United States v. Rolando Antuain Williamson

USCA11 Case: 22-12800 Document: 141-1 Date Filed: 02/13/2025 Page: 1 of 46

[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-12800

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ISHMYWEL CALID GREGORY,

HENDARIUS LAMAR ARCHIE,

ROLANDO ANTUAIN WILLIAMSON,

ADRIEN HIRAM TAYLOR,

Defendants-Appellants.

____________________

Appeals from the United States District Court

for the Northern District of Alabama

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2 Opinion of the Court 22-12800

D.C. Docket No. 2:19-cr-00466-ACA-JHE-9

____________________

____________________

No. 22-12809

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HENDARIUS LAMAR ARCHIE,

a.k.a. Hen,

Defendant-Appellant.

____________________

Appeals from the United States District Court

for the Northern District of Alabama

D.C. Docket Nos. 2:20-cr-00151-ACA-JHE-1,

2:19-cr-00466-ACA-JHE-17

____________________

____________________

No. 22-12843

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22-12800 Opinion of the Court 3

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROLANDO ANTUAIN WILLIAMSON,

a.k.a. Baldhead,

a.k.a. Ball Head,

Defendant-Appellant.

____________________

Appeals from the United States District Court

for the Northern District of Alabama

D.C. Docket No. 2:20-cr-00405-ACA-JHE-1

____________________

Before JORDAN, NEWSOM, and BRASHER, Circuit Judges.

BRASHER, Circuit Judge:

Rolando Williamson, Hendarius Archie, Ishmywel Gregory,

and Adrien Taylor appeal their convictions concerning several

drug distribution and conspiracy charges. Williamson argues,

among other things, that the district court erred in denying his mo-

tions to suppress the results of warrants to search a house and

apartment. Probable cause for the warrant to search the house was

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4 Opinion of the Court 22-12800

based, in part, on evidence gathered by pole cameras positioned

outside it. He contends that the warrantless use of these pole cam-

eras—when focused on his home and recording non-stop—vio-

lated the Fourth Amendment. Archie argues that the district court

erred in allowing improper opinion testimony from a case agent.

Gregory challenges the district court’s finding as to the type and

amount of drugs attributable to him at sentencing. And each de-

fendant challenges the sufficiency of the evidence supporting his

respective conspiracy conviction.

We conclude that only Williamson and Gregory have meri-

torious arguments. As to the pole cameras, we hold that their use

did not violate Williamson’s Fourth Amendment rights. The pole

cameras surveilled areas exposed to the public, and the fact that

they recorded non-stop is of little relevance—the Constitution does

not forbid the government from using technology to conduct law-

ful investigations more efficiently. We conclude that the case

agent’s challenged opinion testimony—proper or improper—did

not affect Archie’s substantial rights because the testimony con-

cerned the distribution of methamphetamine and Archie was con-

victed only of the distribution of marijuana. We hold, after a thor-

ough review of the record, that the evidence was sufficient as to

each defendant’s conspiracy conviction. But, because conspiracy is

a lesser included offense to Williamson’s additional conviction of

engaging in a continuing criminal enterprise, Williamson’s conspir-

acy conviction must be vacated. Lastly, in light of the jury’s drug-

quantity finding, Gregory’s sentence of 40 years is above the statu-

tory maximum. Accordingly, we affirm each conviction, except

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22-12800 Opinion of the Court 5

Williamson’s conspiracy conviction, which we vacate, and we af-

firm each sentence, except Gregory’s, which we vacate in its en-

tirety and remand for resentencing, consistent with this opinion.

I.

A.

Throughout 2019, the police investigated Rolando William-

son, Ishmywel Gregory, Adrien Taylor, and Hendarius Archie for

drug trafficking in and around Birmingham, Alabama. Specifically,

the government believed that Williamson, Gregory, Taylor, and

Archie were working together to sell heroin, cocaine, meth, and

marijuana.

In April of 2019, the government executed a controlled buy

between Gregory and a cooperating witness. The witness agreed

to purchase half an ounce of cocaine for $650. The government

recorded phone calls planning the controlled buy and recorded au-

dio of the controlled buy itself. As a result of this controlled buy,

the government applied for and received authorization to intercept

communications from Gregory. One such communication con-

cerned Gregory arranging to meet with a person so that Gregory

could pay him approximately $30,000 that he owed for meth.

The government also executed two separate controlled buys

between Taylor and a confidential source. The first occurred in

April of 2019, when the confidential source purchased two ounces

of meth from Taylor for $600. The second occurred in June of 2019,

when the confidential source purchased three ounces of meth from

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6 Opinion of the Court 22-12800

Taylor for $870. In between these controlled buys, the government

applied for and obtained authorization to intercept communica-

tions from Taylor. Several of the intercepted calls concerned drug

trafficking, and, in particular, cocaine and meth.

As part of the government’s continuing investigation, Agent

Wayne Gerhardt used two pole cameras to observe Williamson’s

home—one overlooking the front of his house and the other over-

looking the backyard. Both pole cameras were installed in October

of 2018 without a warrant, ran continuously through August of

2019, and recorded soundless footage of activity in their range of

vision. The cameras could view only what was visible from the

public street in front of the house and the public alley behind it.

A cooperating informant—led by Agent Gerhardt—called

Williamson and set up a purchase of narcotics. The purchase took

place inside Williamson’s home in June of 2019. Agent Gerhardt

used pole cameras to record the witness arriving at the premises

and an audio recording device—attached to the witness—to record

the transaction itself. After meeting with Williamson, the witness

exited the home with a sample size of heroin mixed with fentanyl.

Agents applied for and obtained authorization to intercept commu-

nications from a cell phone used by Williamson.

In August of 2019, officers arrested Williamson. At the time

of his arrest, he was in possession of two handguns—one in his car

and one on his person—a small amount of marijuana, and approx-

imately $13,968 in cash. The same day, officers executed a search

warrant at Williamson’s home and recovered digital scales, plastic

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bags often used for narcotics, a pistol, ammunition, marijuana in-

side a suitcase, several bags of marijuana, and meth. To support

probable cause for the home warrant, Agent Gerhardt’s warrant

application relied on pole camera footage, the controlled buy from

June of 2019, and subsequent transactions. Specifically, Gerhardt’s

supporting affidavit provided evidence—detailing, among other

things, intercepted phone calls, the contents of collected, aban-

doned trash, and observations Gerhardt and others had—that Wil-

liamson was engaged in drug-related transactions with at least four

others during the period between the controlled purchase and the

application for the warrant.

About two months later, officers executed a search warrant

at Williamson’s apartment and recovered 5,700 grams of mariju-

ana, 135 grams of fentanyl and heroin mixed together, four fire-

arms, 1,400 rounds of ammunition, $95,000 in cash, and $45,000

worth of jewelry. They also recovered items bearing Williamson’s

name, including a passport and plane ticket. The officers supported

probable cause for the apartment warrant with an informant’s

statement that he had observed Williamson storing money and

personalized, expensive jewelry in the apartment—specifically,

Williamson’s $30,000 gold necklace and “RAW” pendant, which he

purchased with no known source of income. As with the home

warrant’s supporting affidavit, the apartment warrant’s supporting

affidavit detailed intercepted communications concerning drug

trafficking and recounted physical surveillance of the residence.

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Based in part on pertinent interceptions of Williamson’s

communications, the government began intercepting Archie’s

communications and listened for approximately 30 days. Several of

those communications concerned drug trafficking. For example, at

least two such calls concerned marijuana. Officers eventually ar-

rested Archie at his home. Inside the home, officers found 74.6

grams of marijuana, a handgun, and a digital scale.

B.

A grand jury indicted Williamson, Taylor, Gregory, and

Archie of multiple counts. Williamson was charged with engaging

in a continuing criminal enterprise (Count 1); conspiracy to distrib-

ute one kilogram or more of heroin, five kilograms or more of co-

caine hydrochloride, 50 grams or more of meth, and 100 kilograms

or more of marijuana (Count 2); possession with intent to distrib-

ute marijuana (Count 3); the use and carry of a firearm during a

drug trafficking crime (Count 4); possession with intent to distrib-

ute 100 grams or more of heroin, 500 grams or more of meth, and

a detectable amount of marijuana (Count 5); possession with intent

to distribute 100 grams or more of heroin, 40 grams or more of

fentanyl, and a detectable amount of marijuana (Count 6); posses-

sion of a firearm in furtherance of a drug trafficking crime (Count

7); and distribution of heroin and fentanyl (Count 8). Taylor was

charged with conspiracy to distribute one kilogram or more of her-

oin and 50 grams or more of meth (Count 2); distribution of 50

grams or more of meth (Count 11); and distribution of five grams

or more of meth (Count 12). Both Williamson and Taylor were

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also charged with the use of a communication facility to facilitate

drug trafficking crimes (Counts 30–44 and 48–49 for Williamson

and 17–29 for Taylor). For his part, Gregory was charged with con-

spiracy to distribute five kilograms or more of cocaine hydrochlo-

ride and 50 grams or more of meth (Count 2) and distribution of

cocaine hydrochloride (Count 13). And Archie was charged with

conspiracy to distribute one kilogram or more of heroin, five kilo-

grams or more of cocaine hydrochloride, and 100 kilograms or

more of marijuana (Count 2).

Later, Williamson and Archie were indicted again in sepa-

rate cases. Williamson was charged with possession of a firearm in

relation to a drug trafficking crime. Archie was charged with pos-

session with the intent to distribute a controlled substance and pos-

session of a firearm in furtherance of a drug trafficking crime.

The defendants were tried jointly and the charges from each

separate case were consolidated for trial. At trial, several witnesses

testified that they were involved in drug trafficking with the de-

fendants. Isiah Thomas testified that he sold cocaine supplied by

Williamson for “five or six” years and that they had been dealing

drugs together for even longer. Errick Daniel, Derrick Bland, and

Leanthony Gillins lived at Williamson’s home and served as “mid-

dlemen” alongside Thomas—meaning that Williamson would sup-

ply them with drugs that they then sold to others. The government

presented evidence that Williamson received kilo quantities of co-

caine that he stored at his house, that he had suitcases full of mari-

juana stored at his apartment, and that he obtained a kilo or two of

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10 Opinion of the Court 22-12800

heroin monthly for resale from Detroit. Williamson relied on two

men—“Shezzy” and “Tuff”—to drive the heroin from Detroit to

Birmingham. When others were arrested, Williamson would front

them money so that they could obtain legal counsel. Williamson

described himself as “everybody’s backbone” following his arrest.

The government also presented recordings of five telephone

calls that Williamson made. They concern (1) Williamson checking

in with Darrius Johnson about his stock of drugs; (2) Williamson

confirming with Gillins that Williamson is “gonna still bring it”; (3)

Williamson setting up a drug deal with Thomas; (4) Williamson

and Johnson discussing the fact that Johnson had been stopped by

police and his truck had been searched soon after leaving William-

son’s house; and (5) Williamson and Tevion Poole discussing the

quality of two different strains of marijuana.

Demarcus Whitt testified that he had been dealing drugs

with Gregory since approximately 2017. At first, Whitt was buying

meth from Gregory—starting with ounces a few times a week and

progressing to kilo quantities. Then in 2019, Gregory lost his source

and Whitt began selling him kilos of meth. The government pre-

sented evidence that a cooperating witness met with Gregory and

purchased cocaine. The transaction was recorded. Other evidence

established that Gregory dealt drugs with Isaac Robinson who, in

turn, was a source for Williamson, selling him both meth and ma-

rijuana.

Thomas testified that he sold Taylor heroin. Likewise, Ken-

neth Johnson testified that he and Taylor began dealing drugs as

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early as 2012, “split up for some years,” and then resumed in 2018.

Taylor would supply Johnson with meth and heroin that Johnson

would then sell to others. Johnson testified that he once saw Taylor

with “like a pound” of meth. Both Johnson and Thomas’s testimo-

nies were corroborated by either phone calls or text messages. The

government also presented evidence that a cooperating witness

met with Taylor and purchased meth. The transaction was rec-

orded.

Thomas further testified that Archie was a middleman to

whom Williamson supplied three pounds of marijuana once or

twice a week. Thomas observed these transactions and testified

that they occurred over the course of about two years. The gov-

ernment presented evidence that, when Archie was arrested, he

was in possession of 74.6 grams of marijuana, a handgun, and a dig-

ital scale. Throughout the investigation, agents intercepted calls be-

tween co-conspirators related to drug trafficking, including calls

from each defendant.

Agent Gerhardt testified that the phrase “a cup of ice”—as

used on a phone call between Archie and another person—referred

to “one ounce or one-half ounce quantities of methamphetamine.”

Agent Gerhardt provided this testimony as a fact witness, not as an

expert witness. He explained that his conclusion as to the quantity

of meth being discussed was based on the purchase price men-

tioned during the call and his general knowledge of drug prices.

Archie objected that “if they wanted to elicit what a cup was from

Agent Gerhardt, that should have come in . . . his expert testimony

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that he knew that to be a certain amount or a certain weight.” The

district court ultimately overruled Archie’s objection, concluding

that the testimony was admissible as lay testimony.

The district court charged the jury in a manner consistent

with the pattern jury instruction. As to Williamson’s continuing

criminal enterprise count, the district court charged the jury that it

must find, among other things, that Williamson engaged in at least

three related violations of the federal controlled substances laws

with at least five other people. It specified that “it doesn’t matter”

whether those five persons are named in the superseding indict-

ment or whether the same five participated in each crime or partic-

ipated at different times. Williamson requested that the jury in-

struction be amended to include the statement that a “mere buyer-

seller relationship will not satisfy this requirement.” The district

court rejected Williamson’s request, finding that the pattern jury

instructions already “contemplated” the substance of Williamson’s

amendment and that going further would run the risk of confusing

the jury.

The jury convicted on most counts. It convicted Williamson

of engaging in a continuing criminal enterprise (Count 1); conspir-

acy to distribute or possession with intent to distribute heroin

weighing 100 grams or more, meth weighing 50 grams or more,

fentanyl weighing 40 grams or more, and marijuana weighing 100

kilograms or more (Count 2); possession with intent to distribute

marijuana (Count 3); possession of a firearm in relation to a drug

trafficking crime (Count 1 in 2:20-cr-405-ACA-JHE); possession

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with intent to distribute 100 grams or more of heroin, 500 grams

or more of meth, and marijuana (less than 100 kilograms) (Count

5); possession with intent to distribute 100 grams or more of her-

oin, 40 grams or more of fentanyl, and marijuana (less than 100 kil-

ograms) (Count 6); possession of a firearm in furtherance of a drug

trafficking crime (Count 7); distribution of heroin and fentanyl

(Count 8); and the use of a communication facility to facilitate a

drug trafficking crime (Counts 34, 35, 39, 40, and 41). It convicted

Taylor of distributing meth weighing 50 grams or more (Counts 2

and 11) and meth weighing five grams or more (Count 12)—and

the use of a communication facility to commit a drug trafficking

crime (Counts 20–22). It convicted Gregory of distributing cocaine

weighing less than 500 grams (Counts 2 and 13). And it convicted

Archie of conspiracy to distribute marijuana weighing 100 kilo-

grams or more (Count 2); possession with the intent to distribute a

controlled substance (Count 1 in 2:20-cr-151-ACA-JHE); and pos-

session of a firearm in furtherance of a drug trafficking crime

(Count 2 in 2:20-cr-151-ACA-JHE).

As relevant to this appeal, Williamson was sentenced for a

term of life as to Counts 1, 2, and 5; 60 months as to Count 3; 480

months as to Count 6; 240 months as to Count 8; and 48 months as

to each of Counts 34, 35, 39, 40, and 41, separately, with each count

to be served concurrently with the other; all followed by 60 months

as to Count 7, consecutively. At sentencing, counsel expressly

noted that “Count 2 is a lesser included offense of Count 1 and

groups in. But I understand that it’s—life is the guideline.”

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14 Opinion of the Court 22-12800

Gregory was sentenced to 480 months as to Count 2 and 360

months as to Count 13, separately, with each count to be served

concurrently with the other. Before sentencing, a presentence re-

port was prepared that recommended a base offense level of 38 due

to the amount of drugs attributable to Gregory, including 20 kilo-

grams of heroin and 100 kilograms of meth. Gregory objected, ar-

guing that he should only be held responsible for the 14.22 grams

of cocaine hydrochloride that the jury attributed to him. The dis-

trict court credited the testimony of the government’s trial wit-

nesses as to the drug quantity attributable to Gregory and ulti-

mately overruled his objection “based on the evidence as a whole.”

This appeal followed.

II.

The defendants raise six issues on appeal. First, Williamson

argues that two search warrants—one for a home and one for an

apartment—lacked probable cause because the home warrant was

supported by unconstitutional pole camera footage and both war-

rants were supported by stale information. He further contends

that the apartment warrant was an unlawful general warrant. Sec-

ond, each defendant challenges the sufficiency of the evidence sup-

porting his respective conspiracy conviction. Third, Williamson

challenges the sufficiency of the evidence supporting his convic-

tions for possession of a firearm in relation to a drug trafficking

crime, possession of a firearm in furtherance of a drug trafficking

crime, engaging in a continuing criminal enterprise, and the use of

a communication facility to commit a drug trafficking crime.

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Fourth, Archie argues that the district court erred when it allowed

improper opinion testimony from Agent Gerhardt as to the mean-

ing of the phrase “a cup of ice.” Fifth, Williamson argues that, as to

his continuing criminal enterprise conviction, the district court

erred by not instructing the jury that it must agree about which five

individuals Williamson organized or that “a mere buyer-seller rela-

tionship” does not satisfy the conviction’s requirements. Lastly,

Gregory challenges the substantive reasonableness of his sentence.

We address each issue in turn.

A.

We start with Williamson’s challenges to the warrants au-

thorizing searches of the home and apartment. First, as to the

home warrant, Williamson argues that the pole camera footage

used to generate probable cause constituted a warrantless search in

violation of the Fourth Amendment. He further contends that the

home warrant’s supporting affidavits relied on stale information.

Second, as to the apartment warrant, Williamson argues that its

supporting affidavits relied on stale information and that the war-

rant itself constituted an unlawful general warrant.

1.

We begin with the home warrant. The Fourth Amendment

protects “[t]he right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and sei-

zures.” A search occurs in two ways: when the government “ob-

tains information by physically intruding on a constitutionally

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protected area,” United States v. Jones, 565 U.S. 400, 407 n.3 (2012),

and “when an expectation of privacy that society is prepared to

consider reasonable is infringed,” United States v. Karo, 468 U.S. 705,

712 (1984) (quoting United States v. Jacobsen, 466 U.S. 109, 113

(1984)). Here, Williamson does not contend that a trespass oc-

curred. Instead, he asserts that the pole cameras invaded his rea-

sonable expectation of privacy because they were focused on his

home and recorded non-stop. We disagree.

First, we cannot say Williamson had a reasonable expecta-

tion of privacy in the areas surveilled—the front area and backyard

of his home—because they were both exposed to the public. See

Katz v. United States, 389 U.S. 347, 351 (1967). “What a person

knowingly exposes to the public, even in his own home or office,

is not a subject of Fourth Amendment protection.” Id. The front

area, by all accounts, was entirely visible to the public. And the

back area, Williamson himself concedes, is not fully enclosed. The

magistrate judge expressly found that “an observer standing [on a

public road] could see into the Arlington Avenue House’s back

yard, with her view obstructed only by some overgrown vegeta-

tion.” And Williamson does not challenge that factual finding as

clearly erroneous.

Williamson nonetheless argues that the Colorado Supreme

Court’s decision in People v. Tafoya, 494 P.3d 613 (Colo. 2021), sup-

ports his position. But we disagree. In Tafoya, police mounted a

pole camera across the street from Rafael Tafoya’s house without

first securing a warrant. Id. at 614. The pole camera continuously

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recorded footage of Tafoya’s property—including his backyard,

which was otherwise hidden by a six-foot-high privacy fence—for

over three months. Id. The court held that “police use of the pole

camera to continuously video surveil Tafoya’s fenced-in curtilage

for three months, with the footage stored indefinitely for later re-

view, constituted a warrantless search in violation of the Fourth

Amendment.” Id. at 618. But when doing so, it recognized that “a

person standing on the street could not see into the backyard”—giving

rise to a subjective expectation of privacy. Id. at 622 (emphasis

added). Williamson’s surveilled areas, on the contrary, were visible

by and exposed to the public—providing him no such expectation

of privacy. See United States v. Dennis, 41 F.4th 732, 740–41 (5th Cir.

2022) (explaining that the use of a pole camera was not a search

because “one can see through [the defendant’s] fence and [thus] the

cameras captured what was open to public view from the street”).

Because Williamson’s backyard was open to public view from an

observer standing on the street, we need not—and do not—address

whether the use of a pole camera to record over a privacy fence

into an otherwise enclosed backyard invades a reasonable expecta-

tion of privacy.

Second, the pole cameras’ capacity to record non-stop does

not transform the Fourth Amendment analysis in the manner Wil-

liamson suggests. Nothing in the Constitution forbids the govern-

ment from using technology to conduct lawful investigations more

efficiently. The authorities Williamson cites for support—Justice

Alito’s and Justice Sotomayor’s concurrences in United States v.

Jones, 565 U.S. 400 (2012) and the Supreme Court’s decision in

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18 Opinion of the Court 22-12800

Carpenter v. United States, 585 U.S. 296 (2018)—are wholly con-

sistent with that principle.

The Supreme Court in Jones held that the government’s in-

stallation of a GPS device on a target’s vehicle, and its use of that

device to monitor the vehicle’s movements, constituted a search.

565 U.S. at 404. In reaching that conclusion, the Court relied on a

trespass-based rule. See id. at 409 (“[T]he Katz reasonable-expecta-

tion-of-privacy test has been added to, not substituted for, the com-

mon-law trespassory test.”). Justice Alito agreed with the Court’s

judgment but wrote separately to clarify that he would have es-

chewed the trespass approach and simply asked “whether respond-

ent’s reasonable expectations of privacy were violated by the long-

term monitoring of the movements of the vehicle he drove.” Id. at

419 (Alito, J., concurring). Williamson seizes on this language be-

cause it identifies a durational element to the Fourth Amendment

analysis of surveillance—but he ignores that pole cameras and GPS

trackers are meaningfully different forms of surveillance. For Jus-

tice Alito, the GPS monitoring in Jones was a search because “law

enforcement agents tracked every movement that respondent

made in the vehicle he was driving.” Id. at 430. By contrast, a pole

camera does not track movement. It does not track location. It is

stationary—and therefore does not “follow” a person like a GPS

attached to his vehicle. As such, it is difficult to see why Justice

Alito’s concurrence about GPS devices would extend to an inappo-

site technology like pole cameras.

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Similarly, Justice Sotomayor focused on the “unique attrib-

utes” of GPS surveillance. Id. at 415 (Sotomayor, J., concurring).

“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 associa-

tions.” Id. A pole camera pointed at a house provides virtually none

of this information—and to the extent that it does, it does so at a

level of detail markedly lower than a GPS tracking device.

The Supreme Court’s decision in Carpenter likewise does not

support Williamson’s position. There, the Court held that the gov-

ernment conducts a search under the Fourth Amendment when it

accesses cell phone records that provide a comprehensive chronicle

of the user’s past movements. 585 U.S. at 300. Gesturing toward

Jones, the Court recognized that cell phone tracking “partakes of

many of the qualities of the GPS monitoring we considered in

Jones.” Id. at 309. “Much like GPS tracking of a vehicle, cell phone

location information is detailed, encyclopedic, and effortlessly

compiled.” Id. And as with GPS information, “the time-stamped

data provides an intimate window” into a person’s life. Id. at 311.

According to Williamson, Carpenter demonstrates that mod-

ern technology does not provide law enforcement carte blanche to

ignore the Fourth Amendment. True enough. But as with Jones,

the Carpenter decision concerned a technology that is meaningfully

different than pole cameras. Pole cameras are distinct both in terms

of the information they mine and the degree of intrusion necessary

to do so. Moreover, the Carpenter majority clarified that its decision

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20 Opinion of the Court 22-12800

is “narrow” and, of particular relevance here, does not “call into

question conventional surveillance techniques and tools, such as

security cameras.” Id. at 316. Pole cameras are a conventional sur-

veillance technique very similar to security cameras—and the gov-

ernment has used them for surveillance across the country for dec-

ades. See, e.g., United States v. Bregu, 948 F.3d 408, 411 (1st Cir. 2020)

(noting the use of a pole camera outside a suspect’s residence to

gather evidence); United States v. Christie, 825 F.3d 1048, 1067 (9th

Cir. 2016) (“Before applying for the wiretaps, the government also

installed a pole camera outside the Ministry’s front entrance”);

United States v. Gaskins, 690 F.3d 569, 574 (D.C. Cir. 2012) (noting

the use of a pole camera in a narcotics conspiracy investigation);

United States v. Price, 418 F.3d 771, 781–82 (7th Cir. 2005) (noting

the use of a pole camera in a conspiracy investigation); United States

v. Carraway, 108 F.3d 745, 749 (7th Cir. 1997) (noting the use of a

pole camera in an investigation). Thus, to the extent that Carpenter

is relevant to Williamson’s case, it cuts against him.

Our reasoning accords with the Sixth and Seventh Circuits—

both of which have addressed surveillance in general and pole cam-

eras in particular. In United States v. Houston, 813 F.3d 282 (6th Cir.

2016), the Sixth Circuit evaluated the legality of footage “recorded

over the course of ten weeks by a camera installed on top of a pub-

lic utility pole approximately 200 yards away” from the farm being

observed. Id. at 285. It held that, “[a]lthough this ten-week surveil-

lance was conducted without a warrant, the use of the pole camera

did not violate Houston’s reasonable expectations of privacy be-

cause the camera recorded the same view . . . as that enjoyed by

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22-12800 Opinion of the Court 21

passersby on public roads.” Id. As in Williamson’s case, the officers

“only observed what Houston made public to any person travel-

ing” on the surrounding roads. Id. at 288.

Moreover, the court squarely addressed Williamson’s con-

tention concerning the duration of surveillance: “the length of the

surveillance did not render the use of the pole camera unconstitu-

tional, because the Fourth Amendment does not punish law en-

forcement for using technology to more efficiently conduct their

investigations.” Id. In other words, “[w]hile the . . . agents could

have stationed agents round-the-clock to observe Houston’s farm

in person, the fact that they instead used a camera to conduct the

surveillance does not make the surveillance unconstitutional.” Id.

The Sixth Circuit has since reaffirmed its reasoning. See United

States v. Powell, 847 F.3d 760, 773 (6th Cir. 2017) (holding that the

warrantless surveillance of three buildings through the installation

of video cameras on three public utility poles, for periods of up to

90 days each, did not violate the defendants’ Fourth Amendment

rights); United States v. May-Shaw, 955 F.3d 563, 567 (6th Cir. 2020)

(holding that warrantless, long-term pole camera surveillance of

the defendant’s partially-enclosed carport was not a violation of the

Fourth Amendment—even if the carport constituted the curtilage

of his apartment).

Similarly, in United States v. Tuggle, the Seventh Circuit con-

sidered the government’s warrantless use of three video cameras

affixed to utility poles to monitor Tuggle’s nearby residence. 4

F.4th 505, 511 (7th Cir. 2021). The cameras recorded his property

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22 Opinion of the Court 22-12800

for nearly eighteen months and offered several advantages to the

government’s investigation. Id. While in use, the cameras recorded

around the clock. Id. Rudimentary lighting technology improved

the quality of overnight footage. Id. And agents could remotely

zoom, pan, and tilt the cameras and review footage in real time. Id.

Relying on Carpenter, Tuggle argued that the pole cameras uncon-

stitutionally “captured the whole of [his] movements.” Id. at 524

(citation and internal marks omitted).

The Seventh Circuit rejected his argument: “the stationary

cameras placed around Tuggle’s house captured an important

sliver of Tuggle’s life, but they did not paint the type of exhaustive

picture of his every movement that the Supreme Court has

frowned upon.” Id. “If the facts and concurrences of Jones and Car-

penter set the benchmarks, then the surveillance in this case pales

in comparison.” Id. It recognized, with Carpenter in mind, that

whether pole cameras are the same as security cameras is irrelevant

“because the cameras here would clearly qualify as a conventional

surveillance technique[].” Id. at 526 (citation and internal marks

omitted). Accordingly, the Seventh Circuit concluded that the use

of pole cameras—even the prolonged use—does not constitute a

search under the Fourth Amendment as a matter of law. And in

doing so, it noted a compelling legal reality: “no federal circuit

court has found a Fourth Amendment search based on long-term

use of pole cameras on public property to view plainly visible areas

of a person’s home.” Id. at 522. We decline to alter that status quo.

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22-12800 Opinion of the Court 23

Williamson cites one court that has held otherwise, but we

are not persuaded. In State v. Jones, 903 N.W.2d 101 (S.D. 2017), the

Supreme Court of South Dakota addressed law enforcement’s war-

rantless installation of a pole camera on a public streetlight to rec-

ord Jones’s activities. Id. at 103. Officers used the camera’s two

months of footage to obtain a search warrant for his home. Id.

Pointing to the “amassed nature” of the surveillance, the court held

that officers violated Jones’s reasonable expectation of privacy. Id.

at 111–13. We cannot agree with that reasoning. State v. Jones was

decided before Carpenter and therefore did not have the benefit of

Carpenter’s clarification that “conventional surveillance techniques

and tools, such as security cameras,” are not searches just because

they record large amounts of data. Carpenter, 585 U.S. at 316.

Having addressed the pole camera issue, we also believe that

Williamson’s other challenge to the home warrant—that its sup-

porting affidavits relied on stale information—fails as well. Accord-

ing to Williamson, law enforcement relied on the June 11th con-

trolled buy to support the search warrant for his home. But that

controlled buy, he recounts, only turned up a personal-use amount

of marijuana—and thereby failed to establish probable cause for a

massive drug operation. Williamson cites United States v. Under-

wood, which held that a detective’s observation of a personal-use

amount of marijuana at the defendant’s home failed to support the

conclusion that he was a courier for an ecstasy trafficking organi-

zation or that evidence of such trafficking would be found at his

home. 725 F.3d 1076, 1082–83 (9th Cir. 2013).

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24 Opinion of the Court 22-12800

Williamson’s arguments on this score are unpersuasive for

at least two reasons.

First, Williamson overlooks the significance of the “per-

sonal-use amount of marijuana” in Underwood. Here, Williamson

sold heroin, not marijuana. And he did not merely have a personal-

use amount in his home—he sold a personal-use amount. We have

recognized that drug trafficking activities are “inherently pro-

tracted and continuous.” United States v. Magluta, 198 F.3d 1265

(11th Cir. 1999) (citation and internal marks omitted), opinion va-

cated in part on other grounds on reh’g, 203 F.3d 1304 (11th Cir. 2000).

Because Williamson was selling personal-use amounts out of his

home, there was good reason to believe that some stash of drugs

would be present at Williamson’s home. Unlike Underwood, where

a detective merely observed a zip-lock bag containing a personal-

use amount of marijuana, law enforcement here reasonably under-

stood Williamson—having surveilled him—to be selling drugs sys-

tematically from a larger stash.

Second, even if the controlled buy produced only stale infor-

mation, the district court reasonably found that subsequent trans-

actions updated the evidence obtained through that buy, indicating

that drugs were still likely to be at the house. For example, the af-

fidavit provides evidence that Williamson was engaged in drug-re-

lated transactions with at least four others during the period be-

tween the controlled purchase and the application for the warrant.

So, in sum, the controlled buy was more telling than Williamson

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22-12800 Opinion of the Court 25

admits, and even if the evidence from it was thrown out altogether,

subsequent transactions would have supported probable cause.

2.

We turn now to the apartment warrant. The exclusionary

rule “generally prohibits the government from relying on evidence

obtained in violation of the Fourth Amendment.” United States v.

McCall, 84 F.4th 1317, 1323 (11th Cir. 2023), cert. denied, 144 S. Ct.

1042 (2024). Consistent with the rule’s objective of future deter-

rence, a “good faith exception” applies even to close calls and

threshold cases. Id. at 1323–25 (citing Messerschmidt v. Millender, 565

U.S. 535, 556 (2012)). To establish that the good faith exception to

the exclusionary rule does not apply to the apartment warrant,

Williamson must prove that the warrant is “based on an affidavit

‘so lacking in indicia of probable cause as to render official belief in

its existence entirely unreasonable.’” Id. at 1323 (quoting United

States v. Leon, 468 U.S. 897, 923 (1984)). In making that determina-

tion, “[w]e look only to the face” of the affidavit. Id. at 1325 (citing

United States v. Robinson, 336 F.3d 1293, 1296 (11th Cir. 2003)). The

affidavit must be so clearly insufficient “that it provided ‘no hint’ as

to why police believed they would find incriminating evidence.”

United States v. Morales, 987 F.3d 966, 976 (11th Cir. 2021).

There is simply no plausible argument that the information

or affidavit supporting the apartment warrant is excludable. “There

was no reason to think that the judge’s approval of the warrant was

unusual or suspect.” McCall, 84 F.4th at 1329. No one has alleged

that any affiant provided information that he knew was false. Nor

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26 Opinion of the Court 22-12800

was any of the information provided unclear or insufficiently par-

ticular. And even taking the warrant’s alleged deficiencies as true,

none of them would require suppression under the foregoing

standards. See id. at 1328 (applying the good faith exception to an

overbroad warrant because, despite its overbroadness, it was not

so “facially deficient” that officers could not have reasonably relied

on it when executing their search).

Moreover, there are several reasons why a reasonable officer

could have relied on the warrant. First, the warrant sought non-

perishable items typically held for long periods of time. For exam-

ple, the supporting affidavit contained evidence that Williamson

stored money and personalized, expensive jewelry in the apart-

ment—specifically, Williamson’s $30,000 gold necklace and

“RAW” pendant. A reasonable officer could have expected that

Williamson would still possess the necklace two years later. Sec-

ond, as Agent Gerhardt detailed in the affidavit, Williamson did not

appear to have any legitimate source of income. Nevertheless,

large and unexplained sums of money moved through affiliated

bank accounts—and Williamson made tens of thousands of dollars’

worth of jewelry purchases in cash. Lastly, the objective reasona-

bleness of the officers’ reliance on the warrant is bolstered by the

extensive background information provided by the confidential

source—information about Williamson’s involvement with drug

trafficking, corroborated and refreshed by the confidential source’s

controlled purchase of heroin. For the foregoing reasons, we hold

that the good faith exception applies to the apartment warrant.

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22-12800 Opinion of the Court 27

B.

We now address the defendants’ various sufficiency chal-

lenges. Each defendant challenges the sufficiency of the evidence

supporting his conspiracy conviction. Williamson further chal-

lenges the sufficiency of the evidence supporting his convictions for

possession of a firearm in relation to a drug trafficking crime, pos-

session of a firearm in furtherance of a drug trafficking crime, en-

gaging in a continuing criminal enterprise, and the use of a com-

munication facility to commit a drug trafficking crime.

We review the sufficiency of the evidence to support a con-

viction de novo, viewing the evidence in the light most favorable to

the government and drawing all reasonable inferences and credi-

bility choices in favor of the jury’s verdict. United States v. Rodriguez,

218 F.3d 1243, 1244 (11th Cir. 2000).

1.

We begin with each defendant’s challenge to the sufficiency

of the evidence supporting his conspiracy conviction. To sustain a

conviction under 21 U.S.C. Section 846, the government must have

proven beyond a reasonable doubt that (1) an illegal agreement ex-

isted to possess with the intent to distribute a controlled substance;

(2) each defendant knew of the agreement; and (3) each defendant

knowingly and voluntarily joined the agreement. United States v.

Charles, 313 F.3d 1278, 1284 (11th Cir. 2002). It did not have to

prove that each defendant knew every detail or participated in

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28 Opinion of the Court 22-12800

every stage of the conspiracy—only that they knew its essential na-

ture. United States v. Morel, 63 F.4th 913, 919 (11th Cir. 2023).

a.

Williamson argues that the evidence supported only a

buyer-seller relationship between him and others. We are unper-

suaded.

The government presented evidence establishing that Wil-

liamson received kilos of cocaine that he stored at his home, that

he would obtain a kilo or two of heroin each month for resale, and

that he had suitcases full of marijuana stored at his apartment.

Three individuals—Errick Daniel, Derrick Bland, and Leanthony

Gillins—stayed at Williamson’s house and sold drugs he supplied.

Isiah Thomas testified that he dealt drugs with Williamson for sev-

eral years. Virtually all of this evidence was consistent with—and

corroborated by—other testimony, video evidence, and inter-

cepted phone calls. Based on the quantity of drugs and the fre-

quency with which they were sold, as well as the context surround-

ing Williamson’s routine interactions with others, there is simply

no plausible argument that the government failed to carry its bur-

den on Williamson’s conspiracy charge. See United States v. Gomez,

164 F.3d 1354, 1356 (11th Cir. 1999) (recognizing that evidence of a

conspiracy, as opposed to a buyer-seller relationship, may include

transactions involving large quantities of drugs and prolonged co-

operation between the parties); United States v. Gallardo, 977 F.3d

1126, 1140 (11th Cir. 2020) (explaining that circumstantial evidence

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22-12800 Opinion of the Court 29

of an understanding between persons to engage in illicit conduct

may serve as proof of the existence of an agreement).

b.

Taylor, like Williamson, argues that the government’s evi-

dence merely suggests a buyer-seller relationship between himself

and others. And he contends that the government offered no testi-

mony that he ever talked to Williamson or dealt with Williamson.

We reject both arguments.

First, as to Taylor’s buyer-seller argument, Kenneth Johnson

testified that he and Taylor began dealing drugs as early as 2012,

“split up for some years,” and resumed in 2018. Taylor would sup-

ply Johnson with meth and heroin that Johnson would then sell to

others. Johnson testified that he once saw Taylor with “like a

pound” of meth. Isiah Thomas testified that he sold Taylor heroin.

And both Johnson and Thomas’s testimonies were corroborated by

either phone calls or text messages. Recognizing that “repeated

transactions buying and selling large quantities of illegal drugs” is

“sufficient evidence that the participants were involved in a con-

spiracy to distribute those drugs in the market,” we reject Taylor’s

arguments for much the same reasons we rejected Williamson’s

arguments. United States v. Brown, 587 F.3d 1082, 1089 (11th Cir.

2009).

Second, as to whether Taylor ever talked directly to Wil-

liamson, “[i]t is irrelevant that particular conspirators may not have

known other conspirators or may not have participated in every

stage of the conspiracy; all that the government must prove is an

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30 Opinion of the Court 22-12800

agreement or common purpose to violate the law and intentional

joining in this goal by coconspirators.” United States v. Richardson,

532 F.3d 1279, 1284 (11th Cir. 2008) (citation and internal marks

omitted). The government proved “an agreement or common pur-

pose” through the evidence presented above.

c.

Gregory argues there was no credible evidence proving he

was aware of any conspiracy, entered into any agreement to com-

mit a crime, or knowingly and voluntarily joined any conspiracy.

We disagree.

As we have explained, a conspiracy can be found if the evi-

dence allows an inference that the buyer and seller knew the drugs

were for distribution. United States v. Achey, 943 F.3d 909, 917 (11th

Cir. 2019). Here, the evidence established that Gregory dealt drugs

with Isaac Robinson who, in turn, was a source for Williamson,

selling him both meth and marijuana. It also established that Greg-

ory sold kilos of meth to Demarcus Whitt routinely over several

months. Later, Whitt began to supply drugs to Gregory—a rela-

tionship that, at one point, resulted in the two meeting so that

Gregory could pay Whitt about $30,000 for meth. The amount of

drugs exchanged, the regularity of those exchanges, and the corre-

sponding prices all clearly evince knowledge of distribution. See

Gomez, 164 F.3d at 1356; Brown, 587 F.3d at 1089. The government

carried its burden as to Gregory’s conspiracy charge.

d.

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22-12800 Opinion of the Court 31

Lastly, Archie argues there is no credible evidence he knew

of any conspiracy, entered into any agreement to commit a crime,

or knowingly and voluntarily joined any conspiracy. Pointing out

that the government presented testimony from “a convicted felon

and co-conspirator” who was offered “leniency in sentencing,”

Archie’s core contention seems to be that Isiah Thomas’s testi-

mony was unreliable and untrustworthy.

However, “[c]redibility questions are the exclusive province

of the jury, and on sufficiency review we must assume that they

were answered in a manner that supports the verdict . . . unless

witness testimony is ‘unbelievable’ as a matter of law.” United States

v. Downs, 61 F.4th 1306, 1316 (11th Cir.), cert. denied, 144 S. Ct. 181

(2023) (internal citations omitted). Thomas, to whom Williamson

was a primary source, testified that Williamson supplied Archie

with re-sale quantities of marijuana—“about three pounds” “once

or twice a week.” Thomas observed these transactions and testified

that they occurred over the course of about two years. Particularly

given that Archie was in possession of 74.6 grams of marijuana, a

handgun, and a digital scale when arrested, Thomas’s testimony is

not “unbelievable.” Viewing the evidence in the light most favora-

ble to the government and drawing all reasonable inferences and

credibility choices in favor of the jury’s verdict, we reject Archie’s

argument.

2.

We now address Williamson’s remaining sufficiency chal-

lenges to four of his other convictions.

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32 Opinion of the Court 22-12800

The first of these convictions, using or carrying a firearm

during and “in relation to” a drug trafficking crime (Count 1 in 2:20-

cr-405-ACA-JHE), arises from the fact that Williamson was in pos-

session of two firearms—one in his car and one on his person, along

with marijuana and cash—when he was arrested. To sustain this

conviction, the government must have proven that Williamson

“(1) knowingly (2) possessed a firearm (3) during and in relation to

a drug trafficking crime or a crime of violence.” United States v. Is-

nadin, 742 F.3d 1278, 1307 (11th Cir. 2014). Williamson seemingly

concedes that, at the time he was arrested, he was knowingly in

possession of firearms. He argues, however, that the government

presented no evidence linking those firearms to the furtherance of

a drug trafficking offense at the time of his possession.

But Williamson mischaracterizes the government’s burden.

This conviction relies on the “in relation to” language of Section

924(c)—not the “in furtherance of” language. For the former, a fire-

arm must merely facilitate, or have the potential of facilitating, the

drug trafficking offense. Smith v. United States, 508 U.S. 223, 238

(1993). In determining whether a firearm has that potential, we

consider the “proximity of the firearm to the drugs or drug profits”

and “the time and circumstances under which the firearm is

found.” United States v. Mercer, 541 F.3d 1070, 1077 (11th Cir. 2008).

Given that Williamson was in possession of the two firearms and

marijuana, $14,000 in cash, and additional magazines when he was

arrested, it was reasonable for the jury to conclude that Williamson

possessed the firearms “in relation to” his drug crimes.

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22-12800 Opinion of the Court 33

The second of these convictions—possession of a firearm “in

furtherance of” a drug trafficking crime (Count 7)—arises from the

fact that firearms were recovered from Williamson’s apartment

along with drugs and cash. To sustain this conviction, the govern-

ment must have proven “that the firearm helped, furthered, pro-

moted, or advanced the drug trafficking.” United States v. Timmons,

283 F.3d 1246, 1252 (11th Cir. 2002). Williamson contends that the

government presented no evidence that the firearms recovered

from his apartment were connected to any drug operation or that

he actively or constructively possessed them.

Williamson’s objections are foreclosed by our precedents. In

Mercer, we held that, because a firearm “was readily available in the

same room where a jury could infer drugs were being packaged for

sale and available in the immediate vicinity of items commonly

used in a drug operation,” the evidence “was sufficient for a rea-

sonable jury to find that Defendant possessed the firearm ‘in fur-

therance of’ a drug trafficking crime.” 541 F.3d at 1077; see also

United States v. Suarez, 313 F.3d 1287, 1293 (11th Cir. 2002) (explain-

ing that a defendant’s possession of firearms was “in furtherance

of” a drug trafficking conspiracy where they were accessible across

his home, which was the main initial storage point for drugs

brought into the country). Here, the firearms at issue were found

in Williamson’s apartment—along with a substantial amount of

marijuana, 135 grams of fentanyl and heroin mixed, $95,000 in

cash, several other firearms, and 1,400 rounds of ammunition. We

conclude that the government carried its burden as to this convic-

tion.

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34 Opinion of the Court 22-12800

The third of these convictions—engaging in a continuing

criminal enterprise (Count 1)—arises out of Williamson’s extensive

involvement in drug trafficking. To sustain this conviction, the

government must have proven: (1) a felony violation of the federal

narcotics laws (2) as part of a continuing series of violations (3) in

concert with five or more persons (4) for whom Williamson was

an organizer or supervisor (5) from which he derives substantial

income or resources. United States v. Witek, 61 F.3d 819, 821–22

(11th Cir. 1995). “[A]n organizer does not necessarily control those

people he organizes, but simply arranges their activities into an or-

derly operation.” Id. at 823. Williamson argues that we cannot (1)

say which five people the jury relied upon in concluding “that [he]

managed, directed, or organized them,” or (2) rely “on the uncor-

roborated testimony” of Isiah Thomas in assessing the evidence.

We disagree.

First, as to Williamson’s argument about which five people

he managed, directed, or organized, we have never held that a jury

must unanimously agree as to the identities of the co-conspirators.

See United States v. Raffone, 693 F.2d 1343, 1348 (11th Cir. 1982) (rec-

ognizing that the “independent efforts of this court” have “revealed

no such authority” that “the jury must unanimously agree as to the

identities of the co-conspirator(s)” in 21 U.S.C. Section 848

charges). On the contrary, we have recognized that, “[w]hile the

jury must reach a consensus on the fact that there were five or

more underlings, which is an essential element of the CCE [Con-

tinuing Criminal Enterprise] offense, there is no logical reason why

there must be unanimity on the identities of these underlings.”

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22-12800 Opinion of the Court 35

United States v. Moorman, 944 F.2d 801, 803 (11th Cir. 1991) (quoting

United States v. Jackson, 879 F.2d 85, 88 (3rd Cir. 1989)); see also Rich-

ardson v. United States, 526 U.S. 813, 824 (1999) (assuming, without

deciding, the government’s argument that a jury need not unani-

mously agree about the five or more persons’ identities). We do

not hold differently today. The government carried its burden as

to this conviction.

Second, as to the credibility of Thomas’s testimony, we have

explained that such credibility determinations are “the ‘exclusive

province’ of the jury ‘and the court of appeals may not revisit this

question unless it is incredible as a matter of law.’” United States v.

Hano, 922 F.3d 1272, 1289 (11th Cir. 2019) (quoting United States v.

Feliciano, 761 F.3d 1202, 1206 (11th Cir. 2014)). The government

does not concede that Thomas’s testimony was uncorroborated,

but even assuming it was, “uncorroborated testimony of an accom-

plice may support a conviction if it is not incredible or otherwise

unsubstantial on its face.” Tillery v. United States, 411 F.2d 644, 647

(5th Cir. 1969). Given the formidable evidence against Williamson,

nothing in Thomas’s testimony is “incredible.” We reject William-

son’s argument.

The last of these convictions—use of a communication facil-

ity to facilitate a drug trafficking crime (Counts 34, 35, 39, 40, and

41)—arises from Williamson’s use of a telephone to facilitate drug

trafficking. To sustain it, the government must have proven that

he knowingly and intentionally used a communication facility—

here, a telephone—to facilitate the commission of a drug

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36 Opinion of the Court 22-12800

trafficking crime. United States v. Mertilus, 111 F.3d 870, 872 (11th

Cir. 1997). To prove facilitation, it must have established that the

telephone call comes within the common meaning of facilitate—to

make easier or less difficult, or to assist or aid. United States v. Ori-

huela, 320 F.3d 1302, 1305 n.9 (11th Cir. 2003). Williamson, con-

victed of five separate violations, challenges all five as improper be-

cause “[t]he recordings—and the transcriptions—do not speak for

themselves.” He contends that, because the statements were

“vague,” the government’s evidentiary showing was insufficient.

We are unpersuaded.

As discussed above, the government provided recordings of

each telephone conversation. Four of the conversations directly

pertain to drugs: Williamson checks in with Darrius Johnson as to

the quantity of drugs Johnson currently has; confirms with

Leanthony Gillins that Williamson is “still gonna bring it”; sets up

a drug deal with Isiah Thomas; and discusses the quality of two

different strains of marijuana with Tevion Poole. The remaining

conversation involves Williamson and Johnson discussing the fact

that Johnson had been stopped by police and his truck had been

searched soon after leaving Williamson’s house. Given the nature

of Williamson’s drug trafficking offenses and the fact that those he

spoke to were also involved, a reasonable jury could have con-

cluded that each call facilitated either a particular narcotics offense

or the overall conspiracy—thereby satisfying the government’s

burden.

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22-12800 Opinion of the Court 37

Even though we conclude that there was sufficient evidence

to convict Williamson for each count, we must vacate William-

son’s conspiracy charge (Count 2) because it is a lesser-included of-

fense of the CCE charge (Count 1). See Rutledge v. United States, 517

U.S. 292, 307 (1996) (“A guilty verdict on a § 848 charge necessarily

includes a finding that the defendant also participated in a conspir-

acy violative of § 846; conspiracy is therefore a lesser included of-

fense of CCE.”). The government concedes as much. Having now

found that the evidence was sufficient to sustain both, we vacate

Williamson’s conspiracy conviction. Resentencing on the basis of

this vacatur is nevertheless inappropriate because the district court

sentenced Williamson to life independently and individually “as to

Counts 1, 2, and 5,” Count 2 did not otherwise impact or aggravate

the other counts for the purposes of sentencing, and the district

court was made aware—at sentencing—that Count 2 is a lesser-in-

cluded offense of Count 1 and “groups in.” Accordingly, we vacate

Williamson’s conspiracy conviction as duplicative of his CCE con-

viction, but we decline to remand for resentencing.

C.

We now address three arguments about alleged issues at

trial—one from Archie and two from Williamson. Archie argues

that the district court erred when it allowed testimony consisting

of an improper opinion from Agent Gerhardt. Williamson argues

that, as to his continuing criminal enterprise charge, the district

court erred by not instructing the jury that it must agree about

which five individuals Williamson organized and that “a mere

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38 Opinion of the Court 22-12800

buyer-seller relationship” does not satisfy the charge’s require-

ments.

1.

We begin with Archie. Agent Gerhardt testified two times:

once as an expert and once as a fact witness. Archie objects to a

portion of Gerhardt’s testimony as a fact witness that concerned

Gerhardt’s interpretation of the phrase “a cup of ice.” Specifically,

Gerhardt testified that when Archie used the phrase “a cup of ice”

on a recorded phone call, he was referring to “one ounce or one-

half ounce quantities of methamphetamine.” Archie argues that an

agent testifying as a fact witness “may not tell the jury what they

should believe about ordinary language captured by virtue of a tel-

ephone interception.” And he contends that “the agent went be-

yond” what was being said and “testified to his interpretation of the

entirety of the conversation in the phone call.” We reject Archie’s

argument.

Even if Gerhardt’s analysis was better suited for his testi-

mony as an expert, “[a]n evidentiary error is harmless unless there

is a reasonable likelihood that [it] affected the defendant’s substan-

tial rights.” United States v. Frediani, 790 F.3d 1196, 1202 (11th Cir.

2015) (citation and internal marks omitted). There is no possibility

that this alleged error affected Archie’s substantial rights because

the jury only attributed the distribution of marijuana—not meth—

to him for purposes of the conspiracy conviction. As such, Ger-

hardt’s testimony concerning meth could not have had “a substan-

tial influence on the outcome” and therefore does not warrant

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22-12800 Opinion of the Court 39

reversal. See United States v. Hands, 184 F.3d 1322, 1329 (11th Cir.),

corrected, 194 F.3d 1186 (11th Cir. 1999) (“We need not reverse [the]

conviction if the error had no substantial influence on the outcome

and sufficient evidence uninfected by error supports the verdict.”)

(citation and internal marks omitted).

2.

We turn now to Williamson’s two instructional arguments.

“We review a district court’s jury instructions for an abuse of dis-

cretion.” United States v. Williams, 541 F.3d 1087, 1089 (11th Cir.

2008). “Error in jury instructions does not constitute grounds for

reversal unless there is a reasonable likelihood that it affected the

defendant’s substantial rights.” United States v. Wright, 392 F.3d

1269, 1277 (11th Cir. 2004). “Defendants are not entitled to the jury

instructions using the precise language they request where the dis-

trict court’s ‘charge adequately addresses the substance of the de-

fendant’s request.’” United States v. Horner, 853 F.3d 1201, 1210

(11th Cir. 2017) (quoting United States v. Silverman, 745 F.2d 1386,

1396 (11th Cir. 1984)).

Williamson’s unanimity argument—that the district court

should have instructed the jury that it must agree about which five

individuals Williamson organized—is foreclosed by our prece-

dents. See, e.g., United States v. Curry, 902 F.2d 912, 915 (11th Cir.

1990) (recognizing that there is no plain error when a district court

does not instruct the jury as to unanimity regarding the supervision

requirement in a CCE case); United States v. Raffone, 693 F.2d 1343,

1348 (11th Cir. 1982) (same); United States v. Moorman, 944 F.2d 801,

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40 Opinion of the Court 22-12800

803 (11th Cir. 1991) (“While the jury must reach a consensus on the

fact that there were five or more underlings, which is an essential

element of the CCE offense, there is no logical reason why there

must be unanimity on the identities of these underlings.”) (citation

omitted). Williamson offers no persuasive argument as to why we

should change course now.

Williamson’s remaining argument—that the jury should

have been instructed that a “mere buyer-seller relationship will not

satisfy” the requirements of the continuing criminal enterprise

charge—falls short as well. The district court’s decision not to give

the requested jury instruction did not “seriously impair[] the de-

fendant’s ability to present an effective defense.” United States v.

Ndiaye, 434 F.3d 1270, 1293 (11th Cir. 2006). In defining the charge

at trial, the district court explained that the government must

prove a “continuing series of violations with at least five other peo-

ple” and that Williamson “was an organizer, supervisor, or man-

ager and either organized or directed the activities of the others.”

Being “an organizer, supervisor, or manager” excludes—by its

plain text—a mere buyer-seller relationship. When one merely

buys or sells something to someone, he is not organizing, supervis-

ing, or managing that person. Moreover, his proposed jury instruc-

tion—which neither defined buyer-seller relationships and mana-

gerial ones nor clarified distinctions between them—would not

have fixed the alleged problem. The district court did not abuse its

discretion in concluding that the pattern jury instruction encom-

passed this issue.

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22-12800 Opinion of the Court 41

D.

Lastly, we address Gregory’s sentencing. Although Gregory

argues about the reasonableness of his sentence, our review of the

record conclusively demonstrates that Gregory was sentenced

above the statutory maximum authorized by the jury’s verdict. A

district court commits plain error by sentencing above the statu-

tory maximum. See United States v. Sanchez, 586 F.3d 918, 930 (11th

Cir. 2009). The quantity of drugs found by the jury subjected Greg-

ory to the penalty provisions of 21 U.S.C. § 841(b)(1)(C). Even with

his prior conviction enhancement under 21 U.S.C. § 851, the gov-

ernment concedes that the applicable statutory maximum sentence

was 30 years. Accordingly, we vacate Gregory’s sentence in its en-

tirety and remand for resentencing. See United States v. Eldick, 393

F.3d 1354, 1354 (11th Cir. 2004) (explaining that, generally speak-

ing, “[a] criminal sentence is a package of sanctions”); United States

v. Tamayo, 80 F.3d 1514, 1520 n.7 (11th Cir. 1996) (“[O]ur court has

been explicit when it is vacating an entire original sentencing pack-

age as opposed to remand for resentencing on a single issue.”).

Gregory’s alternative arguments about the reasonableness of his

sentence are moot.

III.

We AFFIRM each conviction, except Williamson’s conspir-

acy conviction, which we VACATE, and we AFFIRM each sen-

tence, except Gregory’s, which we VACATE in its entirety and

REMAND for resentencing, consistent with this opinion.

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22-12800 JORDAN, J., Concurring 1

JORDAN, Circuit Judge, Concurring in Part and Concurring in the

Judgment:

I join the majority’s opinion as to all but the Introduction

and Part II.A.1. As to Part II.A.1, I concur in the judgment. I would

leave the constitutionality of the pole camera for another day and

would instead reject Mr. Williamson’s Fourth Amendment chal-

lenge to the search warrant based on the good-faith exception to

the exclusionary rule.

A “warrantless search . . . is reasonable only if it falls within

a recognized exception.” Missouri v. Neely, 569 U.S. 141, 148 (2013).

See also Fuqua v. Turner, 996 F.3d 1140, 1151 (11th Cir. 2021) (explain-

ing that, as a general matter, “[w]arrantless searches are per se un-

reasonable”) (internal quotation marks omitted) (quoting Katz v.

United States, 389 U.S. 347, 357 (1967)). But even when government

officials violate the Fourth Amendment, evidence will not be sup-

pressed if the good-faith exception to the exclusionary rule applies.

See Davis v. United States, 564 U.S. 229, 238 (2011) (noting that “when

the police act with an objectively reasonable good-faith belief that

their conduct is lawful . . . the deterrence rationale [of the exclu-

sionary rule] loses much of its force and exclusion cannot pay its

way”) (citation and internal marks omitted); United States v. Morales,

987 F.3d 966, 973 (11th Cir. 2021) (“[U]nder the good faith exception

to the exclusionary rule, courts decline to suppress evidence when

suppression would not further the rule’s deterrent purpose.”).

The “good-faith inquiry is confined to the objectively ascer-

tainable question whether a reasonably well trained officer would

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2 JORDAN, J., Concurring 22-12800

have known that the search was illegal in light of all the circum-

stances.” Herring v. United States, 555 U.S. 135, 145 (2009) (citation

and internal quotation marks omitted). We have applied the good-

faith exception to “close calls and threshold cases.” United States v.

McCall, 84 F.4th 1317, 1325 (11th Cir. 2023). See, e.g., United States v.

Mapson, 96 F.4th 1323, 1334–35 (11th Cir. 2024) (applying the good-

faith exception to the warrantless access of automated license plate

reader databases because at the time of the conduct binding circuit

precedent—later abrogated by United States v. Carpenter, 585 U.S.

296 (2018)—authorized an officer to obtain a person’s cell-site loca-

tion data without a warrant).

Applying the good-faith exception here, an officer in this cir-

cuit could hold an objectively reasonable belief that the warrantless

installation of pole cameras in a public space and directed at a pub-

lic-facing property for any period of time would not violate the

Fourth Amendment. First, our cases have not addressed the con-

stitutionality of pole cameras. Second, the state and federal courts

that have addressed this issue are divided. The Sixth, Seventh, and

Tenth Circuits have found no Fourth Amendment violation when

pole cameras are used without a warrant. See, e.g., United States v.

House, 120 F.4th 1313, 1316–18 (7th Cir. 2024); United States v. Hay,

95 F.4th 1304, 1313–18 (10th Cir. 2024); United States v. May-Shaw,

955 F.3d 563, 567–69 (6th Cir. 2020). The First Circuit, however,

split 3-3 on the issue with three judges finding a Fourth Amend-

ment violation (but applying the good-faith exception) and three

others coming to the opposite conclusion. See United States v.

Moore-Bush, 36 F.4th 320 (1st Cir. 2022) (en banc) (per curiam). And

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22-12800 JORDAN, J., Concurring 3

some state supreme courts have found a Fourth Amendment vio-

lation. See People v. Tafoya, 494 P.3d 613, 622–23 (Colo. 2021); Com-

monwealth v. Mora, 150 N.E.3d 297, 308–13 (Mass. 2020).

A pole camera placed on the corner of a public commercial

intersection in a large city may not trigger Fourth Amendment pro-

tections. But the Fourth Amendment might be implicated if such

a camera records what goes on around a home for a long period of

time. See, e.g., Moore-Bush, 36 F.4th at 336 (Barron, C.J., concurring)

(“No casual observer who is merely passing by can observe (let

alone instantly recall and present for others to observe) the aggre-

gate of the months of moments between relatives, spouses, part-

ners, and friends that uniquely occur in front of one’s home.”);

United States v. Cuevas-Sanchez, 821 F.2d 248, 251 (5th Cir. 1987)

(holding that the use of a pole camera, which overlooked a 10-foot

fence and surveilled the backyard of the defendant’s residence for

a period of 55 days, constituted a Fourth Amendment search: “[A]

camera monitoring all of a person’s backyard activities . . . provokes

an immediate negative visceral reaction: indiscriminate video sur-

veillance raises the spectre of the Orwellian state. Here . . . the gov-

ernment’s intrusion is not minimal. It is not a one-time overhead

flight or a glance over the fence by a passer-by. Here the govern-

ment placed a video camera that allowed them to record all activity

in Cuevas’s backyard.”) (footnote omitted).

The majority, citing the Sixth Circuit’s decision in United

States v. Houston, 813 F.3d 282, 288 (6th Cir. 2016), reasons that the

concern about long-term surveillance is not of constitutional

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4 JORDAN, J., Concurring 22-12800

magnitude here. As it sees things, the government could have sta-

tioned agents around the clock to observe Mr. Williamson’s home,

and nothing in the Fourth Amendment prevents the government

from using modern technology to carry out its investigations more

efficiently.

I would urge caution before assuming that the Fourth

Amendment’s public view doctrine, see California v. Ciaraolo, 476

U.S. 207, 213–14 (1986), constitutionally immunizes pole cameras

regardless of the length of time they record nearby human activi-

ties. Not too long ago, we applied another long-standing Fourth

Amendment doctrine (the third-party doctrine) to reject a claim by

a defendant that the government had unlawfully obtained his cell-

site location information from a wireless carrier without a warrant.

See United States v. Davis, 785 F.3d 498, 511–13 (11th Cir. 2015) (en

banc). Shortly thereafter, however, the Supreme Court rejected

our approach and our conclusion. It declined to apply the third-

party doctrine and held that the acquisition of such information

constituted a search under the Fourth Amendment, thus requiring

a warrant. See Carpenter, 585 U.S. at 309–16. We simply do not

know, and cannot accurately predict, how the Supreme Court will

deal with the use of long-term pole cameras (or other similar means

of video surveillance) and their impact on privacy, particularly in

light of the current debate about the so-called “mosaic” theory of

the Fourth Amendment. See, e.g., Orin Kerr, The Mosaic Theory of

the Fourth Amendment, 111 Mich. L. Rev. 311, 346–52 (2012) (argu-

ing against the theory).

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22-12800 JORDAN, J., Concurring 5

Maybe the Supreme Court will conclude, as some have sug-

gested, that current Fourth Amendment doctrine is simply not

equipped to deal with the challenges of long-term surveillance in

the digital age and will announce a new paradigm. Cf. Matthew

Tokson, Telephone Pole Cameras Under Fourth Amendment Law, 83

Ohio St. L.J. 977, 1001 (2022) (asserting that “Katz’s usefulness as a

forward-looking test, at least for difficult questions, is negligible,”

but positing that the “Carpenter test is a real standard, with teeth”).

Time will tell.