USA v. Kevin Reed
Filing
Filed opinion of the court by Judge Hamilton. AFFIRMED. Diane P. Wood, Chief Judge, concurring in part and dissenting in part; William J. Bauer, Circuit Judge and David F. Hamilton, Circuit Judge. [6847462-1] [6847462] [16-3428]
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16‐3428
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
KEVIN REED,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 13 CR 347‐1 — Ronald A. Guzmán, Judge.
____________________
ARGUED MAY 25, 2017 — DECIDED JUNE 13, 2017
____________________
Before WOOD, Chief Judge, and BAUER and HAMILTON, Cir‐
cuit Judges.
HAMILTON, Circuit Judge. In the midst of his fraud trial, ap‐
pellant Kevin Reed decided to plead guilty. He was sentenced
within the applicable Sentencing Guideline range to sixty‐
four months in prison. In this appeal, he argues that his guilty
plea was involuntary and that the sentencing judge failed to
address his principal argument in mitigation, that a prison
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sentence would impose an extraordinary hardship on his
family. We affirm.
I. Factual and Procedural Background
In 2008, Kevin Reed operated Lambert Clark Group and
affiliated companies that he claimed were able to make loans
of between $50 million and $1 billion to entrepreneurs and
start‐ups. Reed charged would‐be clients advance fees of be‐
tween $10,000 and $50,000 to apply for these loans. His claims
were lies: Reed’s companies had no funds to lend, and while
Reed and his co‐defendants took in over $200,000 from six
would‐be clients, they never closed a loan.
Reed was indicted on six counts of wire fraud in connec‐
tion with the transmissions of the advance fees. Reed pled not
guilty and his case went before a jury. On the morning of the
fourth day of trial, though, Reed’s lawyer told the court that
Reed wanted to enter a “blind” guilty plea. Per Federal Rule
of Criminal Procedure 11, the district judge placed Reed un‐
der oath, explained his rights to him, and discussed with him
his understanding of the charges and the consequences of
pleading to them. Ultimately, the district judge accepted the
guilty pleas to all charges.
About four months later, and before sentencing, Reed
moved to substitute attorneys. His new attorney then moved
to withdraw the plea, arguing that Reed’s trial attorney’s inef‐
fective representation at trial had coerced Reed to plead
guilty. The district court denied the motion, emphasizing both
that Reed had said under oath at his plea colloquy that he was
satisfied with his lawyer and that Reed’s claims of ineffective‐
ness were vague. The case proceeded to sentencing.
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Reed’s sentencing memorandum argued for a below‐
guidelines sentence of probation, emphasizing that his wife
(who has a disabling illness) and three children (one of whom
also has a disability) depend on him for financial and other
forms of support. In a lengthy sentencing hearing, the court
heard from Reed’s victims and Reed’s family. The court deter‐
mined that the Sentencing Guidelines advised a sentence of
between fifty‐seven and seventy‐one months incarceration.
The district judge elected to follow that advice and sentenced
Reed to sixty‐four months in prison.
II. Analysis
We address first Reed’s argument that he should have
been allowed to withdraw his guilty plea and second his ar‐
gument that the judge did not adequately address his mitiga‐
tion argument based on his family circumstances.
A. Guilty Plea
A defendant may be allowed to withdraw his guilty plea
after the court accepts it but before sentencing if he “can show
a fair and just reason for requesting the withdrawal.” Fed. R.
Crim. P. 11(d)(2)(B). Whether to allow withdrawal is “left to
the sound discretion of the district court,” and reversals are
rare. United States v. Graf, 827 F.3d 581, 583–84 (7th Cir. 2016)
(citations omitted). A motion to withdraw a guilty plea is par‐
ticularly unlikely to have merit “if it seeks to dispute [the de‐
fendant’s] sworn assurances to the court.” Id. at 584.
Appropriate grounds to withdraw a plea include the de‐
fendant’s actual or legal innocence, or the involuntary or un‐
knowing nature of the plea. United States v. Mays, 593 F.3d 603,
607 (7th Cir. 2010). Reed argues his plea was involuntary. His
theory is that his trial lawyer was so unprepared for trial that
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he had no alternative but to plead guilty. That claim contra‐
dicts Reed’s sworn testimony in his plea colloquy. The district
judge asked Reed if he was “fully satisfied with the counsel,
representation, and advice” he had been given. Reed replied,
“Yes. He’s excellent.” Reed also confirmed that no one had
threatened him or attempted “in any way” to force him to
plead, and that he was pleading guilty of his “own free will”
because he was actually guilty.
Those sworn statements were not “trifles” that Reed could
just “elect to disregard.” United States v. Stewart, 198 F.3d 984,
987 (7th Cir. 1999). “A believable claim that the plea had been
coerced … would demonstrate a good reason for deceit,” id.,
and ineffective assistance of counsel can support such a claim.
Graf, 827 F.3d at 584; see also United States v. Weeks, 653 F.3d
1188, 1205–06 (10th Cir. 2011) (defendant’s habeas petition al‐
leged facts entitling him to an evidentiary hearing when it al‐
leged, in part, that counsel’s lack of preparation “pushed him”
to enter a guilty plea); United States v. Moore, 599 F.2d 310, 313
(9th Cir. 1979) (“A plea entered because counsel is unprepared
for trial is involuntary.”). But the district court did not believe
Reed’s claim that his lawyer was ineffective because that claim
was so vague.
We agree. Reed provided an affidavit explaining his claim.
His affidavit refers to “[t]ens of thousands of documents” not
used as exhibits and “dozens” of potential witnesses not in‐
terviewed, without identifying one such document or wit‐
ness, let alone explaining their importance. The affidavit re‐
fers to disputing the testimony of an unidentified “key gov‐
ernment witness” and to failures to use unspecified “thou‐
sands of documents” during unidentified cross‐examina‐
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tions. The affidavit also does not explain why Reed men‐
tioned none of this in his plea colloquy. The affidavit says only
that his counsel “prodded” him “to say yes.” Cf. United States
v. Jones, 168 F.3d 1217, 1220 (10th Cir. 1999) (“If Defendant was
being coerced into pleading guilty, he should have so stated
to the district court. He should have asked the court to ap‐
point competent counsel and to continue his trial date.”).
Reed bolsters his argument with a Proposed Defense Trial
Plan his trial lawyer filed while seeking to replace Reed’s ear‐
lier counsel. That plan laid out a timeline for completing the
tasks Reed’s affidavit says were not completed (reviewing un‐
identified documents, interviewing unspecified witnesses,
etc.). The gap between promises and action shows, Reed be‐
lieves, that his trial lawyer was unprepared. But to show inef‐
fective assistance of counsel, a defendant must show that
counsel’s performance was objectively unreasonable. Graf, 827
F.3d at 584 (citations omitted). What Reed wanted from his
lawyer or even what his lawyer promised him does not an‐
swer that question, nor does the original plan show anything
about how plans and expectations may have changed by the
time of trial.
The court found that Reed’s vague claims about his lawyer
were not “fair and just” grounds to withdraw his plea. The
district court did not abuse its discretion in denying leave to
withdraw the guilty plea entered in the midst of trial. See
Jones, 168 F.3d at 1221 (affirming refusal to permit plea with‐
drawal based on conclusory claim that counsel was unpre‐
pared); United States v. Jones, 381 F.3d 615, 618 (7th Cir. 2004)
(motion to withdraw plea can be denied without hearing if
the allegations in its support are “mere conclusions”), quoting
United States v. Redig, 27 F.3d 277, 280 (7th Cir. 1994).
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B. Argument in Mitigation
A sentencing court is required to address the parties’ prin‐
cipal arguments at sentencing, and where a defendant’s prin‐
cipal argument is “not so weak as not to merit discussion,”
the court must “explain its reason for rejecting that argu‐
ment.” United States v. Schroeder, 536 F.3d 746, 755 (7th Cir.
2008), quoting United States v. Miranda, 505 F.3d 785, 792 (7th
Cir. 2007). This is a procedural requirement “designed to en‐
sure that the judge has in fact considered the principal issues
affecting the sentencing decision.” United States v. Donelli, 747
F.3d 936, 940 (7th Cir. 2014). It also allows the reviewing court
to satisfy itself that the judge considered those issues. Id. at
939.
Our cases applying this procedural requirement do not
draw a bright line to tell district judges when they have said
enough, but “we try to take careful note of context and the
practical realities of a sentencing hearing. District judges need
not belabor the obvious.” United States v. Castaldi, 743 F.3d 589,
595 (7th Cir. 2014), quoting United States v. Gary, 613 F.3d 706,
709 (7th Cir. 2010). To avoid issues about the adequacy of an
explanation, “we encourage sentencing courts to inquire of
defense counsel whether they are satisfied that the court has
addressed their main arguments in mitigation.” United States
v. Garcia‐Segura, 717 F.3d 566, 569 (7th Cir. 2013); see also, e.g.,
Donelli, 747 F.3d at 940 (finding defense waived argument
about adequacy of sentencing judge’s explanation). That did
not happen here.
The Sentencing Guidelines advise that a defendant’s fam‐
ily ties and responsibilities are not ordinarily relevant in de‐
ciding whether to depart from the guideline range. See
U.S.S.G. § 5H1.6. Every sentencing judge knows that a prison
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sentence will impose hardships on an offender’s family. Every
judge has heard heart‐rending accounts of those hardships.
The most common response is to acknowledge those hard‐
ships and to remind both the offender and his family that the
hardship was caused by the offender’s decision to commit the
crimes for which he is being sentenced.
Nevertheless, truly extraordinary family circumstances
can provide a legitimate basis for a lighter or below‐guideline
sentence, whether under § 5H1.6 or the sentencing court’s
broader discretion and responsibility under 18 U.S.C.
§ 3553(a). See Schroeder, 536 F.3d at 755. Reed asked the district
court for a below‐guideline sentence on that basis, emphasiz‐
ing his wife’s and one son’s disabilities, that he has two other
children, and that he was the family’s only financial support.
One can argue how extraordinary these circumstances ac‐
tually were, but the argument deserved to be addressed, es‐
pecially since it was Reed’s lead argument at sentencing. The
district judge was therefore required to address it, although
he could do so briefly or even “implicitly” or “imprecisely.”
United States v. Diekemper, 604 F.3d 345, 355 (7th Cir. 2010);
United States v. Poetz, 582 F.3d 835, 839 (7th Cir. 2009) (judge’s
discussion at sentencing, although “perhaps imprecise,” un‐
dermined claim that judge “overlooked or ignored” defend‐
ant’s “family‐hardship argument”); Schroeder, 536 F.3d at 755
(“A short explanation will suffice where the context and rec‐
ord make clear the reasoning … .”). The key question is
whether the reviewing court can have “confidence in the
judge’s considered attention to the factors in this case.” United
States v. Cunningham, 429 F.3d 673, 679 (7th Cir. 2005).
Standing alone, the transcript of the sentencing hearing
does not give us that confidence. The judge discussed how
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Reed’s family reflected his character, noting that he had been
a “wonderful” father, husband, and brother, which is often
true in such white‐collar fraud cases. But the judge did not
mention the family’s particular medical or financial needs or
acknowledge the hardships imprisonment would create for
them. Even viewing the hearing as a whole, we are not con‐
vinced that the judge addressed this point sufficiently in the
hearing. Cf. Castaldi, 743 F.3d at 596 (judge adequately ad‐
dressed mitigation argument when he mentioned it at hear‐
ing’s start, engaged with defense counsel’s final argument em‐
phasizing issue, and said he had considered all mitigation ar‐
guments).
The best time to address principal mitigation arguments is
in the sentencing hearing itself. See 18 U.S.C. § 3553(c) (“The
court, at the time of sentencing, shall state in open court the
reasons for its imposition of the particular sentence … .”).
That allows the court to obtain defense counsel’s input on
whether those arguments were addressed adequately and as‐
sures us that important mitigation arguments were not ration‐
alized away after the fact. That said, we have also “encour‐
aged district courts to commit their sentencing decisions to
paper,” and we read a district court’s written statement of rea‐
sons “as an aid to the interpretation of its oral statement.”
United States v. Pape, 601 F.3d 743, 747 (7th Cir. 2010), citing
United States v. Higdon, 531 F.3d 561, 565 (7th Cir. 2008); United
States v. Baines, 777 F.3d 959, 966 (7th Cir. 2015) (relying on
both written and oral statements of reasons to find judge ad‐
equately addressed mitigation arguments).
In this case, the district court’s written statement of rea‐
sons makes clear that the court did consider Reed’s family cir‐
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cumstances argument. The statement of reasons acknowl‐
edges Reed’s children, describes Mrs. Reed’s disability, and
recognizes that with Reed in prison, the family would suffer
hardship and have no means of support. After discussing
other mitigating factors, the statement explains that, in the
sentencing judge’s mind, those considerations were out‐
weighed by the seriousness and shamelessness of the offense
and of the defendant’s conduct once caught, including his
false attempts to lay all the blame on his co‐defendants. From
the written statement, we are satisfied that the court consid‐
ered the argument in mitigation and rejected it, quite under‐
standably in light of the powerful aggravating factors the
judge highlighted. It would be easier to affirm the sentence if
the judge had said that during the sentencing hearing itself.
But we see no value in remanding for an oral repetition of
what was said in writing.
The judgment of the district court is AFFIRMED.
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WOOD, Chief Judge, concurring in part and dissenting in
part.
This case presents two issues: whether the district court
erred when it refused to allow Kevin Reed to withdraw the
guilty plea he entered on the fourth day of trial; and whether
the court committed procedural error when it said nothing
during the sentencing hearing about Reed’s principal argu‐
ment in mitigation. Like my colleagues, I find no error in the
first point, and so I join Part II.A. of the opinion. With respect
to the second point, my colleagues acknowledge in
Part II.B. that the transcript of the sentencing hearing gives us
no confidence that the judge at that time considered Reed’s ar‐
gument based on extraordinary family circumstances. They
believe that this serious flaw can be overlooked, however, be‐
cause well after sentence was pronounced, the judge issued a
written memorandum that addressed this point. In my view,
that was not enough. I would therefore reverse and remand
for resentencing.
The statute governing sentencing procedure reads as fol‐
lows:
The court, at the time of sentencing, shall state in open
court the reasons for its imposition of the particular
sentence … .
18 U.S.C. § 3553(c) (emphasis added). This language is not
ambiguous: it requires the district judge to state her reasons
for the sentence and to announce her final sentencing decision
“in the [sentencing] hearing itself.” United States v. Dill,
799 F.3d 821, 826 (7th Cir. 2015). In keeping with this rule, we
often have advised that “[d]istrict judges must approach rev‐
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ocation and sentencing hearings with an open mind and con‐
sider the evidence and arguments presented before imposing
punishment.” Id. at 825 (citations omitted) (emphasis added).
My colleagues are correct that we do encourage district
judges to provide a written statement amplifying their rea‐
sons for sentencing. Any written statement is included in the
record, and we may use it to interpret what the district judge
said at the sentencing hearing. See ante at 8 (citing United
States v. Pape, 601 F.3d 743 (7th Cir. 2010)). But there is a critical
difference between amplifying reasons already given at the
sentencing hearing and adding new, untested reasons. We
face the latter situation, because in Reed’s case the district
court said nothing about Reed’s principal argument in mitiga‐
tion: the extraordinary hardship that his absence would inflict
on his wife, who has a disabling illness, and his three children,
one of whom is also disabled. The fact that well after the sen‐
tencing hearing, at a time when Reed had no ability to com‐
ment, the judge announced that he found these hardships to
be outweighed by other factors does not help.
If written statements can introduce entirely new lines of
reasoning in support of the sentence, we might as well not
have the oral proceeding at all. Yet it is well established that
“[a] sentence pronounced in a defendant’s presence prevails
over a written sentence when the two conflict.” United States
v. McHugh, 528 F.3d 538, 539 (7th Cir. 2008) (citing United
States v. Makres, 851 F.2d 1016 (7th Cir. 1988)). That rule tells
us that the in‐court sentencing hearing is the main event, and
it cannot be “patched up” later with (as far as this record re‐
veals) a post hoc justification for the court’s ultimate choice of
a sentence. Even if the written reasons seem reasonable, as
they do here, when they are not provided before the decision
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is made we cannot say with confidence whether the judge
thought of them prior to or following his sentencing decision.
Nor do we know whether additional evidence or argument
on the defendant’s part might have influenced the judge’s
weighing of the mitigating and aggravating factors.
Regrettably, nothing that the district court said during the
sentencing hearing reveals any consideration of the hardships
to Reed’s family—hardships that Reed was trying to call to the
court’s attention. The only thing the court said about his fam‐
ily was that he had been a “wonderful” father, husband, and
brother. That alone, however, was weak evidence to balance
against the fraud Reed had committed, and it had nothing to
do with Reed’s actual argument in mitigation. My colleagues
“see no value in remanding for an oral repetition of what was
said in writing.” Ante at 9. I do not agree with them. We have
held that a judge must consider a defendant’s principal miti‐
gating arguments and have reversed when the judge does not
do so. See United States v. Cunningham, 429 F.3d 673, 679
(7th Cir. 2005). Our decision in United States v. Garcia‐Segura,
717 F.3d 566 (7th Cir. 2013), offers a procedure designed to en‐
sure that the defendant’s principal arguments in mitigation
have been addressed before the court imposes its sentence.
Neither that procedure nor any adequate substitute took
place in this case. I would remand for resentencing, and I
therefore respectfully DISSENT from Part II.B. of the opinion.
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