NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT AUG 18 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 09-10387
Plaintiff-Appellee, D.C. No. 1:07-cr-00054-OWW-1
v.
MEMORANDUM*
ROGER KEITH REMY,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
Oliver W. Wanger, District Judge, Presiding
Argued and Submitted July 13, 2010
San Francisco, California
Before: W. FLETCHER and M. SMITH, Circuit Judges, and TODD, Senior
District Judge.**
Roger Keith Remy appeals the district court’s denial of his motion to
suppress and the calculation of his restitution amount. We have jurisdiction under
28 U.S.C. § 1291. The parties are familiar with the facts of the case, so we repeat
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable James Dale Todd, Senior United States District Judge
for the Western District of Tennessee, sitting by designation.
them here only to the extent necessary to explain our decision. We affirm the
denial of the motion to suppress and reverse and remand for a proper determination
of the amount of restitution.
Under Miranda v. Arizona, 384 U.S. 436 (1966), a suspect must be advised
of his Fifth Amendment rights when “there has been such a restriction on a
person’s freedom as to render him ‘in custody.’” Stansbury v. California, 511 U.S.
318 (1994) (some internal quotation marks omitted). The court must look to the
totality of the circumstances that might “affect[ ] how a reasonable person in that
position would perceive his or her freedom to leave.” Id. at 322, 325. A district
court’s “in custody” determination is a “mixed question of law and fact warranting
de novo review. ” United States v. Kim, 292 F.3d 969, 973 (9th Cir. 2002).
However, “[t]he factual findings underlying the district court’s decision . . . are
reviewed for clear error.” Id.
Remy argues that the district court erred in denying his motion to suppress
by finding that he was not in custody at the time that he made statements to
investigators. The district court relied on the factors set forth in United States v.
Craighead, 539 F.3d 1073, 1084 (9th Cir. 2008), i.e., “(1) the number of law
enforcement personnel and whether they were armed; (2) whether the suspect was
at any point restrained, either by physical force or by threats; (3) whether the
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suspect was isolated from others; and (4) whether the suspect was informed that he
was free to leave or terminate the interview, and the context in which any such
statements were made,” while noting that ultimately the decision rested on the
totality of the circumstances. The district court then determined that, under the
totality of the circumstances (in-home questioning, Remy’s telephonic contact with
his wife during the interview, the presence of only two agents, the agents did not
show their weapons, and a two hour interview), Remy was not in custody when he
made the statements. We agree with that determination.
Remy also appeals the amount of the restitution that was set as part of his
sentence. Remy argues that the presentence report did not comply with 18 U.S.C.
§ 3664(a), which requires “to the extent practicable, a complete accounting of the
losses to each victim, any restitution owed pursuant to a plea agreement, and
information relating to the economic circumstances of each defendant.”
The legality of a restitution order is reviewed de novo, unless it is within the
statutory bounds, in which case we review for abuse of discretion. See United
States v. Phillips, 367 F.3d 846, 854 (9th Cir. 2004). When the defendant fails to
object to the restitution order in the district court, as in the present case, the order is
reviewed for plain error. See United States v. Bright, 353 F.3d 1114, 1120 (9th
Cir. 2004).
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The government acknowledges that it was plain error for the district court to
issue a restitution order in the amount of $220,618. Because it is undisputed that
the amount of restitution set by the district court is not accurate, a reversal and
remand is necessary for a proper accounting in compliance with 18 U.S.C. §
3664(a). Accordingly, we vacate the restitution order and remand for
reconsideration of the restitution amount.
AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
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