United States v. Thompson

FILED
United States Court of Appeals
Tenth Circuit

August 8, 2017
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v. No. 15-3313
ANTHONY CARLYLE THOMPSON,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. NO. 5:13-CR-40060-DDC-10)

Kari S. Schmidt (Tyler J. Emerson with her on the briefs), Conlee Schmidt &
Emerson, LLP, Wichita, Kansas, for Appellant.

James A. Brown, Assistant United States Attorney (Thomas E. Beall, United
States Attorney, with him on the brief), Office of the United States Attorney,
Topeka, Kansas, for Appellee.

Before TYMKOVICH, Chief Judge, MATHESON and MORITZ, Circuit
Judges.

TYMKOVICH, Chief Judge.
 I. Introduction

This appeal arose from a law enforcement investigation into a drug-

trafficking operation in the Geary County, Kansas area. Agents gathered

evidence by making controlled buys of crack cocaine through a confidential

informant; monitoring telephones used by certain of the co-conspirators,

including Anthony Carlyle Thompson; and conducting searches of several

residences, including Thompson’s. Thompson was arrested and charged with one

count of conspiracy to distribute more than 280 grams of cocaine base, in

violation of 21 U.S.C. §§ 846 and 841(a), and multiple counts of distribution of

cocaine base, in violation of 21 U.S.C. § 841(a)(1).

Before trial, Thompson moved to dismiss the indictment for Speedy Trial

Act violations. The district court overruled the motion, finding the court had

properly granted an ends-of-justice continuance that tolled the speedy-trial clock.

Also before trial, the district court admitted cell-service location information

(CSLI) the government obtained without a warrant as part of the process for

determining whether certain intercepted phone calls were admissible at trial. In

addition, the court denied Thompson’s motion to suppress evidence obtained from

a search of his residence, finding the search warrant was supported by probable

cause.

Thompson was tried along with several co-defendants, including Johnny

Lee Ivory, Martye Madkins, and Albert Dewayne Banks, who are appellants in

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related appeals. Thompson and his co-defendants were convicted on all counts.

Using an extrapolation method of calculation, the presentence investigation report

(PSR) attributed 8.477 kilograms of cocaine base to Thompson. The PSR then

imposed a four-level leadership sentencing enhancement, which yielded a total

offense level of 40, a criminal history category of IV, and a corresponding

guidelines range of 360 months to life in prison. Thompson objected to both the

drug-quantity calculation and the imposition of the leadership enhancement. At

sentencing, the court rejected Thompson’s objections, finding he was responsible

for 8.477 kilograms of cocaine base and applying the four-level leadership

enhancement. The court then sentenced Thompson to 360 months’ imprisonment.

Thompson now appeals his convictions and sentence, incorporating by

reference some of the arguments made by his co-defendants Madkins, Banks, and

Ivory in their related appeals. 1 In particular, Thompson contends the district court

erred in (1) denying his motion to dismiss for Speedy Trial Act violations; (2)

admitting CSLI obtained without a warrant; (3) denying his motion to suppress

evidence obtained from the search of his residence; and (4) delivering a

constitutionally deficient reasonable doubt instruction to the jury. Thompson also

appeals his sentence, arguing the district court erred in (1) relying on an

1
We consolidated these four appeals for all procedural purposes, including
briefing and oral argument. The government thus submitted one consolidated
response brief, and we heard oral argument in Thompson’s appeal along with
consolidated cases 15-3299 (Madkins) and 15-3324 (Banks). Consolidated case
15-3238 (Ivory) was submitted on the briefs.

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extrapolation method to calculate the drug quantity attributable to him as relevant

conduct; and (2) imposing the four-level leader-organizer enhancement, because

the evidence did not establish he served as a leader or organizer in the conspiracy.

For the reasons below, we affirm the district court in full, finding no error

in the court’s various rulings or in the sentence it imposed.

II. Analysis

We address Thompson’s challenges to his convictions and sentence in turn.

A. Speedy Trial Action Violations

Thompson first argues the district court violated his right to a speedy trial.

Pursuant to Federal Rule of Appellate Procedure 28(j), Thompson joins in and

adopts by reference the Speedy Trial Act arguments made by his co-defendant

Madkins.

In United States v. Madkins, No. 15-3299 (10th Cir. 2017), we explain the

relevant factual background, which is materially indistinguishable for purposes of

Thompson’s appeal. Pertinently, Thompson filed a motion to dismiss for Speedy

Trial Act violations. It is the district court’s denial of that motion that Thompson

now appeals.

In Madkins, we hold that the district court complied with the requirements

of the Speedy Trial Act in granting an ends-of-justice continuance, because the

record contains sufficient ends-of-justice findings. For the same reasons, we

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conclude the district court did not violate Thompson’s right to a speedy trial. We

therefore affirm Thompson’s convictions.

B. Admission of CSLI

Thompson next argues the district court erred in granting the government’s

application for historical cell-service location information (CSLI) and in

admitting that CSLI at a pretrial evidentiary hearing. The Stored

Communications Act (SCA), 18 U.S.C. § 2703(d), allows the government to

obtain a court order for disclosure of CSLI if it makes a showing of reasonable

suspicion. Thompson contends § 2703(d) is unconstitutional, because cell-phone

users have a reasonable expectation of privacy in their historical CSLI. And

because collecting CSLI constitutes a search, Thompson argues, the Fourth

Amendment requires the government to procure a warrant before obtaining a cell-

phone user’s historical CSLI.

We first explain the relevant background facts and then evaluate

Thompson’s constitutional arguments. Before trial, the parties engaged in

extensive litigation over the admissibility of recorded telephone calls the

government had intercepted pursuant to wiretap orders entered by Judge David R.

Platt, a state court judge sitting in the Eighth Judicial District of Kansas. Judge

Platt had issued wiretap orders for target phones used by Thompson, Banks, and

Ivory. Based in part on information derived from intercepts conducted pursuant

to the wiretap orders, law enforcement applied for search warrants of various

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locations and residences, including Thompson’s residence. When law

enforcement carried out the search of Thompson’s residence, officers seized cell

phones, cash, miscellaneous documents, drug paraphernalia, and credit cards.

Thompson filed a motion to suppress the intercepted calls, arguing law

enforcement had intercepted his communications outside the territorial

jurisdiction of the Eighth Judicial District. Co-defendant Ivory joined the motion.

Following a hearing, the federal district court ruled that Kansas law required

suppression of evidence about any calls made from a phone that was physically

located outside the boundaries of the Eighth Judicial District, since Judge Platt’s

jurisdiction only extended that far. The court therefore concluded the government

could introduce evidence about the wiretapped calls only if it could show that the

tapped phones were physically located within the Eighth Judicial District at the

time the calls were intercepted. The court postponed its rulings on Thompson’s

motion to suppress pending the government’s coming forth with evidence

showing the physical locations of the phones.

The government filed an application for orders pursuant to § 2703(d) of the

SCA, asking the court to require the electronic service providers for the target

phones—those used by Thompson, Banks, and Ivory—to disclose historical CSLI

relating to those phones. Section 2703(d) does not require the government to

show probable cause to obtain a court order; rather, the government must simply

show there are reasonable grounds to believe the material is relevant to an

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ongoing criminal investigation. Thompson filed a response in opposition to the

government’s application, arguing § 2703(d) is unconstitutional, because a cell-

phone user’s location is constitutionally protected by the Fourth Amendment.

Banks and Ivory joined the motion.

The district court granted the government’s application. The court

concluded that a cell-phone user has no reasonable expectation of privacy in his

CSLI, because CSLI records are business records that fall within the Fourth

Amendment’s third-party doctrine. Alternatively, the court ruled that even if the

Fourth Amendment did apply to CSLI, the government had shown probable cause

to support the issuance of the search warrants.

After obtaining the CSLI, the government sought to establish the location

of the intercepted phone calls by showing that a call had “pinged” certain cell

towers in and around the Junction City area within the Eighth Judicial District.

At a pretrial evidentiary hearing, the government presented the CSLI and

testimony from two experts who agreed that if the CSLI showed a phone

connected to one of the Junction City towers, then it was highly likely the phone

was physically located in the Eighth Judicial District. The district court found

that this evidence—along with other circumstances, including the fact that many

of the defendants’ residences and meeting places were located in and around

Junction City—established by a preponderance of the evidence that a phone was

physically located in the Eighth Judicial District if it had pinged one of the

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Junction City towers. Accordingly, the court ruled that if a call had pinged one of

those towers, it was admissible. Calls that had not pinged the towers, however,

were suppressed.

After the court’s ruling, Thompson, Banks, and Ivory filed a second round

of suppression motions, seeking to suppress evidence they claimed was obtained

derivatively of the suppressed calls and arguing, among other things, that

insufficient probable cause remained to support the search warrants once the

suppressed calls were excised from the affidavits supporting the warrants. The

district court denied the motions. The court found that, even excluding the

suppressed calls, the affidavits established probable cause to support issuing the

warrants. At trial, the government introduced calls that had pinged on three

towers in or immediately surrounding Junction City, along with some of the

evidence found during the searches of Banks’s and Ivory’s residences. The

government did not present any evidence found during the search of Thompson’s

residence. Thompson now appeals the district court’s rulings.

* * *

The SCA provides two different routes for the government to obtain

historical CSLI. The government may (1) “obtain[] a warrant using the

procedures described in the Federal Rules of Criminal Procedure”; or (2)

“obtain[] a court order for such disclosure under subsection (d).” 18 U.S.C.

§ 2703(c)(1). Subsection 2703(d) provides that such a court order “shall issue

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only if the governmental entity offers specific and articulable facts showing that

there are reasonable grounds to believe that the contents of a wire or electronic

communication, or the records or other information sought, are relevant and

material to an ongoing criminal investigation.” 18 U.S.C. § 2703(d).

We review de novo Thompson’s challenge to the constitutionality of

§ 2703(d). See United States v. Yelloweagle, 643 F.3d 1275, 1279 (10th Cir.

2011). In doing so, our analysis is guided by the Supreme Court’s business

records cases and the opinions of the four other circuit courts of appeals that have

considered this precise question. Those circuits held, as we do today, that cell-

phone users lack a reasonable expectation of privacy in their historical CSLI,

because they voluntarily convey CSLI to third parties who create records of that

information for their own business purposes. In reaching this conclusion, we do

not write on a blank slate. Perhaps if we did, we would reach a different

conclusion—we wholeheartedly recognize that Thompson raises valid concerns

about the application of the third-party doctrine in the digital age. But until the

Supreme Court instructs us otherwise, we are bound to follow its third-party

doctrine precedents. 2

The Fourth Amendment protects “[t]he right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches and

2
The Supreme Court recently granted certiorari in United States v.
Carpenter, 819 F.3d 880 (6th Cir. 2016), to address whether the Fourth
Amendment permits the warrantless seizure and search of historical CSLI.

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seizures.” U.S. Const. amend. IV. Historically, the Fourth Amendment was

understood as guarding primarily against physical governmental trespass upon the

areas enumerated in its text. See United States v. Jones, 565 U.S. 400, 405

(2012). But since 1967, the Supreme Court has recognized a second, privacy-

based approach to the Fourth Amendment as consistent with its original public

meaning. See Katz v. United States, 389 U.S. 347 (1967). Under that approach,

we ask (1) whether the individual asserting an expectation of privacy has

“exhibited an actual (subjective) expectation of privacy”; and (2) whether that

expectation is “one that society is prepared to recognize as reasonable.” See id. at

361 (Harlan, J., concurring). Where an expectation of privacy satisfies both of

these requirements, government invasion of that legitimate expectation of privacy

generally constitutes a search. Smith v. Maryland, 442 U.S. 735, 740 (1979).

Relying on Katz, Thompson contends cell-phone users have a legitimate

expectation of privacy in their historical CSLI, given the ubiquity of cell phones

in modern American life and their ability to store and generate large amounts of

personal information, including information about a cell-phone user’s location.

We are not the first circuit court to confront this issue: four other circuits

have already considered and rejected Thompson’s position. First, in 2013, the

Fifth Circuit held that the government’s acquisition of CSLI under § 2703(d) does

not constitute a search or seizure subject to the Fourth Amendment’s warrant

requirement. In In re Application of the United States for Historical Cell Site

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Data, 724 F.3d 600 (5th Cir. 2013), the court explained that historical CSLI “is

clearly a business record” created by a third party from information that cell-

phone users turn over voluntarily. Id. at 611–13. Writing for the majority, Judge

Clement explained that “who is recording an individual’s information initially is

key,” because when an individual “knowingly exposes his activities to third

parties, he surrenders Fourth Amendment protections.” Id. at 610 (quoting

Reporters Comm. for Freedom of Press v. Am. Tel. & Tel. Co., 593 F.2d 1030,

1043 (D.C. Cir. 1978)).

Judge Clement therefore analyzed the constitutionality of § 2703(d) under a

pair of Supreme Court cases dealing with business records created by a third

party—namely, United States v. Miller, 425 U.S. 435 (1976), and Smith v.

Maryland, 442 U.S. 735 (1979). The Fourth, Sixth, and Eleventh circuits have

since done the same. See United States v. Graham, 824 F.3d 421, 426 (4th Cir.

2016) (en banc) (“[T]he question before us is whether the government invades an

individual’s reasonable expectation of privacy when it obtains, from a third party,

the third party’s records, which permit the government to deduce location

information. . . . [T]he cases that establish the third-party doctrine provide the

answer.”); United States v. Carpenter, 819 F.3d 880, 888–89 (6th Cir. 2016)

(“Whether a defendant had a legitimate expectation of privacy in certain

information depends in part on what the government did to get it. . . . This case

involves business records obtained from a third party . . . .”) (citing Miller, 425

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U.S. at 443), cert. granted, 2017 U.S. App. LEXIS 3686 (U.S. 2017) ; United

States v. Davis, 785 F.3d 498, 511 (11th Cir. 2015) (en banc) (“[L]ike the bank

customer in Miller and the phone customer in Smith, Davis has no subjective or

objective reasonable expectation of privacy in MetroPCS’s business records

showing the cell tower locations that wirelessly connected his calls. . . .”).

These circuit decisions also generated thoughtful dissents. In United States

v. Davis, for example, Judge Martin dissented from the en banc majority opinion,

because she would have distinguished CSLI from the conventional telephone and

bank records in Smith and Miller and therefore would have held § 2703(d)

unconstitutional. Judge Martin warned of the potential consequences of the

majority’s holding in an era of rapid technological change, stating “the majority’s

blunt application of the third-party doctrine threatens to allow the government

access to a staggering amount of information that surely must be protected under

the Fourth Amendment,” such as a person’s web-search history. See Davis, 785

F.3d at 535–36 (Martin, J., dissenting). And because she would not have decided

the issue under the third-party doctrine, Judge Martin explained that in today’s

digital world, she believes cell-phone users have a legitimate, reasonable

expectation of privacy that their location information will be kept private. Id. at

539.

Similarly, in United States v. Graham, Judge Wynn dissented in part from

the opinion of the court, because he believed cell-phone users do not voluntarily

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convey their CSLI. Judge Wynn explained his view that voluntary conveyance

has two components: “knowledge of particular information and an action

submitting that information.” Graham, 824 F.3d at 443 (Wynn, J., dissenting).

Unlike the majority, Judge Wynn found “no reason to think that a cell phone user

is aware of his CSLI, or that he is conveying it.” Id. at 445. He also pointed out

that CSLI can be automatically generated even when a user receives a call. Id. In

the absence of voluntary conveyance, then, Judge Wynn would have continued to

the Fourth Amendment reasonableness inquiry and held the government violates

reasonable expectations of privacy when it obtains CSLI without a warrant. And

like Judge Martin, Judge Wynn also highlighted his concerns about the

application of the third-party doctrine to new technology, given heightened

privacy interests and the potential for government overreach.

Although these dissents raise some valid points, we agree with the majority

opinions that Miller and Smith provide the applicable framework for considering

whether § 2703(d) violates the Fourth Amendment. In Miller, the question before

the Supreme Court was whether the defendant had a reasonable expectation of

privacy in subpoenaed copies of his checks and other bank records maintained in

accordance with the Bank Secrecy Act. 425 U.S. at 437. The Court held the

defendant did not have a legitimate expectation of privacy in the subpoenaed

records, reasoning the defendant could “assert neither ownership nor possession”

of the documents; instead, the records were “the business records of the banks”

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and related to transactions to which the banks were a party. Id. at 440–41. The

Court explained the bank records were “not confidential communications,” but

rather “contain[ed] only information voluntarily conveyed to the banks and

exposed to their employees in the ordinary course of business.” Id. at 442. And

the Court reiterated it had repeatedly held that the Fourth Amendment does not

forbid “the obtaining of information revealed to a third party and conveyed by

him to Government authorities, even if the information is revealed on the

assumption that it will be used only for a limited purpose and the confidence

placed in the third party will not be betrayed.” Id. at 443.

Several years later, in Smith, the Court held the third-party doctrine applied

to the warrantless installation of a pen register used to record telephone numbers

dialed from the defendant’s home. 442 U.S. at 743–46. Applying the

reasonableness test from Katz, the Court rejected the defendant’s claim that he

had a legitimate expectation of privacy in the phone numbers dialed on his home

telephone. Id. at 742. In doing so, the Court distinguished the device used in

Katz, where the government had listened to the contents of a phone conversation,

from the pen register at issue in Miller, which recorded only the numbers dialed

from the phone. Id. at 741. And, the Court reasoned, telephone users “typically

know that they must convey numerical information to the phone company; that

the phone company has facilities for recording this information; and that the

phone company does in fact record this information for a variety of legitimate

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business purposes.” Id. at 743. Because the defendant voluntarily turned over his

numerical information to a third-party phone company, he lacked a legitimate

expectation of privacy in that information. Id. at 743–44.

So too here. To begin, fundamentally it is not the government who is

initially gathering users’ historical CSLI, but rather third-party service providers

who create records for their own business purposes. This distinction matters a

great deal, as the Supreme Court has repeatedly emphasized in its third-party

cases. See Miller, 425 U.S. at 443 (listing cases). The Fourth Amendment is a

bulwark against government action. And indeed, every other circuit has likewise

focused on who is collecting CSLI in the first instance. For example, in

Carpenter, Judge Kethledge wrote, “[w]hether a defendant had a legitimate

expectation of privacy in certain information depends in part on what the

government did to get it. . . . This case involves business records obtained from

a third party, which can only diminish the defendants’ expectation of privacy in

the information those records contain.” 819 F.3d at 888; see also Davis, 785 F.3d

at 514 (“MetroPCS, not the government, built and controlled the electronic

mechanism (the cell towers) and collected its cell tower data for legitimate

business purposes.”).

Furthermore, under the same rationale the Court articulated in Miller and

Smith, cell-phone users voluntarily turn over their CSLI to service providers, thus

relinquishing any reasonable expectation of privacy. In Miller, the Court stated,

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“The depositor takes the risk, in revealing his affairs to another, that the

information will be conveyed by that person to the Government . . . .” 425 U.S.

at 443. And in Smith, the Court explained that when the defendant used his

phone, he “voluntarily conveyed numerical information to the telephone company

and ‘exposed’ that information to its equipment in the ordinary course of

business,” thus “assum[ing] the risk that the company would reveal to police the

numbers he dialed.” 442 U.S. at 744. The Court also noted that “[t]he fortuity of

whether or not the phone company in fact elects to make a quasi-permanent

record of a particular number” had no bearing on the constitutional question. Id.

at 745.

Applying this reasoning here, we agree with the other circuits that “any

cellphone user who has seen her phone’s strength fluctuate must know that, when

she places or receives a call, her phone ‘exposes’ its location to the nearest cell

tower and thus to the company that operates the tower.” See Carpenter, 819 F.3d

at 888 (first citing Davis, 785 F.3d at 511; then citing In re Application for

Historical Cell Site Data, 724 F.3d at 614). And we agree with the Fifth Circuit

that, “[e]ven if this cell phone-to-tower transmission was not ‘common

knowledge’ . . . cell phone service providers’ and subscribers’ contractual terms

of service and providers’ privacy policies expressly state that a provider uses a

subscriber’s location information to route his cell phone calls.” Id. at 613. These

documents also “inform subscribers that the providers not only use the

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information, but collect it” and “will turn over these records to government

officials if served with a court order.” Id. In fact, such disclaimers go above and

beyond what the Constitution requires: Smith tells us users’ knowledge that

business records are being created does not “make any constitutional difference.”

442 U.S. at 745.

Nevertheless, Thompson contends the third-party doctrine has no

application here, because that doctrine presumes a voluntary relinquishment of

information. And since a cell phone’s transmission of location information is

“automatic and surreptitious,” Thompson argues, and providers gather and retain

location information whenever calls, text messages, or data are sent or received,

individuals do not voluntarily disclose their CSLI to service providers. We

disagree. Cell-phone users voluntarily enter arrangements with service providers

knowing they “must maintain proximity to the provider’s cell towers” in order for

their phones to function. Graham, 824 F.3d at 430; see also Davis, 785 F.3d at

520 (Pryor, J., concurring) (“[C]ell phone users realize that their calls are routed

through nearby cell towers. It is no state secret that cell phones work less

effectively in remote areas without cell towers nearby.”).

Finally, we emphasize that like the phone numbers recorded by the pen

register in Smith, CSLI is not a record of conversations between individuals, but

rather a record of the transmission of data that occurs to facilitate those

conversations. As Judge Kethledge explained in Carpenter, “federal courts have

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long recognized a core distinction” between the content of personal

communications and the information necessary to convey that content. 819 F.3d

at 887. In other words, “although the content of personal communications is

private, the information necessary to get those communications from point A to

point B is not.” Id. Thus, like the numerical information in Smith, CSLI is not

protected by the Fourth Amendment, because it functions merely “as a means of

establishing communication.” See 442 U.S. at 741.

In reaching our holding today, we recognize the difficulties inherent in

applying longstanding precedent to new technology, which has progressed at an

exponential pace in the four decades since Miller and Smith were decided. We

are acutely aware of the privacy concerns accompanying technological

advancement, particularly in our society, where using a cell phone has become a

near necessity in the modern American economy. And we acknowledge that

distinguishing between the content of communication and the means of

transmission may be more difficult for other types of data, such as web-browsing

history. But today we focus on the narrow question before us: whether Thompson

has a reasonable expectation of privacy in his historical CSLI. And for the

reasons above, we hold he does not.

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 Thompson relies on the Supreme Court’s decision in United States v. Jones

to argue that societal expectations of privacy have changed. 3 He points to Justice

Sotomayor’s concurrence, where she opined, “it may be necessary to reconsider

the premise that an individual has no reasonable expectation of privacy in

information voluntarily disclosed to third parties,” characterizing this approach as

“ill suited to the digital age, in which people reveal a great deal of information

about themselves to third parties in the course of carrying out mundane tasks.”

Jones, 565 U.S. at 417 (Sotomayor, J., concurring). This may well be true. But

Justice Sotomayor’s concurrence was not the opinion of the Court. And in any

event, she merely called into question the future of the third-party doctrine. Until

3
As part of his Fourth Amendment argument, then, Thompson contends
cell-phone users have a reasonable expectation of privacy in their CSLI because
societal expectations of privacy have changed in light of technological advances.
The government believes Thompson has waived this argument by failing to raise
it below. But in his objection to the government’s application for § 2703(d)
orders, Thompson argued that “a phone user’s location is constitutionally
protected by the Fourth Amendment,” citing for support the Eleventh Circuit’s
panel opinion in United States v. Davis, 754 F.3d 1205 (2014), overruled in part
by United States v. Davis, 785 F.3d 498 (2015) (en banc). After reviewing the
record, we conclude Thompson adequately preserved his arguments for appeal.

Our conclusion is bolstered by the district court’s discussion of the Fourth
Amendment issue in its order granting the government’s application. In rejecting
Thompson’s arguments, the court decided not to follow Davis. Instead, the court
relied on the Fifth Circuit’s decision in In re Application for Historical Cell Cite
Data, where the court held cell-phone users lack a reasonable expectation of
privacy in their CSLI, because users voluntarily convey that information to third
parties. The court’s thorough discussion of reasonable expectations of privacy in
CSLI further indicates Thompson sufficiently preserved his Fourth Amendment
arguments for our review.

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a majority of justices on the Court instructs us otherwise, we are still bound by

the third-party doctrine as it exists today.

Ultimately, Jones tells us very little that is relevant here, since its holding

did not rely on a privacy theory of the Fourth Amendment. Instead, five justices

agreed the government’s installation of a GPS device on the defendant’s vehicle

after the search warrant had expired constituted a physical trespass contrary to the

Fourth Amendment. Writing for the majority, Justice Scalia explained the

government’s installation and use of a GPS device surely “would have been

considered a ‘search’ within the meaning of the Fourth Amendment when it was

adopted.” Id. at 404–05. Justice Scalia expressly stated “the present case” did

not require the court to consider whether electronic surveillance of the defendant,

“without an accompanying trespass,” would be “an unconstitutional invasion of

privacy.” Id. at 412.

To be sure, like Justice Sotomayor and the dissenting judges in other

circuit-level CSLI cases, Thompson raises valid concerns about the third-party

doctrine in the digital age. The aggregation of an individual’s location data can

tell the government a great deal about that person. As Justice Sotomayor stated in

Jones, “GPS monitoring generates a precise, comprehensive record of a person’s

public movements that reflects a wealth of detail about her familial, political,

professional, religious, and sexual associations.” 565 U.S. at 415 (Sotomayor, J.,

concurring). The same could be said about a person’s web-browsing history.

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And we, too, fear the Orwellian-style surveillance state that could emerge from

unfettered government collection of personal data.

At this point, however, we can only speculate how the Supreme Court will

address these concerns, now that it has taken up the question of historical CSLI

by granting certiorari in Carpenter. Perhaps the Supreme Court will revisit the

third-party doctrine in light of evolving technology, especially given the ubiquity

of cell phones in Americans’ lives, possible changing societal expectations of

privacy, and their implications on the national economy. And in fact, in Riley v.

California, 134 S. Ct. 2473 (2014), Chief Justice Roberts famously recognized

that modern cell phones “are now such a pervasive and insistent part of daily life

that the proverbial visitor from Mars might conclude they were an important

feature of human anatomy.” Id. at 2484. The Chief Justice went on to distinguish

cell phones from the types of physical objects in earlier cases involving the search

incident to arrest doctrine, citing rapid technological change and heightened

privacy interests, since cell phones store “vast quantities of personal information”

and raise unique concerns about government overreach. Id. at 2484–85. The

Court may well draw on these types of cell-phone-specific concerns to expressly

limit the reach of the third-party doctrine to business records created from the use

of conventional telephones or bank statements. If the Court were to hold that

cell-phone users enjoy a reasonable expectation of privacy in their historical

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CSLI, then law enforcement would simply be required to obtain a warrant

supported by probable cause pursuant to § 2703(c)(1)(A) of the SCA.

But again, today our analysis of the narrow issue of historical CSLI is

governed by the third-party doctrine as it currently exists. In the meantime, we

believe privacy concerns about historical CSLI are best directed to legislative

bodies, which are better equipped to evaluate the types of empirical studies and

policy arguments Thompson presents and weigh the interests on both sides. And

indeed, at least six states—Colorado, Maine, Minnesota, Montana, Tennessee, and

Utah—have legislated privacy protections for CSLI. See Colo. Rev. Stat. Ann.

§ 16-3-303.5(2) (West 2014); Me. Rev. Stat. Ann. tit. 16, § 648 (West 2014);

Minn. Stat. Ann. §§ 626A.28(3)(d), 626A.42(2) (West 2014); Mont. Code Ann.

§ 46-5-110(1)(a) (West 2013); Tenn. Code Ann. § 39-13-610(b) (West 2014);

Utah Code Ann. § 77-23c-102(1)(a) (West 2016). These state statutes generally

require law enforcement to procure a warrant before obtaining CSLI, with most

allowing for certain exceptions such as exigent circumstances or other exceptions

to the warrant requirement.

So for now, at least, as Judge Clement advised in In re Application for

Historical Cell Site Data, the recourse for cell-phone users’ desire for their

historical CSLI to remain private “is in the market or the political process: in

demanding that service providers do away with such records (or anonymize them)

or in lobbying elected representatives to enact statutory protections. The Fourth

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Amendment, safeguarded by the courts, protects only reasonable expectations of

privacy.” 724 F.3d at 615 (emphasis added).

In sum, we hold that cell-phone users lack a reasonable expectation of

privacy in their historical CSLI, which users voluntarily convey to third-party

cell-service providers. Therefore, the district court did not err in granting the

government’s application for orders requesting historical CSLI under § 2703(d) or

in admitting some of that CSLI at a pretrial proceeding. 4

C. Denial of Motion to Suppress

Thompson next contends the district court erred in denying his motion to

suppress evidence obtained from a search of his residence, because there was

insufficient probable cause to support the search warrant after any suppressed

calls were excised from the affidavits. 5 But Thompson conceded at oral argument

that the CSLI issue is a “lynchpin” for him: if the CSLI was properly admitted,

then so were the calls that pinged the three towers in the Junction City area.

Having concluded the CSLI was properly obtained and admitted, the affidavits

supporting the application for a warrant to search Thompson’s residence

sufficiently alleged probable cause.

4
In so holding, we also reject Thompson’s alternative argument that
obtaining CSLI requires a Title III wiretap warrant. Although the government
certainly could have chosen to apply for a Title III warrant, it was not required to.
5
We reject Thompson’s suppression arguments on the merits. But in any
event, none of the evidence Thompson challenges was admitted at trial.

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 We also reject Thompson’s contention that the district court should not

have admitted any of the intercepted calls at trial, because the court erred in

requiring the government to prove the phones were in Kansas’s Eighth Judicial

District by a preponderance of the evidence, rather than clear and convincing

evidence. This argument lacks merit. For one thing, Thompson fails to cite any

authority for this proposition. And for another, this court has applied a

preponderance standard in reviewing the sufficiency of the evidence on venue in a

criminal case—an element of every crime which has constitutional underpinnings.

See United States v. Kelly, 535 F.3d 1229, 1233 (10th Cir. 2008); cf. United

States v. Bowers, 660 F.2d 527, 531 (5th Cir. 1981). If a preponderance is the

proper standard for determinations of venue in criminal cases, then surely the

same standard applies to the jurisdictional question that was at issue here.

Even if the court erred in analogizing to venue in criminal cases—and we

do not believe it did—the Supreme Court has stated, “the controlling burden of

proof at suppression hearings should impose no greater burden than proof by a

preponderance of the evidence.” See United States v. Matlock, 415 U.S. 164, 177

n.14 (1974). The use of the preponderance standard in the Fourth Amendment

context therefore also suggests the same standard applies for questions of

jurisdictional fact involving a wiretap order. And under a preponderance

standard, the government clearly met its burden of proving the calls from the

target phones were made in the Eighth Judicial District.

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 Accordingly, we hold the district court did not err in denying Thompson’s

motion to suppress evidence obtained from a search of his residence.

D. Reasonable Doubt Instruction

Thompson next contends the district court’s reasonable doubt instruction

was constitutionally deficient. Pursuant to Federal Rule of Appellate Procedure

28(j), Thompson joins in and adopts by reference the arguments raised by his co-

defendant Ivory.

The factual background is the same as that described in United States v.

Ivory, No. 15-3238 (10th Cir. 2017). And like Ivory, Thompson cannot meet his

burden of establishing plain error. As we explain in Ivory, our recent decision in

United States v. Petty, 856 F.3d 1306 (10th Cir. 2017), forecloses any possibility

of error here. In Petty, we reviewed de novo the constitutionality of a materially

identical reasonable doubt instruction and squarely rejected the precise challenges

Ivory and Thompson now assert on appeal.

For the same reasons articulated in Ivory, we discern no error in the court’s

reasonable doubt instruction and affirm Thompson’s convictions.

E. Challenges to Thompson’s Sentence

Finally, Thompson challenges his sentence in two ways, arguing the court

erred in (1) relying on an extrapolation method to calculate the drug quantity

attributable to him as relevant conduct; and (2) imposing a four-level leadership

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enhancement without sufficient evidentiary support. We first explain the relevant

background information and then consider Thompson’s arguments in turn.

Before sentencing, the probation officer prepared the PSR. To calculate the

quantity of drugs attributable to Thompson, the PSR extrapolated from two

sources: (1) a recorded encounter between Thompson and a confidential informant

in which Thompson said he was purchasing approximately nine ounces of cocaine

every week; and (2) a telephone call in which Thompson purchased approximately

five ounces of powder cocaine from one of his suppliers. Using these amounts,

the PSR attributed seven ounces of powder cocaine (the midpoint between five

and nine) to Thompson and multiplied by forty-eight weeks, the amount of time

Thompson was involved in the conspiracy. The PSR converted that amount to

cocaine base, which yielded a total of 8.477 kilograms and a corresponding base

offense level of 36. The PSR then applied a four-level enhancement for being a

leader or organizer of a criminal activity involving five or more participants to

reach a total offense level of 40, a criminal history category of IV, and a

corresponding advisory guidelines range of 360 months to life in prison.

Thompson objected to both the drug-quantity calculation and the leadership

enhancement.

At sentencing, the court rejected Thompson’s objections, finding the

extrapolation method was reliable and attributing 8.477 kilograms of cocaine base

to Thompson. The court also found the factors in the application note to the

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leadership enhancement guideline supported applying the enhancement. The

court acknowledged that one factor—how the co-conspirators distributed the

proceeds of the conspiracy—was ambiguous, but it stated the other factors clearly

supported a finding that Thompson served in a leader or organizer role.

Accordingly, the court imposed the four-level enhancement, which yielded a

guidelines range of 360 months to life in prison. The court sentenced Thompson

to 360 months in prison.

1. Extrapolation Method for Drug-Quantity Calculation

Thompson first argues the district court erred in relying on the

extrapolation method in the PSR, which attributed 8.477 kilograms of crack

cocaine to Thompson as relevant conduct.

We review for clear error a district court’s determination of the drug

quantity attributable to a defendant, including the scope of jointly undertaken

criminal activity. United States v. Sells, 541 F.3d 1227, 1235 (10th Cir. 2008).

We will reverse a drug-quantity finding “only if the district court’s finding was

without factual support in the record or we are left with the definite and firm

conviction that a mistake has been made.” United States v. Ryan, 236 F.3d 1268,

1273 (10th Cir. 2001).

In conspiracy cases, the Guidelines require a district court to make

particularized findings regarding both jointly undertaken criminal activity and the

reasonably foreseeable acts of others in connection with that criminal activity

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before determining the drug quantity attributable to a defendant. See USSG

§ 1B1.3. Extrapolation can be a permissible method of calculating that quantity.

We have previously recognized that “when the actual drugs . . . are not seized, the

trial court may rely upon an estimate to establish the defendant’s guideline

offense level so long as the information relied upon has some basis of support in

the facts of the particular case and bears sufficient indicia of reliability.” United

States v. Dalton, 409 F.3d 1247, 1251 (10th Cir. 2005) (quotation marks omitted).

But we have cautioned, “the ‘need to estimate drug quantities at times is not a

license to calculate drug quantities by guesswork.’” Id. (quoting United States v.

Richards, 27 F.3d 465, 469 (10th Cir. 1994)). Thus, in considering whether a

drug-quantity estimation is clearly erroneous, we look for other corroborating

evidence to determine whether the estimation has sufficient factual support. See

Dalton, 409 F.3d at 1251.

Thompson makes several challenges to the district court’s drug-quantity

calculation. None has merit. First, Thompson claims the court clearly erred in

crediting expert testimony that interpreted a recorded conversation between

Thompson and a confidential informant. When asked how much cocaine he was

distributing, Thompson responded, “‘bout a nine. I ain’t trying to do too much.”

Aplt. Br. at 37. A Kansas Bureau of Investigation Agent testified that this meant

when Thompson received crack cocaine from his suppliers, he received

approximately nine ounces of it each time. The expert’s interpretation is a

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plausible basis for extrapolating from the nine-ounce amount as part of the drug-

quantity calculation. At sentencing the district court referenced other portions of

the PSR which described numerous instances of Thompson selling various

amounts of cocaine. Viewing the record as a whole, then, the court’s decision to

credit this expert testimony for the nine-ounce quantity was not clearly erroneous.

Thompson next challenges the PSR’s reference to intercepted phone calls in

which Thompson discussed purchasing five ounces of powder cocaine from a co-

defendant, Steven Clark. At sentencing, Thompson objected to the district court’s

consideration of the call, because both sides agreed it was a suppressed call. The

court overruled the objection, finding there was an alternative source of the

information: Clark gave the government the same information through proffer

statements and as part of the factual basis for his guilty plea. Thompson now

argues for the first time that the proffer statement was not a true alternative

source, because the suppressed call started a chain of events that led to Clark’s

proffer statement, which in turn was tainted fruit. But Thompson has waived this

argument by failing to argue for plain error, “surely mark[ing] the end of the road

for an argument for reversal not first presented to the district court.” See

Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1131 (10th Cir. 2011).

Finally, Thompson argues the district court clearly erred by not attributing

200.48 grams to him—an amount that excludes the quantities extrapolated from

the conversation with the confidential informant and the Clark phone call/proffer

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statement. But as the district court recognized at sentencing, “one of the

problems with relevant conduct findings in this context is drug traffickers don't

keep good records. There are not inventory records on when we got this and

when it went out, that sort of thing.” R., Vol. VII at 4307. The court thus

decided to credit the extrapolation in paragraph 119 of the PSR, finding it was

sufficiently supported by other reliable evidence in the record. We agree. If

anything, the figure derived from the extrapolation was likely a conservative

estimate, given the numerous other drug transactions Thompson was involved in.

In sum, finding no clear error in the district court’s drug-quantity findings,

we affirm Thompson’s sentence.

2. Four-Level Leadership Enhancement

Thompson next contends the court erred in imposing the four-level

leadership sentencing enhancement, because there was not sufficient evidence in

the record to support the court’s finding that Thompson was a leader or organizer

of the conspiracy for purposes of the enhancement.

We review challenges to the imposition of guidelines enhancements for

clear error as to findings of fact and de novo as to questions of law. United States

v. Irvin, 682 F.3d 1254, 1276–77 (10th Cir. 2012). In doing so, we give “due

deference to the district court’s application of the guidelines to the facts.” United

States v. Reed, 1 F.3d 1105, 1110 (10th Cir. 1993) (quoting 18 U.S.C. § 3742(e)).

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 Section 3B1.1(a) of the Guidelines provides for a four-level increase in a

defendant’s total offense level “[i]f the defendant was an organizer or leader of a

criminal activity that involved five or more participants or was otherwise

extensive.” The application notes explain,

Factors the court should consider include the exercise of
decision making authority, the nature of participation in
the commission of the offense, the recruitment of
accomplices, the claimed right to a larger share of the
fruits of the crime, the degree of participation in planning
or organizing the offense, the nature and scope of the
illegal activity, and the degree of control and authority
exercised over others.

USSG § 3B1.1 cmt. n.4.

We have previously stated, “[i]n considering these factors, the sentencing

court should remain conscious of the fact that the gravamen of this enhancement

is control, organization, and responsibility for the actions of other individuals,

because § 3B1.1(a) ‘is an enhancement for organizers or leaders, not for

important or essential figures.’” United States v. Torres, 53 F.3d 1129, 1142

(10th Cir. 1995) (quoting United States v. Roberts, 14 F.3d 502, 523 (10th Cir.

1993)). And we have clarified, “[t]his is not a particularly onerous showing: ‘The

Guideline requires only a conclusion that the defendant supervised at least one

such participant; it does not require the court to identify specific examples.’”

United States v. Gallant, 537 F.3d 1202, 1241 (10th Cir. 2008) (quoting United

States v. Aptt, 354 F.3d 1269, 1287 (10th Cir. 2004)).

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 Here, Thompson argues the district court clearly erred because the record is

completely devoid of evidence to support the application of the enhancement.

But Thompson mischaracterizes the record, which is replete with instances of

Thompson recruiting and directing other members of the conspiracy. For

example, the PSR recounts how Thompson recruited co-conspirator Charles

Foster as a customer and then began using him to facilitate drug transactions with

third persons. And the PSR provides specific examples of Foster and another co-

conspirator, Patricia Foy, completing drug transactions on Thompson’s behalf.

Both Foster and Foy acknowledged serving as middlemen for Thompson in

Mirandized, videotaped statements made upon their arrests. Likewise, the PSR

details how co-conspirator Barbara Shaw served as a distributor for Thompson.

Intercepted phone calls and text messages showed Shaw had repeatedly contacted

Thompson requesting crack cocaine for herself and others.

On this record, we cannot agree with Thompson that the district court

clearly erred in applying the four-level leadership enhancement. Accordingly, we

affirm Thompson’s sentence.

III. Conclusion

For the foregoing reasons, we AFFIRM Thompson’s convictions and

sentence.

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