NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________ No. 19-3562 _____________ UNITED STATES OF AMERICA v. FENDI BROOKS, Appellant _____________ On Appeal from the District Court of the Virgin Islands (D.C. No. 3-18-cr-00042-002) District Judge: Honorable Curtis V. Gomez _____________ Submitted Pursuant to Third Circuit L.A.R. 34.1(a) December 8, 2020 _____________ Before: SMITH, Chief Judge, CHAGARES and MATEY, Circuit Judges (Opinion filed: December 29, 2020) ____________ OPINION* ____________ * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. CHAGARES, Circuit Judge. Fendi Brooks pled guilty to one count of conspiracy to possess with intent to distribute a controlled substance. The District Court sentenced her to seventy-seven months of imprisonment. Brooks now appeals her judgment of conviction. For the following reasons, we will affirm. I. We write solely for the parties’ benefit, so our summary of the facts is brief. In September 2018, Brooks and her co-defendant, Ngoc Yen Nguyen, travelled together on a Delta Air Lines, Inc. (“Delta”) flight from the Virgin Islands to Atlanta, Georgia. Upon arriving in Georgia, Brooks and Nguyen presented themselves to a U.S. Customs and Border Protection (“CBP”) officer to pay duties on alcohol they had purchased in the Virgin Islands. The CBP officer took an x-ray scan of their luggage and discovered thirteen bricks of cocaine. An Assistant Special Agent in Charge from Homeland Security Investigations (“HSI”) — which is part of the Department of Homeland Security (“DHS”) — subsequently issued several administrative subpoenas to companies including Delta and Sprint Corporation (“Sprint”). The subpoena issued to Delta (the “Delta Subpoena”) requested flight manifests, flight and ticketing information, and the transaction history for Brooks and Nguyen. The subpoena issued to Sprint (the “Sprint Subpoena”) requested subscriber information and call information for a specific phone number. Brooks was charged by criminal information with two counts of controlled substance violations on October 23, 2018. A few weeks later, on November 7, 2018, 2 Attorney General Jefferson B. Sessions resigned from office, and the President named Matthew Whitaker, who had been the Attorney General’s Chief of Staff, as the Acting Attorney General. 1 Brooks filed a motion to dismiss the information six days later on the ground that Whitaker’s designation violated federal law and the Appointments Clause and thus rendered her prosecution unlawful. Before the District Court decided Brooks’s motion to dismiss, the grand jury returned an indictment in December 2018, which added a third controlled substance charge. Brooks filed a motion to suppress evidence obtained under the Delta and Sprint Subpoenas that same day. The District Court held a hearing on the pending motions on March 7, 2019. Whitaker was no longer the Acting Attorney General by that time. The Government represented that it intended to use only the subscriber information and phone log, not the location data, that it received from Sprint. The District Court concluded that Brooks lacked standing to challenge the subpoenas and denied her motion to suppress. The ...
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