[DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                         ________________________           FILED
                                                   U.S. COURT OF APPEALS
                                No. 10-10300         ELEVENTH CIRCUIT
                            Non-Argument Calendar      AUGUST 31, 2010
                          ________________________        JOHN LEY
                                                           CLERK
                  D.C. Docket No. 1:08-cr-00171-RWS-RGV-1

UNITED STATES OF AMERICA,

                                                  lllllllllllllllllllllPlaintiff-Appellee,

                                      versus

MESSIAH GREEN,

                                               lllllllllllllllllllllDefendant-Appellant.

                          ________________________

                   Appeal from the United States District Court
                      for the Northern District of Georgia
                         ________________________

                                (August 31, 2010)

Before EDMONDSON, BARKETT and MARTIN, Circuit Judges.

PER CURIAM:

      Messiah Green appeals his convictions, and 241-month total sentence, for

armed bank robbery, in violation of 18 U.S.C. § 2113(a), (d) (Count 1), and
possession of a firearm during a crime of violence, in violation of 18 U.S.C.

§ 924(c)(1)(A)(iii) (Count 2).

       Green raises two issues on appeal. First, he appeals his convictions, arguing

that the district court violated his Sixth Amendment right to confront witnesses

against him when it admitted the cell phone records and cell tower location

information from Green’s cell phone on the day of the robbery, which it had

subpoenaed from Metro PCS into evidence. He contends that, because the records

were testimonial for purposes of the Sixth Amendment’s Confrontation Clause, he

was entitled to cross-examine a Metro PCS employee at trial. 1 Second, Green

argues that his sentence for Count 1 was procedurally unreasonable because the

district court erroneously found that he organized the robbery, and thus, was

subject to a two-level enhancement pursuant to U.S.S.G. § 3B1.1(c).

                            I. Admission of Cell Phone Records

       We review a district court’s evidentiary rulings for abuse of discretion, and

questions of whether a hearsay statement is “testimonial” for purposes of the Sixth

Amendment de novo. United States v. Caraballo, 

, 1226 (11th Cir.

2010).


       1
          Although a Metro PCS employee was not available to testify at trial, the records were
certified as accurate, and an expert witness testified, and was available for cross-examination, as
to the meaning of the documents.

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      The Confrontation Clause of the Sixth Amendment provides that, “[i]n all

criminal prosecutions, the accused shall enjoy the right . . . to be confronted with

witnesses against him.” U.S. Const. amend. VI. The Confrontation Clause bars

the admission of hearsay evidence that is “testimonial” unless the witness is

unavailable and the defendant had a prior opportunity for cross-examination.

Crawford v. Washington, 

, 68, 

, 1374, 

(2004). “Testimonial” statements are typically “solemn declaration[s] or

affirmation[s] made for the purpose of establishing or proving some fact,” and

may include “material such as affidavits, custodial examinations, prior testimony

that the defendant was unable to cross-examine, or similar pretrial statements that

declarants would reasonably expect to be used prosecutorially.” 

U.S. at

. Generally, business records are “by their nature [] not

testimonial.” 

U.S. at 

.

      The Supreme Court recently expanded its definition of “testimonial”

statements to include affidavits containing the results of forensic analysis of seized

substances. Melendez-Diaz v. Massachusetts, __ U.S. __, __, 

,

2532, 

(2009). It did so because such affidavits were “made

under circumstances which would lead an objective witness reasonably to believe

that the statements would be available for use at a later trial,” and their sole

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purpose “was to provide prima facie evidence of the composition, quality, and the

net weight of the analyzed substance.” 

quotations omitted). The

Court rejected the argument that the affidavits were admissible as business

records, stating that:

      Business and public records are generally admissible absent
      confrontation not because they qualify under an exception to the
      hearsay rules, but because–having been created for the administration
      of an entity’s affairs and not for the purpose of establishing or
      proving some fact at trial–they are not testimonial. Whether or not
      they qualify as business or official records, the analysts’ statements
      here–prepared specifically for use at petitioner’s trial–were testimony
      against petitioner, and the analysts were subject to confrontation
      under the Sixth Amendment.

Id. at __ U.S. at __, 129 S.Ct. at 2539-40.

      Consistent with the Supreme Court’s decision in Melendez-Diaz, we have

held that documents which are routinely recorded for a purpose other than

preparation for a criminal trial are non-testimonial for purposes of the Sixth

Amendment. See 

(holding that an immigration

form, used for “routine, objective cataloging of unambiguous biographical

matters,” was not testimonial because it was primarily used to track the entry of

aliens into the United States, and it was “of little moment that an incidental or

secondary use of the interviews underlying the [] forms actually furthered a

prosecution.”). We have also held that the documents at issue in this case, cell

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phone records and cell tower locations, are business records within the meaning of

Fed.R.Evid. 803(6), and thus, satisfy an exception to the hearsay rule. See United

States v. Sanchez, 

, 929-30 (11th Cir. 2009), cert. denied, 

(2010).

      We conclude that Green’s cell phone records and cell tower location

information qualified as business records under Fed.R.Evid. 803(6) which, by their

nature, are non-testimonial for purposes of the Sixth Amendment. See Crawford,

541 U.S. at 

; 

. Further, because

the records were generated for the administration of Metro PCS’s business, and

not for the purpose of proving a fact at a criminal trial, they were non-testimonial,

and the district court did not violate Green’s constitutional right by admitting them

into evidence.

                                   II. Sentencing

      “A district court’s upward adjustment of a defendant’s Guidelines offense

level due to his status as a leader or organizer under U.S.S.G. § 3B1.1 is a finding

of fact reviewed only for clear error.” United States v. Phillips, 

,

1055 (11th Cir. 2002).




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      In determining whether a defendant was an organizer or leader, pursuant to

U.S.S.G. § 3B1.1(c), the district court should consider the following factors:

      the exercise of discretion 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.

U.S.S.G. § 3B1.1, comment. (n.4). “The assertion of control or influence over

only one individual is enough to support a § 3B1.1(c) enhancement.” 

. In Phillips, we concluded that there was “abundant evidence”

supporting the district court’s finding that the defendant was an organizer of a

bank robbery when two codefendants testified that he did most of the planning and

preparation for the robbery, including suggesting the idea of the bank robbery,

selecting the bank to be robbed, providing the guns, and purchasing the supplies,

and then waited in a get-away car monitoring a police scanner during the

commission of the robbery. 

case, the trial judge heard evidence that Green suggested the bank

robbery, selected the bank, recruited two accomplices, developed the plan for the

robbery, and played the primary role during the actual commission of the robbery.




                                          6
Based thereupon, it was not clear error for the district court to find that Green was

subject to a two-level enhancement pursuant to U.S.S.G. § 3B1.1(c).

      For the foregoing reasons, Green’s conviction and sentence are

      AFFIRMED.




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