Search & seizure; Motion to suppress evidence; Consent to search a wallet during a traffic stop; Schneckloth v Bustamonte; Sentencing; Procedural reasonableness; Whether the intended loss was mistakenly used in calculating the offense level rather than the actual loss; United States v Banks (3d Cir); Substantive reasonableness; Effect of a within-Guidelines sentence; Consideration of the 18 USC § 3553(a) factors & the individual characteristics of defendant & his offenses

The court held that the district court did not clearly error by ruling that defendant-Tellez failed to show a police officer’s check of his wallet, which contained incriminating evidence, was not consensual where he handed the wallet to the officer, thus giving nonverbal consent. It also rejected his sentencing challenges. He handed over the wallet during a routine traffic stop. He was charged with conspiracy to defraud the U.S., bank fraud, and identity theft. He moved to suppress the evidence, arguing he did not voluntarily consent to the search. The district court denied the motion. Tellez pled guilty, reserving the right to appeal the suppression ruling. The court found no clear error in the district court’s conclusion that he “voluntarily consented to the search of his wallet when he handed it to the officer.” He admitted he consented to a search of his vehicle. After that search, the officer asked him if he “had his wallet. Tellez indicated that he did, first by reaching for it, and then by handing the item over to the officer—telltale signs of a consented-to search.” The court rejected Tellez’s claim that, “‘Do you have your wallet,’ and ensuing instruction, ‘Let me see it for a moment’ failed to reflect the officer’s intent to search the item.” Tellez also challenged his sentence. He objected to the use of the intended loss to calculate his Guidelines offense level. While he was found with only 3 fraudulent gift cards, he also had a thumb drive containing information regarding 300 other debit and credit card accounts. The cards in his “wallet had been used to spend or withdraw an average of $1,400 per card.” The probation office calculated the intended loss by multiplying the 303 accounts by the $1,400 average. On appeal, Tellez argued “the district court mistakenly used intended (rather than actual) loss in calculating his offense level.” But at sentencing he asserted “the amount of intended loss should be $500 per account, not $1,400. He did not make the point he makes now—that it was error to use the intended loss metric altogether.” The court held that he failed to show plain error. “Even assuming the district court erred by using intended loss to derive Tellez’s sentencing range, any such error was neither obvious nor clear.” While the Third Circuit held in Banks that the loss to be used is limited to actual loss, as out-of-circuit precedent, this did “little to establish that the use of intended loss is ‘clearly contrary to the law [in this Circuit].’” His argument failed under existing Sixth Circuit law. The court also rejected his substantive reasonableness challenge, finding “the district court reasonably arrived at a sentence of 70 months, the bottom of the Guidelines range.” Affirmed.