United States v. Yanier Tellez Crespo, 86 F.4th 1148

Background

Trooper stopped Yanier Tellez for lane drifting; Tellez consented to a vehicle search at the scene.
After the vehicle search, the officer asked, “Do you have your wallet?” and then said, “Let me see it for a moment”; Tellez handed the wallet to the officer.
Officer found three Visa gift cards with five-digit numbers written on the back; he asked to swipe them, Tellez initially agreed but then said “I don’t give you permission”; the officer swiped them anyway, revealing altered magnetic strips.
Tellez was arrested and indicted for conspiracy, bank fraud, and aggravated identity theft; he moved to suppress the wallet/card evidence as involuntary consent; district court denied suppression; Tellez pleaded guilty preserving the suppression issue for appeal.
At sentencing, Probation calculated intended loss by multiplying 303 accounts (3 cards + ~300 on a thumb drive) by $1,400 (average loss per card); Tellez argued for $500 per account as in a co‑conspirator’s case; district court adopted the $1,400 multiplier and sentenced Tellez to 70 months (bottom of the Guidelines range).
On appeal the Sixth Circuit affirmed both the denial of suppression (no clear error that consent was voluntary) and the sentence (no procedural or substantive error; Sixth Circuit precedent permits intended‑loss calculation).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Tellez voluntarily consented to a search of his wallet	Tellez: handing the wallet followed an imperative command (“Let me see it”), so handing it over was mere acquiescence, not voluntary, unequivocal consent	Govt: Tellez’s prior consent to search the car, his calm/cooperative demeanor, reaching for and handing over the wallet, and later conduct show voluntary consent	Affirmed: District court’s finding of voluntary consent not clearly erroneous; totality of circumstances supports consent
Whether use of intended loss (vs. actual loss) was legal in Guidelines calculation	Tellez: argued at sentencing for lower per‑account figure ($500) and on appeal contends intended‑loss should not have been used (forfeited; raised now)	Govt: Sixth Circuit precedent (and most circuits) treat "loss" under §2B1.1 to include intended loss; sentencing court properly applied intended‑loss measure	Affirmed: Issue forfeited for anything beyond the specific objection; even if raised, using intended loss is consistent with Sixth Circuit precedent so no plain error
Substantive reasonableness of the 70‑month sentence (variance request and disparity with co‑conspirator)	Tellez: requested downward variance for acceptance, late pleading, alleged overstated loss, and sentencing disparity with co‑conspirator	Govt: Sentence is within Guidelines; district court considered §3553(a) factors, acceptance credit given, and national disparity not shown	Affirmed: Sentence within Guidelines presumed reasonable; district court did not abuse discretion

Key Cases Cited

Schneckloth v. Bustamonte, 412 U.S. 218 (U.S. 1973) (voluntariness of consent assessed under totality of the circumstances)
Mendenhall v. United States, 446 U.S. 544 (U.S. 1980) (knowledge of right to refuse is relevant to consent analysis)
Bumper v. North Carolina, 391 U.S. 543 (U.S. 1968) (acquiescence to claim of lawful authority is not voluntary consent)
United States v. Carter, 378 F.3d 584 (6th Cir. 2004) (en banc) (consent can be nonverbal; totality‑of‑circumstances review)
United States v. Worley, 193 F.3d 380 (6th Cir. 1999) (mere acquiescence to authority insufficient for voluntary consent)
United States v. You, 74 F.4th 378 (6th Cir. 2023) ("loss" under §2B1.1 includes intended loss per Sixth Circuit precedent)
United States v. Banks, 55 F.4th 246 (3d Cir. 2022) (contrary Third Circuit view limiting "loss" to actual loss)
Gall v. United States, 552 U.S. 38 (U.S. 2007) (standards for procedural and substantive reasonableness of sentences)
United States v. Bah, 794 F.3d 617 (6th Cir. 2015) (swiping a card held by an officer is not a Fourth Amendment search)