United States v. Tony Petrey
661 F. App'x 369
| 6th Cir. | 2016Background
- Police entered an abandoned Kentucky trailer on tip of drug activity; found Tony Petrey with meth, heroin, pills, scales, and cash; Mary Cureton was present and later arrested after a warrant check.
- Cureton initially minimized involvement but in a later recorded interview admitted knowledge of and participation in Petrey’s interstate methamphetamine operation (MoneyGrams to California “Quick,” receiving packages, acting as lookout, loaning money, counting/repackaging, one $50 sale).
- Petrey cooperated, made recorded calls to Larry Gutierrez ("Quick"), and an intercepted USPS package contained ~30 grams of meth.
- Co-defendants: Sheppard found hiding at David Powers’s home with loaded guns and later admitted to a 2012 shooting; Sheppard and Petrey pleaded guilty and received long prison terms; Cureton was tried, retried, convicted of conspiracy to distribute meth, and sentenced to 90 months consecutive to state time.
- Appellate issues: Cureton challenged sufficiency of evidence, certain evidentiary rulings, jury instructions, cumulative error, and sentence calculation/role adjustment; Sheppard and Petrey challenged procedural and substantive reasonableness of their sentences.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for Cureton’s conspiracy conviction | Cureton: evidence shows only association with Petrey, no proof of agreement or participation | Government: tape-recorded admissions + Petrey’s testimony show knowledge, agreement, overt acts (lookout, loans, counting, accompanying pickups) | Conviction upheld — evidence sufficient under Jackson standard |
| Admission of heroin-use/trafficking testimony (Rule 404(b)) | Cureton: testimony about heroin was improper other-acts evidence and prejudicial | Government/district court: heroin facts were intrinsic/res gestae background to charged meth conspiracy | No abuse of discretion; admission harmless given instruction and background context |
| Jury instructions on overt act and requested buyer-seller instruction | Cureton: sua sponte overt-act instruction created bias; requested buyer-seller instruction should have been given | Court: clarified that overt act not required (accurate law per Shabani); buyer-seller instruction unsupported by record | Instructions proper; no prejudice; refusal to give buyer-seller instruction not reversible |
| Sentencing challenges (Cureton: Guidelines, role, drug quantity, 3553(a) factors) | Cureton: earlier incorrect PSR should control; minimal/minimal-participant, purity not proven, court undervalued mitigation | Government/Court: drafting error explained; base level supported by conservative drug-quantity estimate and admissions; minor (not minimal) role supported by facts; court considered §3553(a) factors | Sentence affirmed as procedurally and substantively reasonable |
| Sheppard firearm enhancement and reasonableness | Sheppard: enhancement for use of firearm in connection with another felony improper because of self-defense and hearsay at sentencing | Court: facts do not support stand-your-ground; hearsay admissible at sentencing with indicia of reliability; enhancement appropriate | Enhancement and within-Guidelines sentence upheld |
| Petrey downward departure & substantive reasonableness | Petrey: district court should have given greater downward departure and credit cooperation/drug dependency | Court: extent of departure is unreviewable on appeal; court considered cooperation and §3553(a) factors in imposing 200 months | Sentence affirmed as reasonable |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (U.S. 1979) (standard for reviewing sufficiency of the evidence)
- United States v. Shabani, 513 U.S. 10 (U.S. 1994) (drug conspiracy statute does not require proof of an overt act)
- Gall v. United States, 552 U.S. 38 (U.S. 2007) (abuse-of-discretion standard for sentencing reasonableness review)
- United States v. Pearce, 531 F.3d 374 (6th Cir. 2008) (presumption of reasonableness for within-Guidelines sentences)
- United States v. Pritchett, 749 F.3d 417 (6th Cir. 2014) (defendant’s burden when challenging sufficiency of the evidence)