author: STEPHEN A. HIGGINSON, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee v. Miguel Angel ESCAMILLA, Jr., Defendant-Appellant
    No. 16-40333
    United States Court of Appeals, Fifth Circuit.
    Filed March 29, 2017

      Anna Elizabeth Kalluri, Renata Ann Gowie, Carmen Castillo Mitchell, Assistant U.S. Attorneys, Paul Eunkuk Kim, U.S. Attorney’s Office, Houston, TX, for Plaintiff-Appellee.
    John Riley Friesell, Friesell Westerlage, P.L.L.C., Houston, TX, for Defendant-Appellant.
    Before PRADO, HIGGINSON, and COSTA, Circuit Judges.
   STEPHEN A. HIGGINSON, Circuit Judge:

Miguel Escamilla appeals his convictions for conspiring to possess and possessing with the intent to distribute marijuana and heroin. Pressing five issues, Escamilla argues that the district court erroneously failed to suppress incriminating evidence that government agents obtained from an allegedly unconstitutional stop and ultimate arrest. We hold that much of the agents’ conduct was reasonable and therefore constitutional. We also hold, however, that the district court erred by admitting evidence obtained from an unconstitutional, post-arrest search of a cell phone in Escamilla’s possession. We nonetheless affirm the judgment of the district court because the error was harmless.

I

On December 4, 2014, Border Patrol agents Julio Garcia and David Freed patrolled the privately owned OKM Ranch— approximately thirty miles from the Mexican border — in Laredo, Texas. According to the agents, smugglers “common[ly]” cut through the ranch to avoid two Border Patrol checkpoints at either end of the property. The “legitimate traffic” through the ranch is primarily oil industry workers.

Around 6:30 a.m., the agents, driving southbound through the ranch, saw two similar white trucks driving in the opposite direction. The first truck, a Ford F-250, and the second truck, a Ford F-150, appeared to travel together or “in tandem.” A few minutes later, Border Patrol’s “drawbridge activation,” a camera-like sensor designed to detect illegal entry into the ranch, alerted all nearby agents that a vehicle had entered the ranch “at an undisclosed location ... where [a vehicle] should not be.” Realizing that the trucks they passed resembled the vehicle in the alert, the agents turned around to investigate further.

Upon encountering the trucks again, the agents noticed that they were still traveling in tandem. The agents recognized this manner of driving as common among smugglers: one vehicle is the “load vehicle” carrying contraband, while the other is “a scout or disturbance” vehicle. The trucks were also still traveling north, heading to exit the ranch and circumvent Border Patrol’s checkpoints. But at 6:30 in the morning, oilfield workers are usually entering— not leaving — the ranch for work.

The agents focused on the F-150, noticing that it did not bear the customary markings of any oil company, such as a fleet number or work badge displayed from the rear view mirror. Rather, there was a personal decal on its back window— unusual for a company truck. The F-150 also had temporary “paper tags,” which are uncommon among legitimate oilfield traffic, but common among smugglers. As the agents followed the F-150, they checked its registration, which revealed a woman’s residential address. In the agents’ experience, company vehicles are typically registered to a business. Agent Garcia and Agent Freed thought that the F-150 was likely a “clone” — an everyday vehicle intended to resemble a legitimate oilfield truck, but carrying undocumented immigrants or drugs from the border.

When the agents activated their lights to stop the F-150, the F-250 sped away, leading them to believe it was the “load vehicle” carrying contraband. Agent Freed “called in” the F-250, asking other nearby agents to track it down.

Upon stopping the F-150, the agents noticed that its exterior was unusually clean, unlike typical oilfield trucks. As Agent Garcia approached the F-150, he saw that it had no tools or other objects that work trucks usually carry. The truck’s fuel cell also looked out of place and lacked a fuel pump, rendering it inoperable. When Agent Garcia asked the driver — Escamil-la — what he was doing on the ranch, he seemed “nervous” and “couldn’t give ... a definitive answer.” Escamilla said he worked for “Valdez” but did not explain what type of work he did, and Agent Garcia did not recognize the name. Agent Freed then checked Escamilla’s license and discovered “a narcotics case” on his record.

As Agent Garcia continued talking to Escamilla, he noticed the interior of the F-150 was also unusually clean. Agent Garcia also noticed that Escamilla wore a shirt that looked similar to a work uniform but lacked company logos or decals. Escamilla then agreed to let Agent Garcia and Agent Freed search the F-150. During the search, Agent Garcia opened the out-of-place fuel cell to find that it was empty and appeared modified or “hollowed out.” The agents knew that smugglers often carry drugs in hollowed-out fuel cells. The agents also saw “fake shirts” and “brand new [generic] vests,” which they thought oilfield workers would not usually bring to work. These items corroborated their suspicion that the F-150 was a “clone.”

After searching the truck, Agent Garcia asked to search Escamilla’s phone. Specifically, he asked, “do you mind if I look through your phone?[,]” and Escamilla silently handed it over. The phone was a simple flip phone — a “burner” in Agent Garcia’s opinion — containing only three numbers, two of which were saved under a single letter, rather than a proper name. After searching the phone, Agent Garcia handed it back to Escamilla because, in Agent Garcia’s words, he was “done with it.”

About ten minutes after stopping Es-camilla, Agent Garcia asked if he would allow a Border Patrol dog to sniff his vehicle. When Escamilla consented, Agent Garcia told him to drive approximately two minutes to the ranch’s “main gate,” where they waited another ten minutes for the dog to arrive. When the dog sniffed the F-150, its handler reported that the dog “alert[ed], but nothing solid.” In Agent Garcia’s view, this meant “something may have been in [the truck] at some point in time previously [or] recently.”

At this point, Agent Garcia called his superior to report Escamilla’s behavior. As they spoke, Agent Garcia and Agent Freed simultaneously overheard radio traffic about the F-250. Border Patrol agent Brian Jennings had followed the F-250 out of the OKM Ranch. The F-250 tried to speed away, “ramming [the] gate” at a nearby ranch and “taking out a couple [of] deer-proof fences” before crashing. By the time Agent Jennings reached the wreck, the driver had fled, leaving marijuana and black tar heroin behind. When Agent Jennings reported the drug seizure over his radio — about twenty-four minutes after Escamilla’s initial stop — Agent Garcia and Agent Freed arrested Escamilla based on his connection to the F-250.

The agents drove Escamilla to a nearby Border Patrol station where they met DEA Agent Jason Antonelli. There, agents took “all of [Escamilla’s] personal property ... from him” and “turned [it] over to the DEA.” According to Agent Antonelli, Agent Garcia and Agent Freed told him that Escamilla had “verbal[ly] consented]” to a search of his phone. The Border Patrol agents also gave Agent Antonelli a second phone, broken in half but otherwise identical to the one taken from Escamilla, that Agent Brian Jennings recovered from the wrecked F-250. Agent Antonelli looked through both phones to find their contact numbers.

Agent Antonelli then told Escamilla that he was going to jail and asked him to claim his property from the items Border Patrol agents had taken from him. Escamilla claimed his driver’s license, “various bead necklaces,” and some change. He did not claim the phone that the Border Patrol agents searched at the OKM Ranch and took from him at the station. When Agent Antonelli’s partner asked about it, Escam-illa said the phone wasn’t his, but that he had used it to call his girlfriend.

The next day, December 5, Agent Anto-nelli used the contact numbers he discovered from both phones to subpoena their accompanying records from AT&T. AT&T’s records revealed that whoever used the two phones called each other 196 times between November 20 and December 4, the day of Escamilla’s arrest. The phones texted 29 times during the same period. On December 2, the phone recovered from Escamilla texted a third number to the broken phone from the F-250, and the user of the broken phone called that number on December 4, forming “a triangle connection” among the three devices.

On December 9, Agent Antonelli used a forensic examination program called “Cel-lebrite” to download any contacts, pictures, or videos from both phones. The Cellebrite program also confirmed the phones’ contact numbers, which Agent Antonelli learned from his manual search of the phones five days earlier. For the manual search on December 5 and the Cellebrite search on December 9, Agent Antonelli relied on Escamilla’s consent given during the Border Patrol agents’ stop on December 4. He never requested a search warrant.

In his resulting prosecution for drug possession and conspiracy, Escamilla moved to suppress the phone that agents recovered from him, its contact number, evidence of calls or texts, and any other “digital data” stored on the phone. After a two-day suppression hearing, the district court determined that the Border Patrol agents lawfully stopped Escamilla. The district court also held that, during the stop, Escamilla voluntarily consented to a search of the phone in his possession, which encompassed Agent Antonelli’s manual search at the station, and that Es-camilla had abandoned any expectation of privacy in the phone when he disclaimed ownership of it, which justified Agent An-tonelli’s Cellebrite search. A jury found Escamilla guilty on all counts. After sentencing and entry of final judgment, Es-camilla timely appealed, arguing that the district court erred by denying his motion to suppress.

II

When a defendant challenges the district court’s denial of a motion to suppress, we review the district court’s findings of fact for clear error and its conclusions about the constitutionality of law enforcement conduct de novo. United States v. Danhach, 815 F.3d 228, 232-33 (5th Cir. 2016). We view the evidence in the light most favorable to the prevailing party — here, the Government — and we may affirm the district court’s ruling for any reason supported by the record. Id. at 233. If we find constitutional error, however, we must reverse the judgment of the district court unless the error is “harmless.” Fed R. Crim. P. 52(a); United States v. Wright, 777 F.3d 769, 777 (5th Cir. 2015). Our harmlessness inquiry requires the Government to prove “beyond a reasonable doubt that the error complained of did not contribute to the ver-diet.” United States v. Zavala, 541 F.3d 562, 581 (5th Cir. 2008).

Ill

Escamilla argues five issues on appeal: first, that the Border Patrol agents’ initial stop was unjustified; second, that, even if justified, the stop was unreasonably prolonged; third, that he did not voluntarily consent to Agent Garcia’s search of the phone in his possession during the stop; fourth, that Agent Antonelli’s post-arrest searches of the phone were unconstitutional; and fifth, that the evidence obtained from all of this unconstitutional conduct was introduced at trial and contributed to the jury’s guilty verdict.

A

The Fourth Amendment’s prohibition on unreasonable searches and seizures applies to stopping a vehicle and detaining its occupants. Delaware v. Prouse, 440 U.S. 648, 658, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). A vehicle stop complies with the Fourth Amendment if it is justified at inception and law enforcement officers’ conduct during the stop is reasonably related in scope and duration to the circumstances justifying the detention. United States v. Brigham, 382 F.3d 500, 506 (5th Cir. 2004) (en banc) (citing Terry v. Ohio, 392 U.S. 1, 19-20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Escamilla argues that the Border Patrol agents had no reason to stop the F-150 as he drove through the OKM ranch.

To justify a vehicle stop, officers must have a “reasonable suspicion” — that is, “specific and articulable facts ... taken together with rational inferences from those facts” — that “criminal activity [is] afoot.” Terry, 392 U.S. at 21, 30, 88 S.Ct. 1868. In considering whether officers reasonably suspect someone of criminal activity, we defer to their law enforcement experience, recognizing that trained officers may draw inferences from certain facts “that might well elude an untrained person.” United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981); accord United States v. Sanchez-Pena, 336 F.3d 431, 437 (5th Cir. 2003).

When roving Border Patrol agents stop a vehicle in a “border area,” rather than at an official checkpoint, we consider whether several factors (known as the Brignoni-Ponce factors) contribute to the agents’ reasonable suspicion: (1) the area’s proximity to the border; (2) the area’s characteristics; (3) the usual traffic patterns on the road; (4) the agents’ previous experience with criminal activity; (5) information about recent illegal trafficking in the area; (6) the appearance of the vehicle; (7) the driver’s behavior; and (8) the passengers’ number, appearance, and behavior. United States v. Garza, 727 F.3d 436, 440 (5th Cir. 2013) (citing United States v. Brignoni-Ponce, 422 U.S. 873, 884-85, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975)). Because reasonable suspicion is a totality-of-the-eircumstances analysis, we consider these factors collectively, not in isolation. Id.

Here, all of the factors weigh in favor of the Government. The OKM Ranch is only thirty miles from the Texas-Mexico border, “where many smuggling trips orig-mate.” United States v. Ramirez, 839 F.3d 437, 440 n.2 (5th Cir. 2016). The ranch is also a “common corridor[ ]” for smugglers because it circumvents two Border Patrol checkpoints, and “[i]t is well established that a road’s reputation as a smuggling route adds to the reasonableness of the agents’ suspicion.” United States v. Zapata-Ibarra, 212 F.3d 877, 881 (5th Cir. 2000) (citation omitted). Relying on their years of Border Patrol experience, Agent Garcia and Agent Freed noticed several suspicious facts about the F-150 Escamilla was driving. To start, they were “propelled into action by sensors designed to avoid routine ranch traffic” and discovered “an unfamiliar and atypical-looking oil field vehicle.” United States v. Inocencio, 40 F.3d 716, 723 (5th Cir. 1994). “Legitimate” ranch traffic usually arrives early in the morning, but at 6:30 a.m., the F-150 appeared to be leaving. See United States v. Nichols, 142 F.3d 857, 866 (5th Cir. 1998) (relying on testimony that defendant “was on the road ... earlier than utility vehicles normally appeared in that area”). The truck also lacked the usual markings of an oil company vehicle, was registered to a residence rather than a business, and had temporary “paper tags,” which smugglers often use. See United States v. Villalobos, 161 F.3d 285, 289 (5th Cir. 1998) (highlighting a vehicle’s use of temporary tags). Escamilla was also driving “in tandem” — a manner of travel common among smugglers — with the F-250 in front of him for several minutes. Id. at 290 (noting that this “lead carload car arrangement.... may raise an agent’s suspicions”). Accordingly, the district court did not err in concluding that the agents reasonably suspected Escamilla of criminal activity and therefore lawfully stopped his vehicle.

B

Escamilla also contends that the agents unreasonably prolonged the stop by engaging in conduct not reasonably related to their initial suspicion. An officer’s conduct is reasonably related to the justification for the stop when the officer “diligently pursue[s] a means of investigation that is likely to confirm or dispel [the officer’s] suspicions quickly.” United States v. Pack, 612 F.3d 341, 361 (5th Cir. 2010) (citing United States v. Sharpe, 470 U.S. 675, 686, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985)). Officers unreasonably — hence, unconstitutionally — prolong a stop if they detain a person “beyond the time needed to investigate the circumstances that caused the stop.” Id. at 350.

Escamilla argues only that the agents should have let him leave as soon as the Border Patrol dog found “nothing solid.” It’s true that when the dog sniffed the F-150, the handler reported that the dog, which reacted only to contraband, “alert[ed], but nothing solid.” Agent Garcia testified that he thought the dog had alerted to residual odors — that “something may have been in [the F-150] at some point in time previously [or] recently” or that at “some other time there may or may not have been something that came in contact with that vehicle that would cause a K-9 to alert.” Ignoring Agent’s Garcia’s testimony, Escamilla contends that the dog sniff unequivocally “dispelled suspicion” that he had drugs in the F-150.

After stopping Escamilla, the Border Patrol agents continued to amass suspicion that he was involved in smuggling. Although the Border Patrol dog’s sniff did not indisputably confirm the agents’ suspicion by revealing hidden contraband, neither did the sniff dispel suspicion, contrary to Escamilla’s suggestion. Cf. Pack, 612 F.3d at 357 (“[P]olice do not have to observe the equivalent of direct evidence of a particular specific crime ... to detain a lawfully stopped individual to investigate where there is reasonable suspicion of criminal activity....”). The dog “alert[ed]” in a way that led the agents to believe the F-150 had recently carried or been near. contraband — a fact consistent with their suspicion that it served as a “scout” or “disturbance” vehicle for another car, which still constitutes criminal activity. Cf. Florida v. Harris, — U.S. -, 133 S.Ct. 1050, 1056 n.2, 185 L.Ed.2d 61 (2013) (“A detection dog recognizes an odor, not a drug, and should alert whenever the scent is present, even if the substance is gone.... ”). Further, the overall stop — -justified by suspicion of smuggling, rather than a mere traffic violation — lasted no more than twenty-four minutes. Consequently, any delay between the agents’ completing the dog sniff and arresting Es-camilla after Border Patrol Agent Jennings found drugs in the F-250 was reasonable. See Pack, 612 F.3d at 361-62 (holding that a thirty-five-minute stop was constitutionally reasonable).

C

Escamilla next argues that he did not voluntarily consent to Agent Garcia’s request to search the cell phone he had with him during the Border Patrol agents’ investigatory stop. To determine whether a person’s consent is voluntary, we consider six factors: (1) the voluntariness of the suspect’s custodial status; (2) the presence of coercive police procedures; (3) the nature and extent of the suspect’s cooperation; (4) the suspect’s awareness of his right to refuse consent; (5) the suspect’s education and intelligence; and (6) the suspect’s belief that no incriminating evidence will be found. United States v. Macias, 658 F.3d 509, 523 (5th Cir. 2011).

The district court weighed each factor and concluded that under the totality of the circumstances Escamilla’s consent was voluntary. Relying primarily on out-of-circuit precedent, Escamilla argues that the district court incorrectly weighed factors two, three, and six in favor of the Government. He emphasizes that the circumstances were coercive because he was “alone and detained by two armed U.S. Border Patrol agents ... on a secluded road while it was still dark” and unaware of his Miranda rights. Escamilla also contends that he was essentially uncooperative because he did not “admit[] his involvement in criminal activity before consenting” or “assist agents in their search.” In addition, he argues that the district court erroneously inferred that he did not believe -police would find incriminating evidence on his phone even though the limited number of contacts with “obscure designations” would surely rouse Agent Garcia’s suspicion.

Viewing the evidence collectively and in a light most favorable to the Government, the district court’s findings of fact are not clearly erroneous, and its conclusion that Escamilla voluntarily consented is sound. As Escamilla admits, “[t]here is no Miranda requirement’ attending a simple request for permission to search.” United States v. Arias-Robles, 477 F.3d 245, 250 (5th Cir. 2007). Further, “the mere presence of armed officers does not render a situation coercive.” United States v. Martinez, 410 Fed.Appx. 759, 764 (5th Cir. 2011) (unpublished); see, e.g., United States v. Mata, 517 F.3d 279, 291 (5th Cir. 2008) (finding no coercion when “police did not have their weapons drawn”). There is no evidence that Agent Garcia or Agent Freed in any way threatened Escamilla; indeed, both agents specifically testified to the contrary. See Mata, 517 F.3d at 291 (finding voluntary consent when “no officer threatened or yelled at [the defendant] or ‘treated him rudely’ ”); United States v. Tompkins, 130 F.3d 117, 122 (5th Cir. 1997) (emphasizing that officers did not use threats, violence, or “overt[ly] display [their] authority”).

According to the uncontested evidence, Agent Garcia simply asked “do you mind if I look through your phone?[,]” and Escam-illa handed it over. We have recognized that consent “can be implied from silence or failure to object if it follows a police officer’s explicit or implicit request for consent.” Martinez, 410 Fed.Appx. at 763. Escamilla’s conduct here constitutes more than mere silence or failure to object — he actively complied with Agent Garcia’s request by handing the phone directly to him. See United States v. Cooper, 43 F.3d 140, 148 (5th Cir. 1995) (finding “clear cooperation” when a defendant “produced his ticket when requested” and “stood up voluntarily prior to the pat-down”); United States v. Zapata, 18 F.3d 971, 977 (1st Cir. 1994) (“[I]t is settled law that the act of handing over one’s car keys, if uncoerced, may in itself support an inference of consent to search the vehicle.”). Accordingly, Escamilla voluntarily consented to Agent Garcia’s search of the phone.

D

Escamilla also challenges Agent Anto-nelli’s two post-arrest searches of the phone. Shortly after meeting Escamilla and the Border Patrol agents at the station, Agent Antonelli first manually searched the phone to determine its contact number so that he could request its call records. Escamilla then refused to claim the phone, specifically saying that it did not belong to him and leaving the phone with Agent Antonelli and his partner before going to jail. Five days later, Agent Antonelli searched the phone a second time using the forensic examination program Cellebrite.

1

The district court held that Escamilla’s consent, given during the Border Patrol agents’ vehicle stop, encompassed Agent Antonelli’s manual search because Escam-illa never revoked his consent or indicated that he did not permit Agent Antonelli to search the phone. In reaching its conclusion, the district court relied on its understanding that “Agent Garcia kept Defendant’s phone after Defendant handed it to him” — an assertion plainly contradicted by the record. Agent Garcia specifically testified that “after [he] searched that telephone ... [he] gave it back to [Escamilla] upon being done with it.” This undisputed fact leads us to a different conclusion.

When the Government relies on consent as the basis for a warrantless search, officers “have no more authority than they have apparently been given by the consent.” Zavala, 541 F.3d at 576 (quoting United States v. Mendoza-Gonzalez, 318 F.3d 663, 666 (5th Cir. 2003)). We measure the scope of a person’s consent by what is objectively reasonable: “what would the typical reasonable person have understood by the exchange between the officer and the suspect?” Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991). “Thus, it is ‘important to take account of any express or implied limitations ... attending that consent which establish the permissible scope of the search in terms of ... time, duration, area, or intensity.’ ” United States v. Cotton, 722 F.3d 271, 275 (5th Cir. 2013) (quoting 4 Wayne R. LaFave, Search and Seizure § 8.1(c) (5th ed. 2012)).

Here, Escamilla silently consented to Agent Garcia’s “look[ing] through” his phone during the stop at the ranch by handing his phone directly to the agent. It’s true that as Agent Garcia searched the phone, Escamilla never “revoke[d] his consent,” said “not to look through his phone,” or otherwise verbally limited the scope of the consensual search. But after viewing the limited information on the phone, Agent Garcia “gave it back to [Escamilla] upon being done with it.” Roughly four hours later and after Escamilla’s arrest, Agent Antonelli searched the phone again. The Government argues that this search was justified by Escamilla’s earlier, “general and unrevoked” consent. But as we have explained:

[A] defendant’s failure to object after giving his general authorization to search might indicate that a search, later challenged as outside the scope of consent, was actually within it. But any failure to object “should not be treated as expanding a more limited consent, especially when the circumstances suggest some other possible reason for [the] defendant’s silence.”

Cotton, 722 F.3d at 278 (footnotes omitted) (quoting LaFave, supra at § 8.1(c)).

The facts surrounding Agent Garcia’s search establish an implied limit to Escamilla’s consent. Just as Escamilla’s directly handing Agent Garcia the phone initiated the consensual search, a reasonable person would understand that Agent Garcia’s directly handing the phone back to Escamilla ended it. Agent Garcia’s search during the stop was one, complete search, and Agent Antonelli’s search at the station was a second, distinct search requiring a warrant, its own consent, or some other exception to the warrant requirement. See LaFave, supra at § 8.1(c) (noting that when a reasonable person consents to a search, he or she may understand that “the search will be conducted forthwith and that only a single search will be made”). When the facts and circumstances surrounding a person’s consent suggest a natural end to the consensual exchange with law enforcement, officers should not view the earlier consent as “authorizing a second search at some future time if the first search is not fruitful.” Id. Because it is undisputed that Agent Anto-nelli did not have a warrant and the Government does not offer any other exception to the Fourth Amendment’s usual warrant requirement to justify his search, we find that Agent Antonelli’s post-arrest manual search of the phone at the Border Patrol station was unconstitutional, and the district court should have suppressed the evidence linked to this search. See Riley v. California, — U.S. -, 134 S.Ct. 2473, 2495, 189 L.Ed.2d 430 (2014) (“Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple — get a warrant.”).

2

Regarding Agent Antonelli’s days-later Cellebrite search — another distinct search — the district court held that Es-camilla abandoned any privacy interest he had in the phone and therefore could not challenge this search. We agree.

As a general rule, “Fourth Amendment rights are personal,]” and “may not be vicariously asserted.” Aiderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969). Accord ingly, “a person has no standing to challenge a search or seizure of property that was voluntarily abandoned.” United States v. Powell, 732 F.3d 361, 374 (5th Cir. 2013). In Powell, police searched defendants Booker Powell and April Akin’s car for evidence of drug trafficking. Id. at 367-68. The officers heard ringing during the search and discovered a phone near the driver’s seat. Id. at 368. “Powell denied the phone was his,” and “Akin said that it belonged to Powell.” Id. at 374. We held that by “disclaim[ing] personal connection to the phone,” Akin abandoned it, which deprived her of standing to challenge the admissibility of the phone and its records. Id.

Like the defendant in Powell, Escamilla expressly disclaimed ownership of the phone and left it in the possession of DEA agents. By doing so, Escamilla abandoned the phone and has no standing to challenge Agent Antonelli’s Cellebrite search. Es-camilla’s reliance on a single out-of-circuit case, decided before Powell, is misplaced.

E

Because we find that Agent Anto-nelli’s manual search of the phone recovered from Escamilla was unconstitutional, we must address whether the Government’s reliance at trial on unconstitutionally obtained evidence, the phone’s contact number and AT&T records, was harmless. In other words, we must determine whether the district court’s admitting this evidence contributed to the jury’s verdict. Zavala, 541 F.3d at 581 (citing Neder v. United States, 527 U.S. 1, 15, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999)). Harmless error review is thus “fact-specific and record-intensive,” requiring a close look at the trial proceedings. United States v. El-Mezain, 664 F.3d 467, 526 (5th Cir. 2011).

At trial, the Government introduced the phone’s contact number and the accompanying call records to connect Es-camilla to the driver of the F-250, who actually possessed marijuana and heroin, and thus to the drug conspiracy. Relying on these records, Agent Antonelli testified about the frequency of communication between the phone recovered from Escamilla and the broken phone recovered from the F-250. Specifically, he testified that the two phones called each other 196 times and texted 29 times in the month before Escamilla’s arrest.

Two facts are fatal to Escamilla’s argument that the unconstitutionally obtained evidence contributed to the jury’s guilty verdict. First, Escamilla has not challenged the manual search of the other phone, which led to Agent Antonelli receiving records detailing any calls and texts to or from that phone. Unsurprisingly, these records reflect the same 196 phone calls and 29 text messages between the broken phone recovered from the F-250 and the phone recovered from Escamilla, identified in the records by its contact number. As Escamilla points out, these records are helpful only if the Government knows the number associated with the phone recovered from Escamilla, which it originally learned from the unconstitutional search. But at oral argument, Escamilla’s counsel candidly admitted that the Cellebrite search, which Escamilla lacks standing to challenge, also revealed the phone’s contact number. With this knowledge of the phone number associated with Escamilla, the jury could have connected him to the F-250 based on only the AT&T records from the broken phone. Consequently, the unconstitutionally obtained evidence that Escamilla argues is harmful merely duplicates other evidence in the trial record.

Second, the Government introduced evidence other than the phone records that connected Escamilla to the F-250. For example, Agent Antonelli testified that, after Escamilla’s arrest, agents discovered that the F-150 Escamilla drove and the abandoned F-250 carrying the drugs contained identical items, such as the same brand of generic work vests and air fresheners, which substantiated the Border Patrol agents’ “clone” theory. Specifically, a right-handed glove found in the F-250 was the same brand and size as a left-handed glove found in the F-150. The Government also introduced a recording and a transcript of a conversation between Escamilla, while in prison, and his girlfriend, Monica Ortiz, that demonstrates his knowledge of the drug conspiracy. Escamilla told Ortiz that the person in the F-250 “left the f* * *ing chip [from the broken phone] behind and should have taken it with him.” Escamilla also admitted to erasing the calls on the phone in his possession before encountering the Border Patrol agents. All of this evidence incriminates Escamilla. We therefore find that erroneously admitting the evidence derived from the unconstitutional search was harmless. See El-Mezain, 664 F.3d at 526 (“[E]rror in admitting evidence [is] harmless when the evidence is cumulative, meaning that substantial evidence supports the same facts and inferences as those in the erroneously admitted evidence.”).

rv

In sum, we hold that all of the Border Patrol agents’ conduct was constitutional and that Escamilla voluntarily consented to a search of the phone in his possession during the lawful vehicle stop. Because Border Patrol Agent Garcia completed his consensual search of the phone and returned it to Escamilla, DEA Agent Anto-nelli’s post-arrest manual search of the phone at the Border Patrol station was a distinct search, requiring independent justification. Without it, Agent Antonelli’s search was unconstitutional. Nonetheless, because the Government discovered the same evidence from Agent Antonelli’s manual search of the broken phone from the F-250 and the Cellebrite search of the phone recovered from Escamilla after he abandoned it, the relevant evidence obtained from the unconstitutional search was merely duplicative of other admissible evidence in the trial record. Accordingly, we affirm the- judgment of the district court because the error was harmless.

      . Escamilla does not challenge the agents’ search of the F-150.

      . Escamilla does not challenge the voluntariness of his consent to the dog sniff.

      . Although Escamilla does not own the F-150, the Government does not dispute Escamilla's standing to challenge the stop.

      . Relying on United States v. Robert L., 874 F.2d 701 (9th Cir. 1989), Escamilla argues that there is insufficient evidence of the F-150 and F-250 traveling "in tandem” because the Border Patrol agents "did not observe [them] travel over very much distance before stopping the F-150.” The district court did not explicitly find that Escamilla and the F-250 were driving in tandem, noting only that the "two vehicles were travelling north in close proximity to each other.” Viewing the evidence in a light most favorable to the Government, however, supports finding that the trucks were traveling in tandem. The agents first saw the trucks traveling together as the agents drove past them on the main road. After the drawbridge activation alert “a couple [of| minutes” later, agents turned around to follow the trucks (which likely also took a few minutes) and found them still traveling together.

      . For example, when the agents stopped Es-camilla, the F-250 immediately sped away, leading the agents "to believe that it could have been either loaded with narcotics or [undocumented immigrants.]” Cf. Illinois v. Wardlow, 528 U.S. 119, 125, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (holding that unprovoked flight in an area of heavy drug trafficking justified officers’ reasonable suspicion). The F-150 Escamilla drove was unusually clean, unlike typical oil company trucks. See Nichols, 142 F.3d at 866 (noting that a car's "uncharacteristic[ ] cleanliness]” contributed to reasonable suspicion). It also lacked tools or other common cargo. See id. at 863 (noting that agents stopped a truck after noticing that it "carried no tools or pipe racks typical of oil field trucks”). The fuel cell in the bed of the F-150 also looked out of place and was unusable, and smugglers often fill modified or "fake” fuel cells with drugs. See United States v. Estrada, 459 F.3d 627, 632 (5th Cir. 2006) (highlighting an officer’s observation that the defendant’s fuel tank looked "out of the ordinary” as if it "had been tampered with”). Escamilla, who had "a narcotics case” on his record, seemed nervous when he told the agents he worked for "Valdez,” but could not elaborate, and the agents did not recognize the name. See Pack, 612 F.3d at 355 (noting "nervousness” and "inconsistent stories” can contribute to reasonable suspicion); United States v. Gonzalez, 328 F.3d 755, 758 (5th Cir. 2003) (noting that a prior arrest for drug trafficking contributed to reasonable suspicion). And Escamilla’s "work” clothes, both on his person and in his vehicle, did not bear any company logos and were unusually clean, like his truck. See Inocencio, 40 F.3d at 720 ("[AJIthough [the defendant] appeared to be dressed as a workman, his clothing appeared too clean to have been working in the field.”).

      . Escamilla also emphasizes that the agents did not inform him of his right to refuse consent, but the district court correctly considered this fact in its totality-of-the-circumstances analysis.

      . At oral argument, Escamilla's counsel heavily emphasized our decision in United States v. Finley, 477 F.3d 250 (5th Cir. 2007), asserting that it supports his argument that Escamilla has standing to challenge the Celle-brite search. Finley explains a noncontroversial point: a person need not own a thing to have a reasonable expectation of privacy in it. In Finley, we held that the defendant's possession and use of a phone officially owned by a business was sufficient to give him a reasonable expectation of privacy in the phone and standing to challenge its search. Id. at 259. The issue here, however, is one not addressed in Finley, whether a person who voluntarily disclaims a thing gives up any interest he once had in it (say, because of his possession and use) and, as a result, no longer has standing to challenge its search. Powell answers this question affirmatively.

      . Escamilla relies on United States v. Lopez-Cruz, in which the defendant told an officer that the car he was driving and two phones in the console "belonged to a friend.” 730 F.3d 803, 805-06 (9th Cir. 2013). The Ninth Circuit held that the defendant had standing to challenge a search of the phones because the court had never held that "mere disavowal of ownership, without more constitutes abandonment.” Id. at 809. Specifically, the court explained that this case "involves only [the defendant's] response to the agent's question as to whether the phones were his rather than any affirmative denial of any association with the phones.” Id. Here, Escamilla more than "mere[ly] disavowed” ownership of the phone; he simultaneously left it with two DEA agents who, believing it belonged to Escamil-la, tried to return it to him so it could be kept with his other belongings in jail.

      . The record supports counsel s concession. At Escamilla's suppression hearing, Agent An-tonelli testified that the Cellebrite search of the phone taken from Escamilla identified the phone number, the phone’s contact list, and any recent calls.


source: Caselaw Access Project

author: COOK, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Jermaine MORRISON, Defendant-Appellant.
    No. 16-5452
    United States Court of Appeals, Sixth Circuit.
    Decided and Filed January 25, 2017

      ON BRIEF: David M. Bell, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Memphis, Tennessee, for Appellant. Marques T. Young, UNITED STATES ATTORNEY’S OFFICE, Memphis, Tennessee, for Appellee.
    Before: COLE, Chief Judge; COOK and WHITE, Circuit Judges.

       The decision was originally filed as an unpublished opinion on January 25, 2017. The court has now designated the opinion for full-text publication.

   COOK, Circuit Judge.

Jermaine Morrison pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). In a written plea agreement, Morrison waived his right to appeal “any sentence imposed by the Court ... so long as it is within the applicable guideline range, or lower, whatever that guideline range might be.” Morrison appealed, arguing that a change in the law entitles him to a reduced sentence and renders his appeal waiver unenforceable. Because we enforce the waiver as written, we dismiss Morrison’s appeal.

I.

At sentencing, the prosecutor argued that Morrison’s prior conviction for Tennessee aggravated burglary qualified as a “crime of violence,” setting his applicable Guidelines range at 77 to 96 months’ imprisonment. Although Morrison opposed the government’s classification, his objection never stood a chance. At the time the district court sentenced Morrison, the Sentencing Guidelines defined “crime of violence” to include “burglary of a dwelling.” USSG §§ 2K2.1 & cmt. (n.l), 4B1.2(a) (2015). Additionally, in United States v. Ozier, this court held that although Tennessee’s aggravated-burglary statute criminalizes more conduct than “generic” burglary under the Guidelines, the statute is “divisible” — i.e., lists multiple offenses in the alternative. 796 F.3d 597, 600-03 (6th Cir. 2015). That being so, we permitted courts to review a “limited class of documents ... to determine which alternative formed the basis of the defendant’s prior conviction.” Id. at 600 (omission in original) (quoting Descamps v. United States, — U.S. -, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013)), abrogated by Mathis v. United States, — U.S. -, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016). Bound by Ozier and the version of the Guidelines in effect at the time of sentencing, the district court examined Morrison’s plea colloquy from his earlier conviction and, after determining that' he had burglarized a “dwelling,” overruled Morrison’s objection and imposed a 96-month sentence.

Morrison appealed. While his appeal was pending, two legal developments cast doubt on Tennessee aggravated burglary’s classification as a crime of violence. First, the Supreme Court in Mathis v. United States clarified what makes a statute divisible, abrogating Ozier. See Mathis, 136 S.Ct. at 2251 & n.1. Second, we granted rehearing en banc to decide whether Tennessee’s aggravated-burglary statute criminalizes more conduct than generic burglary under the Armed Career Criminal Act, and if so, whether it is divisible in light of Mathis. United States v. Stitt, 646 Fed. Appx. 454 (6th Cir. 2016) (Mem.). Stitt is currently pending before the court.

II.

On appeal, Morrison argues that Tennessee aggravated burglary no longer qualifies as a crime of violence under the Guidelines and asks to be resentenced. But before addressing the merits, we must determine whether Morrison’s appeal waiver forecloses our consideration of his request. It does.

We will enforce an appeal waiver included in a plea agreement when the agreement is made knowingly and voluntarily. United States v. Toth, 668 F.3d 374, 378 (6th Cir. 2012) (citing United States v. Fleming, 239 F.3d 761, 764 (6th Cir. 2001)). Morrison may challenge his waiver of appeal rights only “on the grounds that it was not knowing and voluntary, was not taken in compliance with Fed. R. Crim. P. 11, or was the product of ineffective assistance of counsel.” United States v. Detloff, 794 F.3d 588, 592 (6th Cir. 2015) (quoting United States v. Atkinson, 354 Fed.Appx. 250, 252 (6th Cir. 2009)).

Here, Morrison makes no effort to undermine the voluntariness of his plea agreement, nor does he assert a violation of Federal Rule of Criminal Procedure 11. Our independent review of Morrison’s plea hearing confirms that he voluntarily waived his appellate rights. The district court informed Morrison that he was giving up his right to appeal any sentence within the Guidelines range, and explained the few narrow exceptions to that waiver (ineffective-assistance-of-counsel or prose-cutorial-misconduct claims). When asked if he understood, Morrison said “Yes, sir.”

Morrison instead relies on the change wrought by Mathis to maintain that he could not knowingly waive his right to appeal. It is well settled, however, that a change in law cannot render a plea agreement unknowing. See Brady v. United States, 397 U.S. 742, 757, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); United States v. Bradley, 400 F.3d 459, 463 (6th Cir. 2005) (“[W]here developments in the law later expand a right that a defendant has waived in a plea agreement, the change in law does not suddenly make the plea involuntary or unknowing or otherwise undo its binding nature.”). This rule reflects the sound judgment that a plea agreement, like any other contract, allocates risk. Bradley, 400 F.3d at 464. By waiving the right to appeal, a defendant assumes the risk that a shift in the legal landscape may engender buyer’s remorse. Id.; see also United States v. Morgan, 406 F.3d 135, 137 (2d Cir. 2005) (“The possibility of a favorable change in the law after a plea is simply one of the risks that accompanies pleas and plea agreements.”).

Accordingly, courts will enforce appeal waivers even when a legal development makes it likely that the defendant would receive a lower sentence were the defendant resentenced under the new law, and even when the legal change affects constitutional rights. For example, when the Sentencing Commission lowered the base offense levels for many drug offenses in 2008 and 2014, defendants who waived their right to appeal could not benefit from the change. See, e.g., United States v. Ellison, No. 16-5085, 664 Fed.Appx. 507, 509-10, 2016 WL 6818855, at *2 (6th Cir. Nov. 18, 2016) (per curiam); United States v. Marquez, 570 Fed.Appx. 816, 818-19 (10th Cir. 2014) (per curiam); United States v. Polly, 630 F.3d 991, 1002 (10th Cir. 2011). Similarly, after the Supreme Court voided for vagueness the “residual clause” in the ACCA’s definition of “violent felony,” see Johnson v. United States, — U.S. -, 135 S.Ct. 2551, 2557, 192 L.Ed.2d 569 (2015), courts routinely enforced the appeal waivers of prisoners who stood to benefit. See, e.g., Sanford v. United States, 841 F.3d 578, 579-80 (2d Cir. 2016) (per curiam); In re Garner, No. 16-1655, 664 Fed.Appx. 441, 443-44, 2016 WL 6471761, at *2 (6th Cir. Nov. 2, 2016); United States v. Hurtado, No. 16-2021, 667 Fed.Appx. 291, 292-93, 2016 WL 3410270, at *1 (10th Cir. June 17, 2016) (per curiam); United States v. Bey, 825 F.3d 75, 83 (1st Cir. 2016); United States v. Blackwell, 651 Fed. Appx. 8, 10 (2d Cir. 2016) (per curiam); United States v. Ford, 641 Fed.Appx. 650, 651 (8th Cir. 2016) (per curiam). Although Morrison understandably regrets waiving his appellate rights in light of Mathis and Stitt, his “lack of clairvoyance cannot undo [that] decision.” In re Garner, 2016 WL 6471761, at *2.

In an effort to circumvent his appeal waiver’s preclusive effect, Morrison invokes United States v. McBride, 826 F.3d 293 (6th Cir. 2016). In McBride, the defendant’s plea agreement included an “understanding” that he would be sentenced as a career offender because “he ha[d] at least two prior crime of violence convictions.” Id. at 294 (alteration in original). McBride appealed his sentence following Johnson, arguing that his prior offense for bank robbery no longer qualified as a crime of violence. Id. at 295. Although we recognized that McBride’s consent to his career-offender designation would normally waive his right to challenge it on appeal, we nonetheless reviewed for plain error, reasoning that “McBride could not have intentionally relinquished a claim based on Johnson[.T Id.

But the McBride plea agreement, unlike the one here, did not include an appeal waiver; McBride simply agreed that he qualified as a career offender. Looking past the waiver-inducing effect of such a concession makes sense in those circumstances — after all, McBride could not “have intentionally relinquished” a Johnson-based challenge to his career-offender designation “considering [Johnson] was decided after [he was] sentenced.” United States v. Stines, 313 F.3d 912, 917 (6th Cir. 2002); see also McBride, 826 F.3d at 295. Morrison, on the other hand, could and did intentionally relinquish his right to appeal. In doing so, he assumed the risk that he would be denied the benefit of future legal developments. See, e.g., In re Garner, 2016 WL 6471761, at *2.

Moreover, even if the district court erred in finding that Tennessee aggravated burglary qualified as a crime of violence, its conclusion was “harmless and do[es] not require a remand for re-sentencing.” United States v. Ward, 506 F.3d 468, 476 (6th Cir. 2007). If the record shows that the district court would have imposed its sentence regardless of the Guidelines range, then an error in calculating the Guidelines range is harmless. Molina-Martinez v. United States, — U.S. -, 136 S.Ct. 1338, 1346, 194 L.Ed.2d 444 (2016). Here, in fixing Morrison’s sentence at 96 months’ confinement, the top of Morrison’s Guidelines range, the district court emphasized that the offense was “extremely dangerous and egregious” and that “domestic violence is prevalent” throughout Morrison’s criminal history. The district court stated that had it determined that aggravated burglary was not a crime of violence, it would have varied upward and ended up with the same Guidelines range. Since the district court would have sentenced Morrison to 96 months without regard to whether his conviction for Tennessee aggravated burglary qualifies as a crime of violence, the alleged error in calculating the Guidelines range would not entitle Morrison to resentencing in any event.

In short, McBride does not disturb the general rule that appeal waivers remain enforceable despite changes in the law. In re Garner, 2016 WL 6471761, at *2 (discussing McBride and enforcing an appeal waiver akin to Morrison’s despite a change in law). We discern no reason to depart from that rule.

We accordingly dismiss Morrison’s appeal.

      . The Sentencing Commission recently removed “burglary of a dwelling” from the list of enumerated crimes of violence, but that change did not take effect until August 1, 2016 — four months after the district court imposed its sentence. 81 Fed. Reg. 4741, 4742 (2016).

      . The district court explained:
      At the outset I will say this, I was considering an upward departure and/or an upward variance. That’s because I was facing two different guideline ranges. I’ve now made the decision that the 77 to 96 months is the appropriate sentence given the record before me. And so I’m not going to make an upward departure or variance in that regard.
      Had I ruled the other way on the aggravated burglary, and we had the lower sentencing range, I would have varied upward or taken advantage of 5K2.6 and the use of a firearm, which in this court’s mind is not adequately taken into account with the cross-reference to reckless endangerment. And I would have made an upward variance and/or a departure and the type of sentence that we're talking about and the range would come — have come back into play. So I just want that to be clear for the record.
      R. 50, PID 147.


author: SUTTON, Circuit Judge.

text:
    Mariah WALL, Christopher Boston; Craig Mulhinch, Plaintiffs-Appellants, v. MICHIGAN RENTAL; Zaki Jamil Alawi; ZA Holding Company, LLC, Defendants-Appellees.
    Case No. 16-1988
    United States Court of Appeals, Sixth Circuit.
    Decided and Filed: March 06, 2017

      ON BRIEF: Daniel E. Chapman, Kimberly A. Cochrane, THE TROY LAW FIRM, Troy, Michigan, John J. Cooper, COOPER LAW FIRM, PLLC, Troy, Michigan, for Appellants. Mark A. Hopper, DELOOF, HOPPER, DEVER, WRIGHT & MILLIMAN, PLLC, Ann Arbor, Michigan, for Appellees.
    Before: DAUGHTREY, SUTTON, and DONALD, Circuit Judges.

       This decision was originally filed as an unpublished opinion on March 6, 2017. The court has now designated the opinion for full-text publication.

   SUTTON, Circuit Judge.

What started out as a landlord-tenant dispute has become a lawsuit under the Racketeer Influenced and Corrupt Organizations Act (RICO). Mariah Wall, Christopher Boston, and Craig Mulhinch allege that Zaki Jamil Alawi and his companies committed federal wire, mail, and bank fraud by mishandling the security deposits the plaintiffs provided for their rental units. Because the plaintiffs did not allege a cognizable injury and because the complaint does not contain the “particularity” needed to allege fraud, Fed. R. Civ. P. 9(b), the district court dismissed the federal claims with prejudice. It opted not to exercise its discretionary jurisdiction over the state law claims and dismissed them without prejudice. We affirm.

Between 2012 and 2014, Wall, Boston, and Mulhinch rented rooms from Alawi and his companies: ZA Holding Company and Michigan Rental. Alawi and his companies (together, Alawi), collected roughly $2550 in security deposits from the three plaintiffs when they agreed to lease rooms in his buildings. The plaintiffs lived in Alawi’s properties while attending the University of Michigan. When they moved out, they received their security deposits back, minus small deductions — uncontested by the plaintiffs — that Alawi withheld to cover minor damages to the properties.

What seemed to be an unexceptional, indeed pedestrian, landlord-tenant relationship had a potential wart, say the plaintiffs. Michigan law requires landlords to handle security deposits in certain ways, including by depositing them in a properly regulated financial institution and by providing the address of that institution to the tenant. The plaintiffs came to believe that Alawi did not comply with these requirements.

The plaintiffs sued Alawi on behalf of a putative class of six years’ worth of tenants, alleging violations of RICO and Michigan state law to the tune of $6.6 million. The crux of the complaint is that Alawi violated two requirements of Michigan landlord-tenant law: He failed to place the security deposits in a properly regulated bank, and he failed to include the address of the Michigan Commerce Bank on the lease. The complaint pleads a RICO violation on the grounds that Alawi was not entitled to hold security deposits at all (given these alleged breaches of Michigan law), and that knowingly taking security deposits anyway constituted a pattern of federal wire, mail, and bank fraud. The state-law claims alleged violations of Michigan’s Landlord and Tenant Relationships Act, statutory conversion, common law conversion, violations of Michigan’s Consumer Protection Act, and unjust enrichment.

Alawi moved to dismiss. Before ruling on the motion, the district court (generously) gave the plaintiffs an opportunity to file a supplemental “RICO Case Statement”— a fill-in-the-blank outline of each element of a RICO claim.

But their response did not quell the district court’s concerns about the complaint. The court held that the plaintiffs lacked Article III standing to file the complaint because they failed to articulate any concrete injury. It held that the absence of any “injury to business or property” precluded the plaintiffs from stating a civil RICO claim. R. 26 at 10. And it held that the allegations in the complaint were too vague to meet the particularity requirement of fraud allegations under Civil Rule 9(b). The court dismissed the RICO claim with prejudice and declined to exercise supplemental jurisdiction over the state law claims. It also rejected the defendants’ motion for sanctions as well as the plaintiffs’ request for attorney’s fees due to the burden of having to defend the motion for sanctions.

Plaintiffs appeal two rulings: the dismissal of their RICO claim and the denial of their request for attorney’s fees.

The district court was correct on each front.

The district court had ample grounds for rejecting the RICO claim as a matter of law. First of all, the plaintiffs lack standing to bring the claim. To cross the gateway to an Article III court, a plaintiff must allege: (1) “an injury in fact”; (2) “a causal connection” between the alleged injury and the defendants’ conduct— that “the injury ... [is] fairly traceable to the challenged action ... and not the result of the independent action of some third party not before the court”; and (3) redressability — that the injury will “likely ... be redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (quotations omitted). Bare-bone allegations by themselves will not suffice. See In re Wingerter, 594 F.3d 931, 945 (6th Cir. 2010).. “[A] complaint must state a plausible claim that the plaintiff has suffered an injury in fact” and that the other elements of standing are satisfied. Williams v. Lew, 819 F.3d 466, 472 (D.C. Cir. 2016).

Measured by these requirements, the plaintiffs come up short — in particular because they cannot satisfy the injury-in-fact requirement. They gave Alawi a security deposit before moving in and received the security deposit back upon moving out, minus some unchallenged deductions for damages. That sequence of events does not establish an injury in fact. The plaintiffs got just what Alawi promised in terms of dollars and cents. Nor may one establish an injury in fact merely by identifying a violation of state landlord-tenant law in the absence of actual damage. See Spokeo, Inc. v. Robins, — U.S. —, 136 S.Ct. 1540, 1549, 194 L.Ed.2d 635 (2016). The claimant must connect the violation to a concrete injury in fact. Notably, the Michigan law does not even purport to identify any injury flowing from the alleged violations.

Plaintiffs’ theories of injury, now offered on appeal, confirm this conclusion. One theory: If Alawi was not entitled to take a security deposit, as the complaint alleges, each plaintiff is entitled to a full refund without any deductions for damage. The other theory: The plaintiffs lost the time value of the security deposits, as they could have spent or invested the $800 + that each of them gave to Alawi during the tenancy. But they ignore the reality that they still received back 'just what they gave, consistent with the rental agreement. The idea that a tenant — least of all a college student — could move into a rental apartment without paying a security deposit is quite implausible. And plaintiffs point to no case law suggesting that they could have lived in these apartments without paying a security deposit. All of this takes us back to where we and Judge Cohn started: Plaintiffs have not identified any injury in fact that arose from these allegations.

Second, for comparable reasons, there is nó RICO injury either. In order to bring a RICO claim, plaintiffs must show that illegal racketeering activities “injured [them] in [their] business or property.” 18 U.S.C. § 1964(c); see id. § 1962; Jackson v. Sedgwick Claims Mgmt. Servs., Inc., 731 F.3d 556, 558-59 (6th Cir. 2013) (en banc). In the absence of an injury of any kind, the plaintiffs cannot show an injury within the meaning of the statute. The district court correctly dismissed the claim for this reason too.

Third, the complaint does not satisfy the pleading requirements of Civil Rule 9(b). The plaintiffs point to wire, mail, and bank fraud as Alawi’s predicate acts of “racketeering activity” under RICO. 18 U.S.C. § 1961(1). To file a fraud claim, a plaintiff must state with “particularity the circumstances constituting fraud.” Fed. R. Civ. P. 9(b). To meet this requirement, the plaintiff must allege (1) “the time, place, and content of the alleged misrepresentation,” (2) “the fraudulent scheme,” (3) the defendant’s fraudulent intent, and (4) the resulting injury. United States ex rel. Bledsoe v. Cmty. Health Sys., Inc., 501 F.3d 493, 504 (6th Cir. 2007); see United States ex rel. Hirt v. Walgreen Co., 846 F.3d 879, 880-81 (6th Cir. 2017).

For present purposes, the complaint has two flaws. There is no allegation of a misrepresentation, and the alleged “fraudulent scheme” is not “plausible.” See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The plaintiffs allege that, at some point after they signed the lease agreements, Alawi moved their security deposits from the Michigan Commerce Bank. And the plaintiffs say that Alawi represented, on the lease agreements, that the security deposits would be deposited at the Michigan Commerce Bank. But that would be a misrepresentation only if Alawi never put the deposits there, not if he moved the deposits around later (as Michigan law permits). See Mich. Comp. Laws § 554.604.

The complaint and RICO case statement omit any claim that Alawi never put the deposits where he said he would. All that the plaintiffs say is that their security deposits “were or were not deposited at Michigan Commerce Bank.” R. 1 at 13. But that’s not an allegation of a misrepresentation. It’s not indeed a factual claim at all. It’s a statement of two contradictory facts, making it a statement of nothing at all under a venerable principle of logic— the law of the excluded middle. Aristotle, Metaphysics bk. IV, pt. 7, available at http://classics.mit.edu /Aristotle/metaphy-sies.4.iv.html (“[Tjhere cannot be an intermediate between contradictories.”). In the absence of any factual assertion that Alawi did something other than what he said he would, the plaintiffs cannot describe the “time, place, and content of the alleged misrepresentation” as Civil Rule 9(b) requires. Bledsoe, 501 F.3d at 504.

Making matters worse for the plaintiffs, the alleged “fraudulent scheme” is implausible on its face. Twombly, 550 U.S. at 570, 127 S.Ct. 1955. The apparent idea is that Alawi knew he had not complied with the Michigan landlord-tenant laws, collected security deposits anyway, then commingled the security deposits with his own funds. What’s implausible about this is that the only concrete violation of the Michigan Landlord and Tenant Relationships Act that plaintiffs have pointed to is Alawi’s failure to include the address of the Michigan Commerce Bank on the lease document. Mich. Comp. Laws § 554.603 (“A landlord shall not require a security deposit unless he notifies the tenant ... [of] the name and address of the financial institution” where he’ll place the deposit). Even if this omission violated the letter of Michigan law, it is beyond us how this omission could have misled anyone, much less amounted to a fraudulent scheme. It’s undisputed that the Michigan Commerce Bank was a properly regulated financial institution with only one location.

Nor can we see what Alawi could have gained from the omission. He collected security deposits in permissible amounts, used them in permissible ways, and returned them on time and without any contested deductions. See Mich. Comp. Laws § 554.604 (“A landlord may use the moneys so deposited for any purposes he desires if he deposits with the secretary of state a cash bond or surety bond.... ”). That’s not much of a “scheme.” That Alawi intended to use this trivial omission to defraud his tenants into paying security deposits to which he was not entitled is not even “conceivable,” much less “plausible.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955.

One last thing. The plaintiffs request attorney’s fees because they prevailed in one way before the district court: The court (kindly) did not grant the defendants’ motion for sanctions against the plaintiffs. Fed. R. Civ. P. 11(c)(2). That is the one difficult issue in this case. It’s difficult not because of anything the district court did. It of course quite properly denied fees to the plaintiffs on this ground, all way within its sound discretion. B & H Med., L.L.C. v. ABP Admin., Inc., 526 F.3d 257, 269 (6th Cir. 2008). What’s difficult is whether we should sua sponte impose sanctions on the plaintiffs for bringing such a frivolous appeal. We will not impose such sanctions today. But plaintiffs’ counsel would be well advised to consider more carefully in the future what amounts to a colorable ground for appeal and what does not.

For these reasons, we affirm.