United States v. Reed, Michael L. , 208 F. App'x 487 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 13, 20061
Decided December 18, 2006
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 05-4028
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the Southern
District of Illinois
v.
No. 4:04CR40015-004-JPG
MICHAEL L. REED,
Defendant-Appellant. J. Phil Gilbert, Judge
ORDER
Michael Reed pleaded guilty to conspiracy to manufacture methamphetamine. The
district court added a 2-level enhancement to his offense level for using a minor in committing
the offense and sentenced him to 96 months imprisonment, close to the middle of Reed’s
advisory guidelines range. Reed challenges the 2-level increase, claiming that the district court
improperly credited the testimony of a police detective over the conflicting testimony of a
defense witness.
1
This case was scheduled for oral argument on December 13, 2006. After examining the
briefs and the record, however, we concluded that oral argument is unnecessary. Thus, the appeal
is submitted on the briefs and the record. See Fed. R. App. P. 34(a)(2).
No. 05-4028 Page 2
Reed was arrested after police linked him to the production and distribution of
methamphetamine in southern Illinois. During the investigation, detectives Michael Ryan and
Ryan Sykes interviewed Travis Bramlett, who was in police custody for possession of drug
paraphernalia at the time. Detective Ryan prepared a report of the interview. According to
Ryan’s account of the interview, Bramlett told the detectives that, one year earlier when he was
16, Reed had given him “filters used in the production of methamphetamine.” Based on this
information, the probation officer, in preparing a presentence report (PSR) recommended a 2-
level increase under § 3B1.4 of the guidelines for using a minor in his methamphetamine
conspiracy. Reed objected because the government’s evidence about involving Bramlett, in his
opinion, was not credible. The defense submitted an affidavit from Bramlett saying he never
received any filters from Reed. He denied telling detectives that he did. Detectives Sykes and
Ryan then visited Bramlett and asked him about the inconsistencies between their account of the
interview and his affidavit; Bramlett stood by his affidavit.
At sentencing, Bramlett testified that he had known Reed since he was “in diapers” and
that Reed was like an uncle. Bramlett insisted that he didn’t know “exactly what” he was saying
to the detectives during the first interview because they were “slamming their hands down,
threatening me, and I wasn’t even on my medicine.” When asked if he told the detectives that
Reed had given him filters, Bramlett answered, “I’m sure I didn’t say that.” Detective Sykes
testified, however, that indeed Bramlett had said he got filters from Reed. The district court,
after evaluating Bramlett’s “testimony and his demeanor on the stand,” found him not to be
credible. Instead, the judge accepted Detective Sykes’ account of the first interview with
Bramlett.
Reed’s only contention on appeal is that the district court should have credited Bramlett
over Sykes since Bramlett denied under oath that Reed gave him filters. We review the district
court's factual findings at sentencing--and whether Reed gave Bramlett filters is a factual finding
--only for clear error, United States v. Brazinskas, 458 F.3d 666, 667 (7th Cir. 2006). And
determinations of witness credibility will “virtually never” meet that standard because of the
deference owed to the district court's live witness assessments, see United States v. Ortiz, 431
F.3d 1035, 1039 (7th Cir. 2005) (internal quotation marks and citation omitted). Here, Reed
provides no reason to overturn the factual finding, which was based solely on the district court’s
credibility determination.
One final matter. On March 7, 2006, we issued an order denying a motion filed by
Illinois attorney Rex G. Burke to withdraw as counsel for Reed on this appeal. In that same
order, we appointed Burke to represent Reed pursuant to the Criminal Justice Act. At the time,
we did not know that Burke was not admitted to practice in this court. On December 8, 2006,
Burke filed an application for admission to practice in which he indicated that he received a prior
form of discipline--a 30-day suspension in 2002 by the Supreme Court of Illinois. In part of the
report recommending the 30-day suspension, the Illinois Bar disciplinary hearing board wrote:
No. 05-4028 Page 3
There is considerable mitigation in this case, as candidly pointed
out by the Administrator. There was no evidence that the
Respondent acted with a dishonest or self-serving motive, that he
intended to act contrary to the interests of his clients, or that he
made any misrepresentations to his clients. The Respondent did
provide some services to his clients. Additionally, the Respondent
admitted most of the facts upon which the disciplinary complaint
was based and he accepted responsibility for the misconduct.
Finally, the Respondent testified that he has taken some corrective
action to better organize his files and other records and to
communicate with clients.
Because attorney Burke’s 30-day suspension appears to be the only blemish on his record in
more than 31 years of practice, and because he is now admitted to practice law in Illinois, we
grant his application for admission to practice in this court.
Accordingly, we AFFIRM the judgment of the district court.