United States v. Edwin Peavy

509 F. App'x 494
CourtCourt of Appeals for the Sixth Circuit
DecidedDecember 28, 2012
Docket11-3297, 11-4236, 11-4240
StatusUnpublished
Cited by8 cases

This text of 509 F. App'x 494 (United States v. Edwin Peavy) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Edwin Peavy, 509 F. App'x 494 (6th Cir. 2012).

Opinion

CLAY, Circuit Judge.

In this consolidated appeal, Defendants Andre Reese and Edwin Peavy appeal their sentences after pleading guilty to charges relating to a conspiracy to commit wire fraud and aggravated identity theft in violation of 18 U.S.C. §§ 1349 & 1028A. Peavy also appeals his conviction by a jury of one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). For the reasons that follow, we DISMISS Reese’s appeal as barred by the appeal waiver in his plea agreement, and we AFFIRM Peavy’s conviction and sentence.

BACKGROUND

From August 2009 through April 1, 2010, nine individuals, including Reese and Peavy, participated in a conspiracy to obtain the personal information of consumers who held credit cards associated with various large retailers. One of the eo-conspir-ators not part of this appeal, Dimorio McDowell, obtained account holders’ names, addresses, dates of birth, social security numbers, and credit card numbers, and used this information to open credit card accounts in other people’s names, add co-conspirators’ names as authorized users to other accounts, or make changes to the credit limits on these accounts. McDowell sent the fraudulently-obtained personal information to his co-conspirators in Cleveland, Ohio. The Cleveland conspirators then visited retailers and used the credit cards to purchase goods and merchandise, some of which *497 they kept and some of which they sold. Reese admitted in his plea agreement that he and his co-conspirators made 34 unauthorized purchases at various retailers in the Cleveland area, and that these fraudulent purchases totaled $219,602.88.

On April 1, 2010, at approximately 7:00 a.m., federal and local law enforcement officers planned to execute an arrest warrant for Peavy at his mother’s residence in Cleveland, where Peavy was known to reside. Detective Ken Mifflin of the Stow Police Department prepared the plan for executing the arrest warrant, which included a review of Peavy’s criminal history. All of the officers on the arrest team were aware of Peavy’s criminal background. When the arrest team approached the house, they observed three vehicles parked in the driveway, including the vehicle that Peavy often drove. Detective Mifflin testified that he heard the voices of at least two people inside the house when he approached the side door.

Other members of the arrest team began knocking loudly on the front door and shouting “Police.” Approximately two minutes passed before Peavy came to the door; during that time, an officer observed someone peeking through the blinds at the front of the house. Peavy stated that he needed a key to open the front door, and when he finally opened it, he was immediately ordered by FBI Special Agent Steve Sloan to lay on the ground. Peavy was then placed in handcuffs and taken to the front porch. Either while Peavy was lying on the floor inside the house or just after he was brought outside, Sloan asked him if there was anyone else in the house, and Peavy responded that there was one other person inside. Sloan asked him if he had any weapons in the house, and Peavy responded that there was a shotgun underneath the couch cushions. There was conflicting testimony as to whether Peavy also stated that the shotgun belonged to him.

After being told that there was at least one more person and a weapon inside the house, the officers conducted a protective sweep of the residence. The officers found the other man that Peavy had told them about, Otez Hutson, who informed them that he had discarded a loaded handgun in the kitchen trashcan as the police arrived. Peavy was then taken to be interviewed by the FBI. He was read his Miranda rights prior to that interview, but at no time prior to his formal interview was Peavy advised of his constitutional rights. At his first interview, the questioning focused exclusively on Peavy’s participation in the identity theft conspiracy, and no questions were asked about his possession of the firearm.

On April 27, 2010, nine defendants, including Reese and Peavy, were charged in a 27-count indictment alleging violations of various federal criminal statutes, including conspiracy to commit wire fraud, access device fraud, and aggravated identity theft. On November 9, 2010, while the identity theft case was still pending, Peavy was separately indicted on one count of being a felon in possession of a firearm.

On December 6, 2010, Reese pleaded guilty, pursuant to a written plea agreement, to one count of conspiracy to commit wire fraud in violation of 18 U.S.C. § 1349 and one count of aggravated identity theft in violation of 18 U.S.C. § 1028A. The other counts against Reese were dismissed on motion of the government. On March 8, 2011, the district court conducted a sentencing hearing, at which it sentenced Reese to 92 months’ imprisonment on the conspiracy count and 24 months’ imprisonment on the identity theft count, with the sentences to run consecutively, for a total term of imprisonment of 116 months. The district court also ordered restitution in *498 the amount of $219,602.88. On March 28, 2011, Reese filed a timely notice of appeal.

Also on December 6, 2010, Peavy pleaded guilty, pursuant to a written plea agreement, to one count of conspiracy to commit wire fraud, but his firearms charge was set for a jury trial. On January 6, 2011, Peavy filed a motion to suppress the statements he made during his arrest, as well as the firearm that was recovered as a result of his statements. The district court conducted a suppression hearing and denied Peavy’s motion. On August 23, 2011, a jury convicted Peavy of one count of being a felon in possession of a firearm. The district court consolidated the two charges against Peavy for purposes of sentencing. The court conducted a sentencing hearing on October 26, 2011, and sentenced Peavy to 100 months’ imprisonment for the two charges, with the sentences to run concurrently. Peavy filed timely notices of appeal.

DISCUSSION

On appeal, Reese challenges the district court’s amount of loss finding and its restitution order, arguing that they were not properly calculated. Peavy argues that the district court’s denial of his motion to suppress should have been granted because of a violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and, that his conspiracy sentence was procedurally and substantively unreasonable.

A. Reese’s Appeal Waiver

We review the district court’s amount of loss finding for clear error and consider the methodology behind it de novo. United States v. Poulsen, 655 F.3d 492, 512 (6th Cir.2011). The amount of loss calculation for purposes of the United States Sentencing Guidelines is distinct from the district court’s decision to order restitution.

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Bluebook (online)
509 F. App'x 494, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-edwin-peavy-ca6-2012.