district court did not err in
admitting his testimony as lay testimony.
B.
Chavez-Lopez also contends that the district court erred by admitting certain text
messages and call logs without expert testimony about the data extraction process. But,
as the government points out, Chavez-Lopez never challenged the admission of this
evidence before the district court. The closest the defense came to objecting was right
after Yerry left the stand when defense counsel said, “I would like to . . . renew my
objection that [Yerry] is an expert and the government has not properly laid the
foundation which I believe they’re going to try to introduce some text messages.” J.A.
226. But the district court understood and addressed the objection only in terms of
whether Yerry gave expert testimony, making no mention of whether data from the
phones was admissible. When the government later moved to introduce the texts and call
logs, the defense didn’t object on the basis that expert testimony was required. 1 Because
the defense never asked the court to exclude the texts and call logs, we review this issue
for plain error. Fed. R. Crim. P. 51(b), 52(b).
1
The district court’s ruling that Yerry offered lay testimony didn’t make such an
objection futile. In fact, establishing that Yerry was offering lay testimony was a
necessary predicate for objecting that the texts and call logs couldn’t be admitted without
expert testimony.
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To prevail, Chavez-Lopez must show “that an error occurred, that the error was
plain, and that the error affected his substantial rights.” United States v. Ellis, 326 F.3d
593, 596 (4th Cir. 2003). The term “plain” means clear or obvious at the time of
appellate review. See United States v. Carthorne, 726 F.3d 503, 516 (4th Cir. 2013). No
Fourth Circuit or Supreme Court precedent dictates that expert testimony is necessary to
authenticate information simply copied from a cellphone to a hard drive. In fact, our
cases suggest that expert testimony may be unnecessary for standard copying techniques.
See United States v. Spence, 566 F. App’x 240, 244 (4th Cir. 2014) (holding that the
government properly authenticated audio recordings copied from tapes to CDs, without
offering expert testimony); United States v. Wilson, 115 F.3d 1185, 1188–89 (4th Cir.
1997) (holding that the government properly authenticated a “composite tape” made from
original tapes, without offering expert testimony).
Other courts have admitted data copied by Cellebrite without expert testimony.
See Seugasala, 702 F. App’x at 575; D.H., 2015 WL 514336, at *5–6. We have not held
to the contrary. The unpublished case Chavez-Lopez relies on, United States v. Yu, held
only that a lay witness could not testify to her forensic analysis of a hard drive. 411 F.
App’x at 566. Yu didn’t concern whether expert testimony is necessary to introduce data
copied from a phone. Thus, even if there was error in admitting the texts and call logs, it
was not plain.
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III.
Chavez-Lopez also challenges his sentence, contending that he was improperly
designated a career offender under the Sentencing Guidelines. A defendant is a career
offender (and therefore subject to an enhanced sentencing range) only if the instant
offense and two prior felony convictions are crimes of violence or controlled substance
offenses. U.S.S.G. § 4B1.1(a). There is no dispute that Chavez-Lopez has two predicate
felonies. But Chavez-Lopez contends that the instant offense—a drug conspiracy under
21 U.S.C. § 846—isn’t a controlled substance offense and thus the career offender
enhancement cannot apply.
Ordinarily, we review whether an offense is a controlled substance offense de
novo. United States v. Dozier, 848 F.3d 180, 182–83 (4th Cir. 2017). But as Chavez-
Lopez concedes, plain error review is appropriate here because he didn’t object to the
career offender enhancement in the district court. Carthorne, 726 F.3d at 509. 2
Chavez-Lopez rests his challenge to his sentence on United States v. McCollum,
which we decided after his sentencing. 885 F.3d 300 (4th Cir. 2018). That case extended
Dozier, a circuit precedent which held that an attempt offense can’t be a career offender
predicate if it is broader than the generic definition of attempt. 848 F.3d at 186. In
McCollum, we held that the generic definition of conspiracy requires an overt act and that
2
Although Chavez-Lopez claims that circuit law changed after his sentencing, an
intervening change in the law has no effect on the standard of review. See, e.g., United
States v. David, 83 F.3d 638, 645 (4th Cir. 1996) (holding that plain error is the proper
standard of review when a criminal defendant does not make an objection that would
have been futile in light of then-established precedent).
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the federal crime of conspiracy to commit murder in aid of racketeering is broader than
generic conspiracy because it doesn’t require an overt act. 885 F.3d at 307–09. In an
unpublished opinion, we applied McCollum to hold that a conspiracy under 21 U.S.C.
§ 846—the crime Chavez-Lopez was convicted of—is not a controlled substance offense
because it too doesn’t require an overt act. United States v. Whitley, 737 F. App’x 147,
148–49 (4th Cir. 2018).
If that were the only relevant case law, the district court might well have
committed a plain error. But it isn’t. Long before McCollum, this court stated that a
§ 846 conspiracy would “clearly qualify as a career offender offense.” United States v.
Kennedy, 32 F.3d 876, 888 (4th Cir. 1994). The defendant in Kennedy contested that
issue on appeal, although his argument appears to have been that the Sentencing
Commission exceeded its statutory authority by enumerating drug conspiracies as
controlled substance offenses. Id. at 888–90. We rejected Kennedy’s argument and
emphasized that “[a]s a matter of simple logic, a conviction of conspiracy to distribute
controlled substances would seem to qualify as a federal narcotics offense.” Id. at 889–
90. Several subsequent decisions that the government cites—two of them published—
also concluded that § 846 conspiracies are controlled substance offenses, albeit with
minimal reasoning. See United States v. Brandon, 363 F.3d 341, 345 (4th Cir. 2004);
United States v. Walton, 56 F.3d 551, 555 (4th Cir. 1995); United States v. Meadows, No.
04-4396, 2006 WL 521706, at *3 (4th Cir. Mar. 3, 2006); United States v. Mullins, No.
97-4257, 1998 WL 614191, at *1 (4th Cir. Sept. 12, 1998); United States v. Massie, No.
95-5564, 1997 WL 107743, at *2 (4th Cir. Mar. 12, 1997).
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Although McCollum and Whitley are on point, Kennedy and subsequent cases cast
enough doubt on Chavez-Lopez’s argument that any error isn’t clear or obvious enough
to be plain. This court has repeatedly concluded that § 846 conspiracies are controlled
substance offenses. It’s not clear that those cases confronted the exact issue in this
appeal. But neither McCollum nor Whitley distinguished Kennedy or the other cases the
government cites, leaving open the question of which precedent controls. So, if the
district court erred, any error is not plain. Chavez-Lopez is, therefore, not entitled to
resentencing.
AFFIRMED
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