### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 16

‐ 3428

U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee

,

v.

K EVIN R EED

, 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

.

____________________

A RGUED M AY 25, 2017

— D ECIDED J UNE 13, 2017

____________________

Before W OOD

, Chief Judge

, and B AUER and H AMILTON

, Cir

‐

cuit Judges

.

H AMILTON

, 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 prison2 No. 16

‐ 3428

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.No. 16

‐ 3428 3

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 that4 No. 16

‐ 3428

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

‐No. 16

‐ 3428 5

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).6 No. 16

‐ 3428

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 prisonNo. 16

‐ 3428 7

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 how8 No. 16

‐ 3428

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

‐No. 16

‐ 3428 9

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.10 No. 16

‐ 3428

W OOD

, 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

‐No. 16

‐ 3428 11

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 decision12 No. 16

‐ 3428

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.