United States of America v. Michael Shane Reid

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0040P (6th Cir.)
File Name: 04a0040p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MICHAEL SHANE REID,
Defendant-Appellant.
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No. 02-5794
Appeal from the United States District Court
for the Eastern District of Tennessee at Greeneville.
No. 01-00065—Thomas G. Hull, District Judge.
Argued: November 13, 2003
Decided and Filed: February 6, 2004
Before: KRUPANSKY, MOORE, and ROGERS, Circuit
Judges.
_________________
COUNSEL
ARGUED: Stephen M. Kissinger, FEDERAL DEFENDER
SERVICES, Knoxville, Tennessee, for Appellant. Guy W.
Blackwell, ASSISTANT UNITED STATES ATTORNEY,
Greeneville, Tennessee, for Appellee. ON BRIEF: Nikki C.
Pierce, FEDERAL DEFENDER SERVICES, Greeneville,
Tennessee, for Appellant. Guy W. Blackwell, ASSISTANT
2 United States v. Reid No. 02-5794
UNITED STATES ATTORNEY, Greeneville, Tennessee, for
Appellee.
_________________
OPINION
_________________
KRUPANSKY, Circuit Judge. The defendant-appellant,
Michael S. Reid (“Reid”), has contested his sentence imposed
pursuant to his guilty-plea convictions for possessing a
firearm following a felony conviction and fraudulent misuse
in interstate commerce of another person’s identity. Reid has
asserted that the sentencing court abused its discretion (1) by
vacating an order denying a sentencing enhancement and
permitting the government, allegedly out of time, to introduce
testimony which resulted in the application of the sentencing
enhancement; and (2) by finding, for sentencing purposes by
a preponderance of the evidence, that the defendant had used
his illegally-possessed pistol to commit criminal acts which
were tantamount to the state-law felony offense of aggravated
assault, irrespective of the state court’s dismissal of the felony
charge for those acts.
Sometime prior to November 15, 2000, Reid stole a
driver’s license and a social security card which belonged to
a co-worker, Richard Anthony Rescha (“Rescha”) of Antioch,
Tennessee. Reid used those documents to successfully pose
as Rescha, thereby allowing him to exploit Rescha’s
presumably comparatively favorable credit standing and
overall record. Between November 15, 2000, and March 1,
2001, by attaining credit financing, and in at least one
instance by negotiating a worthless check, Reid purchased, in
Rescha’s name, a diamond engagement ring and a timepiece
collectively worth $2,144.00; a 1998 Chevrolet Silverado
truck valued at $20,591.55; a 1999 GMC Sierra pickup truck
priced at $20,998.65; a Kodiac Quad Runner truck which was
sold for $5,871.47; a .22 caliber rifle; and a .22 caliber
Heritage pistol (the two firearms cumulatively cost

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No. 02-5794 United States v. Reid 3
1Prior to the March 1, 2001 interrogation, the Secret Service had
been unaware of Reid’s fraudulent abuse of Rescha’s identity in
connection with his purchase of the Quad Runner vehicle.
approximately $200.00). During February 2001, local
authorities in Morristown, Tennessee, notified the United
States Secret Service office in Knoxville that Reid had falsely
assumed Rescha’s identity to purchase the above-described
jewelry as well as the Silverado and Sierra trucks.
Shortly thereafter, Reid’s crime spree was foiled by his
domestic misbehavior. During the early morning of March 1,
2001, Reid’s cohabitating fiancée, Merica L. Skelton
(“Skelton”), reported to the local police that, on the previous
day (February 28, 2001), Reid, during a fit of rage, had
choked her and pressed a loaded and hammer-cocked .22
caliber handgun against her forehead, accompanied by his
verbal threat to “blow her f___ing brains out.” That weapon
was later identified as the .22 caliber Heritage pistol which
Reid, while impersonating Rescha, had unlawfully purchased
at a pawn shop on December 20, 2000.
Later that same day (March 1, 2001), police officers
stopped Reid for traffic violations while he was driving the
1998 Silverado truck. Those constables arrested him for
driving without a valid operator’s permit, and on an
outstanding Tennessee arrest warrant for the February 28,
2001 armed aggravated assault. The arresting patrolmen
seized the two firearms from inside the Silverado, plus
Rescha’s driver’s license and social security identification
from Reid’s clothing. Later that day, Secret Service agents
interviewed the defendant at the Sevier County Jail. Reid
confessed that he had stolen Rescha’s motor vehicle
operator’s license and social security card, and had used them
to facilitate his purchases, in Rescha’s name, of the jewelry,
the three trucks,1 and the two firearms.
4 United States v. Reid No. 02-5794
2The record disclosed that, prior to his subject federal prosecution,
Reid has sustained several felony convictions in state courts on charges
ranging from driving while intoxicated, carrying a weapon inside a
licensed liquo r establishment, and assault.
3Guidelines section 2K2.1 controls offense level computations for
certain federal firearm s offenses, including basic unlawful possession.
That provision recites, in ma terial part:
If the defendant used or possessed any [illegally possessed]
firearm or am munition in connection with another felony offense
. . . increase [the offense total] b y 4 levels.
U.S.S.G. § 2K2.1(b)(5) (2001). (Bracketed material ad ded ; boldface in
original).
On November 26, 2001, Reid pleaded guilty to one count
of illegally possessing a firearm following a felony
conviction,2 in offense to 18 U.S.C. §§ 922(g)(1) and
924(a)(2); and to one charge of theft of another’s identifying
documents with intent to obtain items of value exceeding
$1,000, in violation of 18 U.S.C. §§ 1028(a)(7) and (b)(1)(D).
A charge of uttering a false written statement to a pawn shop
in connection with a firearm purchase, 18 U.S.C. §§ 922(a)(6)
and 924(a), was dismissed.
Subsequently, the defendant objected to a part of the
probation office’s January 17, 2002 presentence investigation
report (“PSR”), by which it had recommended a four-level
enhancement under U.S.S.G. § 2K2.1(b)(5)3 for using one of
the two subject illegally-possessed firearms “in connection
with another felony offense,” to wit, the February 28, 2001
state-law felonious aggravated assault against Skelton. Reid
objected to that advisory, protesting that, because the state
court had dismissed the felony assault charge against him as
part of a plea bargain agreement whereby he pleaded guilty to
misdemeanor assault for the February 28, 2001 offense, any
offense-level increase in his instant prosecution for that
conduct would be improper.

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No. 02-5794 United States v. Reid 5
On March 18, 2002, the district judge presided over a
hearing on the defendant’s objections to the PSR. At that
time, the government responded that its proposed U.S.S.G.
§ 2K2.1(b)(5) “felonious use” enhancement was justified
because sentencing facts, including the facts which would
satisfy the statutory elements of a predicate felony offense
necessary to trigger the subject guideline provision, need be
proved by the prosecution merely by a preponderance of the
evidence; therefore, the absence of a “beyond-a-reasonable-
doubt” conviction of that dismissed state-law felony assault
charge was immaterial. However, the sole evidence
supporting the alleged felonious assault which the AUSA
presented at the March 18, 2002 proceeding was an affidavit
executed by Skelton; the prosecution’s efforts to subpoena
Skelton for the March 18, 2002 hearing had been
unsuccessful. Accordingly, the presiding judge continued the
hearing until March 25, 2002, to permit the parties sufficient
time to marshal their evidence, including live witnesses,
pertinent to the disputed felonious assault.
Nevertheless, prior to that rescheduled hearing, on
March 21, 2002, the trial judge entered an order sustaining
Reid’s objection to the contested “felonious use”
enhancement, declaring that the United States had failed to
prove sufficient supportive facts by a preponderance of the
evidence. Subsequently, the prosecution moved for
reconsideration of that March 21, 2002 order, asserting that it
was prepared to offer probative testimony from Skelton. The
government explained that, prior to the March 18, 2002
hearing, it had prepared only to argue the legal effect of
Reid’s state court misdemeanor assault conviction on the
government-requested “felonious use” sentencing
enhancement, but not the factual proof of the underlying
armed assault, because it had not construed Reid’s objection
to encompass any opposition to the PSR’s recitation of the
material facts.
Reid replied that the court had given the government a fair
opportunity to proffer its evidence at the March 18, 2002
6 United States v. Reid No. 02-5794
4Because neither Agents Moore nor Kirkman could offer eyewitness
testimony about Reid’s conduct on February 28, 2001, their testimony
was not critical to the trial court’s resolution of the sentencing
enhancem ent controversy.
hearing, and therefore it should not be permitted a second
chance to prove its “felonious use” claims after the trial court
had ruled against it. However, the district court granted the
government’s motion, and set an evidentiary sentencing
hearing for June 3, 2002. On that day, over Reid’s continuing
objection to the court’s re-opening of the proof relevant to his
alleged “felonious use” of one of his illegally-possessed
firearms, the trial court ruled that it would allow both
adversaries to “put on anything” relevant to that contested
sentencing question. The court accepted testimony from three
prosecution witnesses, to wit, the victim Skelton plus two
case investigators, namely ATF Agent Greg Moore
(“Moore”) and Secret Service Agent Ted Kirkman
(“Kirkman”).4 The defense offered testimony by Reid.
At the evidentiary hearing, Skelton testified inter alia that,
on February 28, 2001, around 2:00 p.m., while at home, Reid
became angry with her because she refused to drive him to a
liquor store. His fury climaxed in a violent rampage which
lasted for many hours. The victim revealed that, at one point,
Reid inserted the barrel of his .22 caliber handgun into his
own mouth, and then pressed it against her head while
threatening to kill her. Reid also destroyed their coffee table,
and threatened the physical safety of Skelton’s young
daughter. After the lapse of approximately twelve hours after
the beginning of their argument, Skelton and her daughter
escaped the house. Skelton telephoned the police, and then
went to the station, where she completed an arrest warrant
affidavit by verbally answering questions posed by a state
judicial magistrate; her responses were transcribed into a
document which Skelton ultimately signed. Contrary to a
statement contained in that affidavit, Skelton explained on the
witness stand that she had not told the magistrate that Reid

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No. 02-5794 United States v. Reid 7
had forced the gun into her mouth, but instead she had told
that official that Reid had placed it into his own mouth.
Skelton also identified the .22 caliber Heritage pistol
implicated in the instant prosecution as the firearm deployed
by Reid while threatening her life on February 28, 2001.
On cross-examination, the defense attorney endeavored to
assail the victim’s credibility by illuminating evident
discrepancies in certain details reported in her affidavit as
compared to her witness-stand attestations; and by eliciting
admissions from her of voluntary post-assault contacts which
she had with Reid, as well as her petty criminal record.
Subsequently, Reid took the witness stand. He testified,
among other things, that he had merely “verbally assaulted”
his fiancée on February 28, 2001, and accordingly pleaded
guilty in state court to misdemeanor assault for that incident.
The defendant claimed that Skelton had admitted to the
Tennessee prosecutor that Reid did not use a handgun to
assault her, which confession, according to Reid, prompted
the state to reduce the charge against him to misdemeanor
simple assault. Reid denied that he displayed, or even
actively possessed, any weapon during the February 28, 2001
altercation; and he further denied that he had verbally
threatened serious violence against Skelton or her child. The
defendant conceded that he has an alcohol problem, and that
he had been drinking prior to the February 28, 2001
confrontation; but he denied that liquor had played a role in
his conduct on the day in question. Rather, Reid claimed that
a dispute over finances had triggered the confrontation with
his cohabitating fiance.
After the evidentiary hearing, the trial court journalized a
June 6, 2002 written order which assessed the testimony of
the various witnesses, and resolved:
Based on their testimony as a whole, and their
demeanor in open court, the Court finds that Merica
Skelton is a more credible witness than the defendant.
8 United States v. Reid No. 02-5794
5Absent the contested four-point offense level increase, R eid’s
sentencing range would have been 33 to 41 months in prison. U.S.S.G.
§ 5A (2001) (Sentencing Table).
The Court also finds that an aggravated assault using the
.22 caliber handgun was in fact committed by the
defendant on Ms. Skelton on February 28, 2001. The
Court takes judicial notice that in Tennessee an
aggravated assault is a felony punishable by more than
one year.
The Court finds that the government has [met] its
burden of proving that this enhancement applies to the
instant situation. Therefore, the government’s motion for
reconsideration of the application of a 4-point
enhancement under U.S.S.G. § 2K2.1(b)(5) for use of a
firearm in connection with another felony offense is
GRANTED for the reasons set out herein.
The four-degree enhancement produced a total offense level
of 17, which, when matched with Reid’s criminal history
category of VI, yielded a guidelines sentencing range of 51 to
63 months in federal prison.5 U.S.S.G. § 5A (Sentencing
Table). On June 10, 2002, the district court imposed
concurrent terms of fifty-five months for each of Reid’s two
counts of conviction, to be followed by three years of
supervised release, plus restitution totaling $7,025.00 and a
$200.00 assessment. A timely appeal followed.
The defendant’s initial assignment of error is that the lower
court abused its discretion by re-opening the record after it
had previously entered its March 21, 2002 order denying the
prosecution’s request for the controverted four-level
“felonious use” sentencing enhancement by reason of the
government’s failure of proof, especially given that the
government had been afforded a fair opportunity to offer its
evidence at the March 18, 2002 hearing which had preceded
the court’s March 21, 2002 order.

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No. 02-5794 United States v. Reid 9
A trial court’s decisions to vacate its prior order, and to
reopen the evidentiary record, are examined for abuse of
discretion. See United States v. Wilson, 27 F.3d 1126, 1129
(6th Cir. 1999). An abuse of discretion occurs “when the
reviewing court is firmly convinced that a mistake has been
made. A district court abuses its discretion when it relies on
clearly erroneous findings of fact, or when it improperly
applies the law or uses [an] erroneous legal standard."
Romstadt v. Allstate Ins. Co., 59 F.3d 608, 615 (6th Cir.
1995). (Quotation marks and citations omitted). Reid,
without supporting citation to controlling or even persuasive
authority, has endeavored to analogize the district court’s re-
opening of the evidentiary record, vacating of its prior order,
and granting of the government’s previously-denied motion
to significantly enhance the defendant’s offense level, to a
hypothetical re-opening of a criminal prosecution following
the defendant’s acquittal, whereby the defendant is compelled
to face re-trial on previously failed charges which, on the
government’s second attempt, are supported by novel
evidence, in violation of the protections of the Fifth
Amendment’s Double Jeopardy Clause.
That analogy was facially misconceived. No final
judgment which might have even arguably been insulated
from tampering by double jeopardy principles had been
entered in the defendant’s favor prior to the trial court’s
election to permit both adversaries to offer additional
evidence relevant to the disputed sentencing issue and its
setting aside of the March 21, 2002 order. See, e.g.,
Palazzalo v. Gorcyca, 244 F.3d 512, 516 (6th Cir. 2001)
(“The Double Jeopardy Clause protects against a second
prosecution for the same offense after conviction or acquittal,
and against multiple punishments for the same offense.”)
(emphasis added) (citing Ohio v. Johnson, 467 U.S. 493, 498
(1984); North Carolina v. Pearce, 395 U.S. 711, 717 (1969)).
Rather, the ultimately-vacated March 21, 2002 order was
merely an interim decree subject to revision, reconsideration,
rescission, correction, amendment, adjustment, vacation,
substitution, supersedure, modification, annulment, or any
10 United States v. Reid No. 02-5794
6On appeal, the United States has argued that this court lacks
jurisdiction over the defendant’s challenge to the district court’s vacation
of the March 21, 2002 order because that order was a non-appealable, and
now defunct, interim mandate. However, the defendant has challenged
his final judgment of sentence b y complaining that it was wrongfully
determined in light of his purported ve sted right to the trial co urt’s prior
favorable adjudication of the “felonious use” issue. Acc ordingly, this
reviewing court has subject matter jurisdictio n over the instant
controversy. See 18 U .S.C. § 374 2(a); 28 U .S.C. § 129 1.
other status change, by the trial court, in the exercise of its
sound discretion, at any time prior to the entry of final
judgment.6 See Wilson, 27 F.3d at 1129; United States v.
Kolenda, 697 F.2d 149, 150 (6th Cir. 1983) (per curiam).
In both civil and criminal cases, a trial court is empowered
to revisit any of its previous non-final rulings in the light of
a perceived error or misjudgment, new relevant information,
or even its simple conclusion that it may have acted in ill-
considered haste. See, e.g., Christianson v. Colt Operating
Corp., 486 U.S. 800, 816 (1988); Arizona v. California, 460
U.S. 605, 618 (1983). In the case sub judice, the United
States had offered two compelling reasons why it had not
been prepared to offer factual proof via live witnesses at the
March 18, 2002 hearing – (1) the key witness Skelton was
unavailable, and (2) the prosecutor had reasonably construed
Reid’s objection to the PSR as a legal contention that the
“felonious use” enhancement was improper absent an actual
felony conviction, but not as a denial of the underlying facts.
See United States v. Stafford, 258 F.3d 465, 475-76 (6th Cir.
2001) (recognizing that a defendant’s non-objection to factual
assertions contained in the PSR constitutes an admission of
the accuracy of those facts), cert. denied, 535 U.S. 1006
(2002). Furthermore, at the June 3, 2002 evidentiary hearing,
Reid was given a full and fair opportunity to cross-examine

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No. 02-5794 United States v. Reid 11
7The Sixth Circuit has explained that a district court, in a criminal
case, may, in its sound discretion, re-open the evidence at trial after the
government, or even both litigants, have rested:
There is no iron-bound, copper-fastened, double-riveted rule
against the admission of evidence after both parties have rested
upon their proof and even after the jury has en tered upon its
deliberations. Considerable latitude in discretion is vested in the
trial judge in this respect. In exercising his discretion the trial
judge must consider a number o f factors. . . . A m otion to
reopen is clearly within the disc retion o f the trial court. In
exercising its discretion, the court must consider the timeliness
of the mo tion, the character of the testimony, and the effect of
the granting of the motion. The party moving to reope n should
provide a reasonable explanation for failure to present the
evidence in its case-in-chief. The evidence proffered should be
relevant, admissible, technically adequate, and helpful to the jury
in ascertaining the guilt or innocence of the accused. The
belated receip t of such testimony should not "imbue the evidence
with distorted importance, prejudice the opposing party's case,
or preclude an adversary from having an adequate op portunity
to meet the additional evidence offered." United States v.
Larson, 596 F.2d 75 9, 778 (8th Cir.1979).
The most important consideration is whether the opposing
party is prejudiced by reopening. One of the critical factors in
evaluating prejudice is the timing of the motion to reop en. If it
comes at a stage in the proceedings where the opposing party
will have an opportun ity to respond and attempt to rebut the
evidence intro duced after reop ening, it is not nearly as likely to
be prejudicial as when reop ening is granted after all parties have
rested, or even after the case has been subm itted to the jury.
W here, as in this case, reopening is permitted after the
government has rested its case in chief, but before the defendant
has presented any evidence, it is unlikely that prejudice
sufficient to establish an abuse of discretion can be established.
Un ited States v. B lankensh ip, 775 F.2d 73 5, 741 (6th Cir. 1985).
Manifestly, if a district court is empowered to re-open the
gove rnment’s proof in a criminal jury trial after the prosecution has rested
the prosecution witnesses and to offer his own rebuttal
evidence; therefore, he suffered no unfair prejudice.7
12 United States v. Reid No. 02-5794
its case, the lower court in the instant case did not abuse its discretion by
re-opening the pro secution’s evidence proffered in a non-jury sentencing
proceed ing.
8Application Note 7 to the Official Commentary to Guid elines
section 2K2.1(b)(5) defines “felony offense” as “any offense (federal,
state or local) punishable by imprisonment for a term exceeding one year,
whether or not a criminal charge was brought, or conviction obtained.”
U.S.S.G. § 2K2.1, comment. (n.7). (Emphasis added). Indeed, conduct
which was the subject of an indictment count of acquittal may result in a
sentencing enhancement if proved by a preponderance of the evidence.
United States v. Wa tts, 519 U.S. 148, 157 (1997); McM illan v.
Pen nsylvania , 477 U.S. 79, 92 (1 986).
Under Tennessee law, an “assault” includes either “intentionally or
knowingly [causing] ano ther to re asonably fear imminent bodily injury;
or intentionally or knowingly [causing] physical contact with another and
a reasonable person would regard the contact as extremely offensive or
provocative.” Tenn. Co de A nn. § 3 9-13 -101 (2003). An “assault” is
“aggravated” if the perpetrator “uses or displays a deadly weapon.” Tenn.
Code Ann. § 39-13-102. In Tenn essee, “aggravated assault” is a Class C
felony. Tenn. Code Ann. § 39 -13-102(d)(1). A Class C felony is
punishable by three to fifteen years in the state penitentiary. Tenn. Code
Ann. § 40-35-101 (Sentencing Ranges Table).
Accordingly, on the overall record, the district court did not
abuse its discretion by hearing additional testimony
concerning the “felonious use” enhancement following its
initial resolution of that controversy. To the contrary, its
actions commendably served, ultimately, to correct that
misconceived ruling. See United States v. Tilton, 714 F.2d
642, 643 (6th Cir. 1983) (per curiam) (instructing that a trial
judge has a duty to “conduct the trial [or other proceeding] in
an orderly fashion, to ensure that the issues are not obscured
and to act at all times with a view toward eliciting the truth.”).
Finally, Reid has assailed his sentence on the rationale that
the government failed to prove, by a preponderance of the
evidence, that he had used his unlawfully-possessed pistol on
February 28, 2001 in a matter which fulfilled the statutory
requirements of felonious assault.8 Reid’s attack was

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No. 02-5794 United States v. Reid 13
anchored in a credibility challenge. The defendant has
claimed that the district court should have believed him,
rather than Skelton, because she was an interested witness
with a motive for seeking revenge against him because the
government had confiscated the engagement ring which he
had fraudulently purchased for her; she had a criminal record;
and some aspects of her story varied over time. However, a
district court’s credibility assessment is ordinarily
unreviewable. “A reviewing court does not reweigh the
evidence or redetermine the credibility of the witnesses whose
demeanor has been observed by the trial court.” Matthews v.
Abramajtys, 319 F.3d 780, 788 (6th Cir. 2003) (citing
Marshall v. Lonberger, 459 U.S. 422, 434 (1983)). “The
appellate courts generally do not review the district court's
determinations regarding witness credibility.” United States
v. Gessa, 57 F.3d 493, 496 (6th Cir.1995).
The credited testimony of a single witness is sufficient to
support factual findings by a preponderance of the evidence
on sentencing, which will survive “clear error” review, if that
evidence bears more than a “minimum indicium of
reliability.” Id. Skelton’s credited testimony was sufficient
to support the “felonious use” enhancement. See United
States v. Parker, No. 99-5691, 2000 WL 1647922, at *1 (6th
Cir. Oct. 23, 2000) (per curiam), cert. denied, 531 U.S. 1183
(2001); United States v. Ray, No. 98-6776, 2000 WL
1033010, at *1 (6th Cir. July 21, 2000) (per curiam).
This reviewing court has carefully examined the trial
record, the briefs and all arguments of counsel, and the
controlling law. It has identified no reversible error.
Accordingly, the instant judgment of conviction and sentence
against defendant Michael Shane Reid is AFFIRMED.

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