NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 13a0729n.06 No. 10-6394 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,

v. DONAL D REYNOL DS, J R., Def endant- Appellant. ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNI TED STATES DI STRICT COURT FOR THE EASTERN DI STRI CT OF TEN NESSEE OPI NI ON

Before: COOK

and S TRANCH, Circ uit Jud ges; LAWSON Distric t Judge. * DAVID M . LAWSON, District Judge

. Def endant Donald Rey

nolds, J r., wa s convicted afte r a jury trial of one count of conspirac y to distribute and possess with intent to distribute coca ine and marijuana ; four counts of possession of a firea rm during and in rela tio n t o a d ru g traff icking crime; three counts of possession with intent to distribute coca i n e; fi v e co unts of conspirac y to commit promotional and conce alment money launder ing; sevente en counts of structuring financ ial
transac tions; and six counts of conspirac y to commit money launder ing by eng agin g in monetary transac tions in proper

ty derive d from drug activity

. He appea ls his conv ic ti o n s a n d s entenc es, raising

a varie ty of issues throug h counsel and via his pro se filings, none of which require s reve rsal. There fore , we a ffirm.

The Honorable David M. L awson, United States District J udg e for the Easter n District of * Michig an, sitting by

desig nation. - 1 -No. 10-6394

United States v. Donald Re ynolds, Jr. I

. The g overnme nt indicted the defe ndant, Donald Rey nolds, J r., on multipl e drug , firea rm, and money launder ing char g es, alleg ing that he was a high- level drug deale r who arran ged fo r the shipment of marijuana and coca ine throug h the wester n United States, eventua lly taking delivery in Tenne ssee, wher e he distributed it. Rey nolds cover ed up his activity using a m usic distribution business as a front, and he conducte d many of his transac tions in cash amounts slightly less than the $10,000 curr ency repor

ting limit s. Rey

nolds was prese nt during sever al of the drug exchang es, and he g ener ally was arme d and equipped his main location with a g un on a tripod device pointed at the door. The g overnme nt offe red ample evidenc e to back up these alleg ations. Nonethele ss, on appea l, Rey nolds challeng es the sufficie ncy of the evidenc e to support many of the counts of conviction, so we will discuss the trial testimony in some detail. A. Trial e vidence Eric Ty ler testified that in late 1999 or ear ly 2000, wh en he visited Knoxvi lle to collect pay ment for a shipment of marijuana , he met w ith Donald Rey nolds in Chattanoog a, wher e Rey nolds g ave him money for the marijuana and established a drug -dea ling rela tionship. Acc ording to Ty ler, Rey nolds would provide Ty ler w it h r e s id e n ti a l a d d

r e s ses to which Ty

ler could send Fe dEx shipments of marijuana

. Ty ler testified that he shipped app ro x i mately 150 to 200 pounds of marijuana to Chattanoog a in this manner , and that later, he shipped marijuana to Re y nolds’s pare nts’ addre ss in Knoxvi lle. Ty ler stated that he also sent marijuana to hotel rooms that Rey nolds would book for this purpose. Tyler testified that betwee n late 1999 and 2003, he shipped b etween 2,200 and 2,500 pounds of marijuana

to Rey nolds. - 2 -No. 10-6394

United States v. Donald Re ynolds, Jr. Nathanie l “Nug g et” Smit h test if ied that he beca

me familiar with Rey

nolds beca

use Rey nolds

was supply ing marijuana and Smit h was selling it. I n summer 2004, Smit h testified, he and Rey nolds beg an trave ling to Arizona to purcha se marijuana for resa le in Tenne ssee. Smit h testified that he, Tim For

bes, and Courtney Hensley would pick up marijuana that Rey nolds shipped to hotel

rooms from Arizona using the proce dure established by Ty ler. Sm i t h s t at ed that in late 2005, Rey nolds beg an holding conce rts to explain the source o f reve nue that was coming from the marijuana traff

icking , but that in 2005 Rey nolds did not actua lly sell any music or promote any rappe rs. Smit h also testified that Rey nolds purcha sed car s and resold them in order to conce al drug proce eds. Acc ording to Smit h, by 2006 he and Re y n o l d s’s other associate s wer e picking up approximately eig hty pou n d s o f marijuana a wee k, and Rey nolds used the resulting reve nue to purcha se ca

rs and motorc y cles. Smit h said he was robbed of a packa g e of marij uana in Dec ember 2006. As a result, Rey nolds trave led from Knoxvi lle to Nashville, car ry ing a g un. W h en Rey nolds arr ived in Nashville, he loaded the g un and unsucce ssfully attempted to retrie ve the drug s. After that episode, Rey nolds and Smit h beg an dealing in coca ine provided by Mexi can car tels in the hope of achie ving faster returns. Smit h testified that once Rey nolds beg an to deal coca ine, Rey nolds rig g ed a g un on

a tripod in the baseme nt wher e the coca ine and money exchang es took place

. The g un was pointed
at the door to the baseme nt. Rey nolds continued to deal in marijuana as wel l ; S m i t h t ra v eled to Chicag o with Rey

nolds in the summer of 2007 to pick up m ar ijuana and was caug ht by police. S m i t h was also caug ht with nine ounces of coca ine and a quarte r of a pound of marijuan a i n Knoxvi lle in J anuar

y 2008. - 3 -No. 10-6394

United States v. Donald Re ynolds, Jr. An t o n i o Santa Cruz testified that he knew Rey nolds as “D” , that he met Rey nolds in t h e beg inning of 2005, and that he suppl ied R ey n o l d s at least 800 pounds of m arijuana in the s pan of approximately a y ear and a half. Santa Cruz stated that ear ly in their rela tionship, he and Rey nolds purcha sed about 40 pounds of marijuana from a supplier in Arizona, who reque sted a $10,000 down pay ment. Howeve r, Rey

nolds w ired only $9,800 in or der to a void a “r ed fla g ” by

the bank f

rom a $10,000 transac tion. Acc ording to Santa Cruz, he cea sed supply ing Rey nolds with marijuana beca use of a n unpaid drug debt of $75,000. Carlos Be tancour

t testified that he sold approximately 300 kilogr ams of coca ine to Rey nolds, whom he also knew as “D” , betwee n Dec ember 2006 and Fe bruar y 2008. The coca ine was supplied
to Be tancour

t by J oshua Correa , who worke d for a Mexi can drug car tel. Be tancour

t testified that in Dec ember 2006, he met Rey nolds at a Hooter’s restaur ant with the intention of selling Rey nolds

some coca ine. I nstead of g iving Be tancour t money , Rey

nolds g ave Be tancour

t two loaded g uns in exchang e for the coca ine. L ater in the rela tionship, Be tancour t beg an delivering coca ine to Rey nolds
at his home. Be tancour

t descr ibed Rey

nolds’s loaded g un set up on a tripod in the baseme nt, wher e the drug deals occur

red. The g un was pointed at the door, and Be tancour t testified that worrie d him. Be tancour

t testified that when he broug ht Rey nolds coca ine, Rey

nolds did not alway s immediately pay him, but that Rey

nolds de posited money into B etanc ourt’s acc ounts in incre ments of less than $10,000 in order to avoid “re d flag s” and repor ts to the I RS. Be tancour

t also testified that he beca me involved in a re al estate venture Rey nolds was planning in L as Ve g as, Ne vada. I n Marc h 2008, the police executed a sear ch war rant on a storag e unit in Knoxvi lle and found marijuana , firea

rms, a curr ency counting machine, and approximately $200,000 in cash. Be tancour t - 4 -No. 10-6394

United States v. Donald Re ynolds, Jr. t es t i fi ed t h e drug car

tel with which he was associate d owned the storag e unit. J onathan Correa, J oshua Correa ’s brother, t estified that the g uns and marijuana found in the storag e unit had been broug ht to Knoxvi lle in the hope of selling them to Rey nolds. J oshua Correa testified that the money in the unit was proce eds fr om sales to Rey nolds. Be tancour

t testified that while at a party hosted by car tel leade rs in Mexi co, he beca me awa re that the car

tel was looking for a “5.7 g un,” which the car tel called a cop killer g un beca use the bullets could pierc e bullet-proof vests. Be tancour t stated that he asked Rey

nolds whether he could procur e such a g un, and Rey

n o l d s indicated that he could g et thirteen of them. Acc ording to Be tancour t, Rey nolds g ave him a 5.7 FN Her stal to keep for himself, despite the fac t tha t the car tel wanted the g un. An employ ee of the Coal Creek Armory testified that Rey nolds had purcha sed two of those g uns in Febr

uary 2008. J oshua Correa testified that in Fe bruar y 2008, law enfor ceme nt seized approximately thirty

four kilogr ams of coca ine crossing the border from Mexi co; approximately four kilogr ams wer e destined for Knoxvi lle. Correa testified that he rec eived drug s from Placido Be nitez, a member of

a Mexi can car

tel, and that drivers would transport those drug s to various locations i n t h e Un i t ed States, including Knoxvi lle. Correa stated that he knew Rey nolds by his full name and also as “D.” Correa testified that he sent Rey nolds approximately 240 kilogr ams of coca ine throug h Be tancour t betwee n late 2006 and ear ly 2008. Acc ording to Correa , in late 2006, Rey nolds purcha sed a BMW from him for a

pproxi mately

$58,000. Alfre do Alvara do testified that he, along with Carlos Be tancour t, supplied coca i ne to Rey nolds, whom he knew as “D”. He also testified t hat h e purchased a vehicle from R ey nolds to - 5 -No. 10-6394

United States v. Donald Re ynolds, Jr. drive from Knoxvi lle to Dallas, wh ere he transfe rre d the car to J oshua Correa

. The g overnme nt prese nted testimony from Richard J ones, who stated that he purcha sed approximately four to six kilogr ams of coca ine from the defe ndant betwee n November 2006 and J une 2007. The second time he purcha sed coca ine, Rey nolds place d a g un on the table. The g overnme nt also prese nted testimony from J ohn Thomas, who stated that he purcha sed 50 to 100 pounds of marijuana and two kilogr ams of coc aine f

rom Rey nolds and Smit h betwee n 2005 and 2007. Albert Ba ah testified that he owned a used car lot in Knoxvi lle. Ba ah stated that Rey nolds purcha sed sever al vehicles from him, including a Cadillac Escala de, a Yamaha motorcy cle, a GMC Dena li, a Chevrolet I mpala, and an I nfiniti. Rey nolds purcha sed the Escala de with cash, and stated that it was being purcha sed on behalf of Timeless Enter tainment, Rey

nolds’s music company . As a result of t hat purchase, Baa h called the police department t o repor t a larg e cash transact i o n , and submitt ed an 8300 form to the I nterna l Revenue Service

. Ba ah aler ted the police to all fut u re p u rc h ases by Rey

nolds, who paid with cash. The total sale price of the vehicles purcha sed b y Rey nolds was approximately $250,000. Rey nolds purcha sed an additional Escala de from Ba ah, but did not pay

the entire purcha se price

. After that transac tion, Ba ah’s account was frozen and Ba ah

was informed that the Escala de had been seized in Chicag o beca use it was in v o l v ed in a drug traff icking crime. B aah r ecla imed the vehicle and sol d it wholesale . Ba ah testified that Rey nolds asked him to w rite a cashie r’s chec k for $182,000 in e x chang e for cash, and that afte r consultation with the police depar

tment, Ba ah decide d to write the chec k. Howeve r, afte r Rey nold s failed to

come forwa

rd with the cash, Ba ah canc elled the chec k. Ba ah also g ave Rey nolds c ashier’ s chec ks for $50,000 a

nd $10,000 afte r re ceiving $60,000 in cash fr om Rey nolds. - 6 -No. 10-6394

United States v. Donald Re ynolds, Jr. The g overnme nt called Drug Enforc ement Administration ag ent David L ewis to testify as

an ex p er t wi t n es s on the prac tices of narc otics deale rs. He testified not on the basis of his own investiga tion in the case , but instead offe red a color commentar y on the evidenc e prese nted in court. I t is difficult to see what he added to the tr ial, other than possible pre judice to the def

endant whe n h e offe red his own opinion on Rey nolds’s g uilt, which the fac t witnesses themselves am p l y demonstrated. L ewis opined that the majority of the drug t ransa ctions took place in Rey nolds’s home beca

us e t h at was wher e he was most comforta ble. L ewis stated that this was the larg est

coca ine investiga tion that he had seen in his twenty y ear s in Knoxvi lle. L ewis testified about a cash book found at Rey

nolds’s residenc e, and o p i n ed t h at i t was a drug ledg er. When discussing the ledg er, L ewis offe red this opinion: “The n when y ou add on top of t h at t h e defe ndant’s, the cooper ating defe ndants who have testified, they just to me proved without a doubt that what they say

was g oing on was g oing on. They told y ou what was g oing on. Then y ou have the rec ords to show that they wer e telling the truth.” Tr ial Tr., Mar . 2, 2010 at 236. L ewis also discussed Rey nolds’s use of wea

pons. He testified that Rey nolds broug ht a g un at the time he soug ht to retrie ve stolen marijuana “in order to r etaliate to shoot and to do w hateve r

was necessa

ry to g et t he drugs back because that was money . That was also reputa ti o n for him.” Id

. at 240. Commenting on Rey nolds’s possession of a g un at his first meeting with Be t an co u rt , L ewis thought the purpose was to pr otect Rey nolds a nd to provide a g esture of trust by g iving it to Be tancour

t. With respec t to the gun in Rey nolds’s basement, L ewis testified that the purpose was to protec t and further Rey

nolds’s g un traff

icking by intimi dating individuals coming to the baseme nt to deal. L ewis then discussed the “cop killer” g un that Rey nolds g ave to Be tancour

t, stated that the - 7 -No. 10-6394

United States v. Donald Re ynolds, Jr. Mexi can car

tel wanted the g un beca

use they wer e in a war with Mexi can law enfor ceme nt and rival g ang s, and opined that Rey nolds g ave the gu n to Be tancour t to win favor and develop the rela tionship. On cross-e x amination, defe nse counsel asked L ewis if it was his opinion that Rey nolds was

a drug deale r, and (of course ) L ewis responde d “I know that Mr. Rey nolds is a drug deale r.” Id

. at 259. When presse d, L ewis stated that this was “not an o p i n i o n ” b u t instead was based on his “experienc e.” Id

. at 260. L ater , defe nse counsel asked whether , in any of the trials in which he had
acte d as a witness, he had ever come to the opinion that the defe ndant was not a drug deale r. Trial Tr., Mar. 3, 2010 at 20. L ewis responde d “I wouldn’t have testified in the case , if I thought that the defe ndant was not a drug deale r.” Ibid

. After defe nse counsel continued to ask whether in eac h case that the ag ent appea

red as an expert witness he had testified that the defe ndant was a drug deale r and L ewis did not g ive a y es or no answe r, the court asked wh ether in the case s that L ewis testified, “[h] as it been y our opinion that the defe ndant is a drug deale r? ” Id

. at 21. L ewis responde d: “Ye s, it would be my opinion that the things that wer e found, the evidenc e are indicative drug traff icking [si c].” Ibid

. Special Ag ent Br ian Grove of the I nterna l Revenue Service testified that he obtained a sear ch

war rant to sear ch Rey

nolds’s home and another house in Knoxvi lle in 2007. On November 19, 2007

an d ag ain on Dec ember 10, 2007, ag ents found packa g ing materia ls in the trash at Rey nolds’s residenc e. Those packag ing materials tested positive for c o caine

. Grove also prese nted evidence of Rey nolds’s financ ial transac tions throug h J une 2008; he noted a m ar k ed uptick in the both the number of transac tions and the amount of money in Rey nolds’s acc ounts begi nning in 2005 and - 8 -No. 10-6394

United States v. Donald Re ynolds, Jr. ag ain in 2007. Grove stated that of the approximately 2500 income rec ords, about 12 ref lected that they came from a leg itimate source . Grove also identified seve ra l p u rc h ases that Rey nolds made using Americ an Ex press car ds, such as t i m e s h ar es . I n order to pay those bills, Rey nolds made multipl e cash deposits, eac h under $10,000, into severa l differ ent cor porate acc ounts, from which he paid the bills. I n the period betw ee n May 15 and 20, 2008, Rey nolds made multipl e deposits totaling $215,000. B. Proc eeding s in the district court A series of indictments wer e filed in the Easter n District of Tenne ssee, with the latest on May 20, 2009 char g ing Rey

nolds with one count of conspirac y to dist ri b u t e and possess with intent to distribute c ocaine and marijuana ; f our counts of possession of a firea rm during and in rela tion to a drug traff icking crime; three counts of possession with intent to distribute coca ine; five counts of conspirac y to commit money launder ing; sevente en counts of structuring financ ial transac tions; and six co u n t s of conspirac y to commit money launder ing by eng ag ing in monetary transac tions in p ro p erty derive d from drug activity

. Rey nolds’s rela tionships with his defe nse counsel can b e char acte rized at best as stormy

. He orig inally was repr esente d by Donald A. Bosc h, who moved to withdraw as counsel on Marc h 10, 2009 based on an ethical conflict and brea kdown in the attorney

client relationship. The mag istrate judg e g rante d Bosc h’s motion and appointed John E. Eldridg e to repre sent Rey

nolds. After filing motions t o suppress evide nce, E ldridg e moved to withdra w on J une 12, 2009. I n an aff idavit in support of the motion, Eldridg e wrote that Rey nolds had informed him that he was not satisfied with defe nse counsel’s repr esenta t i o n an d wished to repr esent himself. On J une 26, - 9 -No. 10-6394

United States v. Donald Re ynolds, Jr. 2009, the district court g rante d defe nse counsel’s motion to withdraw, stating that during the hear ing that Rey nolds advised the court that he wis h ed t o p ro ceed pro se and finding t hat a brea kdown i n attorney -clien t communication had occur red. The district court permitted Rey nolds to repr esent himself, but appointed Norma n McKe llar to ac t as standby counsel. R ey n o l d s filed some unsucce ssful pro se motions, but then on Aug ust 11, 2009, All en E

. Schwar tz and Gre g ory H. Har

rison filed a notice of appea ranc e as attorney s of rec ord for Rey nolds. On Fe bruar

y 18, 2010, four day s befor e trial was scheduled to beg in, Schwartz and Ha rrison filed
a mot ion for a conti nuance and to withdraw as counsel. They stated t hat R ey nolds had refused to cooper ate with defe nse counsel and had acc used defe nse counsel of working with the g overnme nt, and that defe nse counsel had been subjected to multipl e daily hara ssing phone calls from Rey nolds’s family

. On the same day , the mag istrate judge denied defe nse counsels’ motion, requiring them “to continue with their re prese ntation of [R ey nolds] and, to put it sim ply , to do the best they can with what they have be en g iven.” Or der, Case No. 08-c r-00143, dkt. #163, at 3. Trial beg an as schedule d on Fe bruar y 22, 2010. The jury returne d its g uilty verdic ts on Marc h 8, 2010. The case was ref err ed to the probation depar t m en t fo r a prese ntence repor t. However, acc ording to the pre- sentenc e repor t, Rey nolds ref used to be interviewe d for the presentenc e investiga tion. A sentenc ing hear ing was h el d o n October 28, 2010. At the sentenc ing hear i n g, the district court asked Rey nolds whether he was repr esente d by counsel, and Rey nolds stated “I had no choice

. They never showed up for me. Thi s i s p re t t y m u ch the first time I seen them. They didn’t g o over nothing with me. I don’t know what I am doing here .” Sentencing Hr’g Tr., Oct. 28, 2010 at 4. Upon being told that the offe nse in Count I car ried a mandatory sentenc e of - 10 -No. 10-6394

United States v. Donald Re ynolds, Jr. ten y ear s and a potential sentenc e of life imprisonment, Rey nolds stated “The first time I hear d it.” Id

. at 5. At that point , t h e d i s t ri ct court hear d from defe nse counsel, who stated that they had attempted twice to discuss the pre-sentenc e report wit h Rey nolds, b u t t h at Rey

nolds had y elled at defe nse counsel and ref

used to revie w the repor

t. Attorney Schwar

tz stated that “the main thrust of [R ey nolds’s] outbursts wa s he didn’t want us to repr esent him any more, he didn’t want us repr esenting him here this af ternoon.” Id . at 10. Rey

nolds then stated his belief that his attorne y s

wer e working ag ainst him and had not provided him with assistance in his case . The district c ourt interpre ted that statement as a reque st for a continuance , and denied the reque st beca use Rey nolds’s

o wn actions cause d his failure to be interviewe d or to revie w the repor t. The district co u rt al s o observe d that Rey

nolds had a history of difficult rela tionships with defe nse counsel and proce eded
to sentence Rey

nolds to a life term with an a dditional 900 months to be serve d consec utively

. On the same day , defe nse counsel filed a motion to withdraw, stating that their contra ct with Rey nolds terminated their responsibility for further repr esenta tion at the end of the trial phase of the

case and that on Oc tober 27, 2010, Rey nolds had threa tened Ha

rrison wit h violence. The dist rict
court g rante d defe nse counsel’s motion to withdraw on November 5, 2010. Rey nolds filed a timely notice of appea l. New counsel was appoint ed to repr esent him. Appellate counsel filed a brief raising ten issues, and Rey nolds has contributed sever al pro se filings of his own. Appellate counsel also has moved to withdra w. I I

. As mentioned, throug h counsel Rey nolds raises ten issues for revie w. I n addition, he filed
two pro se motions raising counsel-of -choic e and inadequate-a ssistance-of -counse l issues and a - 11 -No. 10-6394

United States v. Donald Re ynolds, Jr. notice of supplemental authority

. Many of the issues involve differ ent standards of revie w. We will addre ss them in turn. A. Fa ilure to hold a Franks hear ing Rey nolds arg ues that the district court abused its discretion in failing to hold a Franks hear ing
to challeng e the sear ch war rants, and as s er t s t h at this err or require s the court to vacate his convictions. The activity in the district c ourt sug g ests that the defe ndant himself held inconsistent views of the merits of this issue. On April 10, 2009, Rey nolds’s lawy er (at the time, J ohn Eldridg e) filed two motions to suppress, along with sever al other pretria l motions. During oral arg ument befor e the mag istrate judge, defense counsel stated that “on the Franks issue, we were not able to develop that, and I should have told the Court on the front end that we are not pushing far with that issue.” Mot. Hr’g Tr., May 13, 2009 at 22. T h e next day , the mag istrate judge filed a repor t

rec ommending that the second of those motions be denied, and neither party objected. The district

co u rt adopted the repor

t and rec ommendation on J une 4, 2009. On the same day , the mag istrat e judge filed another repor t rec ommending that the fi rs t m o t i o n to suppress be denied as well. Rey nolds’s attorney

filed an obje ction, which the district cour t overrule d. That was n o t t h e en d o f the Franks issue, howeve r, at least from the defe ndant’s point of view. On J une 12, 2009, Rey nolds, acting pro se , filed a document that appea red to be titled “ I lleg al Disclosure of Ora l Communi cation” and reque sted a Franks hear ing in connec tion with a court order for surveillance

. The mag istrate judge denied this motion on J une 30, 2009 as untimely , but also noted that the g overnme nt had repr esente d that there wer e no wireta ps involved in the case , and thus Rey nolds’s motion was moot. The mag istrate judge also stated that Rey nolds’s motion for a Franks - 12 -No. 10-6394

United States v. Donald Re ynolds, Jr. hear ing was denied beca

use Rey nolds had not made an offe r of proof of any false statements offe red in support of a wa

rra nt or offe red a

ny aff idavits of his own. On J anuar y 11, 2010, Rey

nolds’s new lawy ers, Allen E. Schwar tz and Gre g ory H. Har

rison, filed another m otion to suppress, seeking to suppress evidenc e re cover ed fr om a trash c an outside of the Rey

nolds’s residenc e. The motion did not reque st a Franks hear ing expli ci tly , and it was denied a s untimely

by the mag istrate judg e on January 15, 2010. Then on the first day of trial, defe nse counsel rene wed the reque st for a Franks hear ing that had been withdrawn by Eldridg e, resubmitted by Har rison and Schwa rt z, and denied by the mag istrate judge as untimely

. Def ense counsel asser

ted that a motion for a Franks hear ing had been filed since their appea

ranc e in the case (we wer e unable to find such a m o t i on on the docket, but counsel may have been ref err ing to the motion to suppress filed in J anuar y 2010). Def

ense counsel obs er v ed t h at the motion cut-off date was four months prior to their appea ranc e in the case , and

ar gu ed t h at t he defe ndant was prejudice d by his inability to file a further motion for a Fran ks hear ing. T he cour

t denied the r enew ed motion for a Franks hear ing. The Court revie ws a district court’s denial of a motion to file an untimely motion to suppress for abuse of discretion. United States v. W alden , 625 F.3d 961, 964 (6th Cir. 2010). As the Supreme Court has rec og nized, district courts require wide latitude in scheduling trials and should be g rante d broad discretion on the i ssue of whether or not to g rant a co n t i n uance . See Morris v. Slappy , 461 U.S. 1, 11-12 (1983). Fe dera l Rule of Criminal Pro cedur e 12(c) g ives the district court broad discretion to establish, extend, a nd enfor ce motion pre trial filing deadlines. “Only in a ca se of the

- 13 -No. 10-6394

United States v. Donald Re ynolds, Jr. most flag rant abuse will a court of appea ls revie w a trial court’s discretionar y denial of a motion to suppress as untimely .” United States v. Franc is , 646 F.2d 251, 260 ( 6th Cir. 1981). We revie w the decision to deny a F r a n ks h ea ri ng under a split standard: a district court’s finding s of fac t are revie wed for clea r err or and its conclusions of law de novo . United States v. Poulsen , 655 F.3d 492, 503 ( 6th Cir. 2011). Rey nolds a rg ues that he should ha

ve been allowed to proc eed w ith his Franks motion, and the district court abused its discretion when it did not acc ede to new counsel’s reque st to pursue the issue, even afte r the motion deadline. We do not ag ree . Fe dera l Rule of Criminal Procedur e 12(e)
states that mandatory pretria l motions — such as motions to suppress evidenc e, see Fe dera l Rule of Criminal Procedur e 12(b)( 3)(C) — are “wa ive[d] ” if not timely raised, and that the district court may g rant relief from the waiver “[ f] o r g ood cause .” Fe d. R. Crim. P. 12(e) ; see also United States v. Obiukwu , 17 F.3d 816, 819 (6th Cir. 1994)

. “Good c ause is a f lexi ble standar d heavily

depende nt

o n t h e fa ct s of the particula r case as found and weig hed by the district court in its equitabl e discretion. At a minimum , it require s the p ar ty seeking a waiver to articula te some leg itimate explanation for the fa ilure to timely file.” W alden , 625 F.3d a t 965. Her e, althoug h Rey

nolds’s lawy er filed a timely pretria l motion for a Franks hear ing, he withdrew the reque st ear ly on, and later eff orts by new counsel to rene w the motion plainly wer e untimely

. And the justifications offe red for the late chang e of strateg y did not amount to g ood cause . Rey nolds’s primary cause arg ument was that defe nse counsel d i d not enter the case unt il afte r t he motion cut-off date. Howeve r, defe nse counsel was appointed in Aug ust 2009 and did not expli citly reque st a Franks hear ing until the first day of trial, approximately seven months later. Rey nolds did - 14 -No. 10-6394

United States v. Donald Re ynolds, Jr. not reque st an extension of the motion cut-off date, prese nt any explanation for the delay , or explain why a Franks hear ing was not reque sted until the day that trial was schedule d to start. A chang e in counsel alone is not sufficie nt to constitute g ood cause to g rant relief from a waiver

. United States

v. Garcia , 528 F.3d 481, 4 8 5 (7 t h C i r. 2008) (finding no g ood cause shown wher e defe ndant switched lawy ers, but new counsel failed to reque st a new motion deadline and filed a motion four months after a

ppear ing in the c ase) ; United States v. Trancheff , 633 F.3d 697, 698 (8th Cir. 2011) (“The desire to suppress incriminating eviden ce an d the rete ntion of new counsel are not by themselves sufficie nt to establish g ood cause to justify relief from a waiver of a defe nse, objection,

or reque st under Rule 12.”). The district court proper ly exercised its discretion in deny ing the reque st. Moreove r, to be entitled to a hear ing under Franks v. Delaware , 438 U.S. 154 (1978), “a defe ndant must make ‘a substantial prelim inary showing that a false statement knowing ly and intentio n al l y , or with rec kless disreg ard for the truth, was included by the aff iant in the war

rant aff idavit and [ ] the alleg edly false statem en t i s nece ssary to the finding of probable cause .’” Poulsen , 655 F.3d at 504 (quoting United States v. Mastromatteo , 538 F.3d 535, 545 (6th Cir. 2008) (alter ation in orig inal)). Even if statements in the aff idavit are false, “a Franks hear ing is war rante d” only “[i] f, when the allege d false statement is put asi d e, the affidavit no longe r provides the court with probable cause .” Id

. at 504-05 (citing Mastromatteo , 538 F.3d at 545) (interna l quotation marks omitted). Despite Rey

nolds’s asser

tion as to the seriousness of the alleg ed irreg ularities, in his orig inal reque st for a Franks hear ing filed on April 10, 2009, he identified only one alleg edly false statement - 15 -No. 10-6394

United States v. Donald Re ynolds, Jr. and arg ued only that he would show that the statement was false. Such bare asser tion of falsehood is insufficient to constitute a showing , let alone a s u b s t an t ial preliminary showing , either that the
statement actua lly was false or that it was made intentionally or with a rec kless disreg ard for the truth. See United States v. Rose , 714 F.3d 362, 370 (6th Cir. 2013) (“Without a showing of falsity

conce rning the statements in the af fidavit, [the defenda

nt] cannot make a substantial showing that the aff iant provided statements in the aff idavit tha t he knew to be false.” ); United States v. Brown , 715 F.3d 985, 991-92 (6th Cir. 2012) (finding no substantial preliminary showing wher e defe ndant “prof fer ed no evidenc e” that an alleg edly false statement was made intentionally o r wi th rec kless disreg ard for the truth). The defe ndant did not identify any further alleg edly false statements or make any further showing as to the aff iant’s intentional use of a false statement or rec kless disreg ard for the truth when he rene wed his motion on the first day of trial. There fore , Rey nolds did not make the “substantial preliminary showing ” required to demonstrate entitlement to a Franks hear ing. Mastromatteo , 538 F.3d a t 545. There was no e rror in dealing with this i ssue. B. Multiple conspira cies Rey nolds arg ues that the g overnme nt proved two conspirac ies: a marijuana conspirac y and

a coca ine conspirac y . He asser ts that the two conspirac ies involved differ ent drug s, source s, modes of opera tion, time fra

mes, distribution methods, and customers. He main t ai n s that the only thing linking the two conspirac ies is the fac t that he and Nathanie l Smit h wer e involved in both. Rey nolds also arg ues that he wa s prejudice d by the varia nce, beca use the evidenc e of his involveme nt in the

coca ine conspirac y wa s sparse and the jury could have believed that he was only involved in distributing marijuana

but convicted him of both.

- 16 -No. 10-6394

United States v. Donald Re ynolds, Jr. Gene rally , we give fresh review to whether a variance occur red betwee n the proof and the indictment. United States v. Robinson , 547 F.3d 632, 642 (6th Cir. 2008). Howeve r, Rey nolds did
not raise the claim of a varia nce befor e the district court. There fore , this claim is revie wed for plain

err or. United States v. Caver , 470 F.3d 220, 235 (6th Cir. 2006). To obtain relief under plain err or revie w, the appellant must demonstrate that “(1) there is an ‘er ror’ ; (2) the err or is ‘cle ar or obvious, rathe r than subjec t to rea sonable disput e’; (3) the error ‘affe cted the appellant’ s substantial rig hts, which in the ordinary case means’ it ‘af fec ted the outcome of the district court proce eding s’; and (4) ‘the err or seriousl y af

fec t[ s] the fairne ss, integ rity or public reputa tion of judicial proce eding s.’” United States v. Marcus , 56 0 U. S

. 2 5 8,

--- , 130 S. Ct. 2159, 2164 (2010) (alter ation in orig inal) (quoting Puck

ett v. United States , 556 U.S. 129, 135 (2009)). I n the context of a conspirac y char g e, a varia nce constitutes reve rsible err or “only if (1) the indictment alleg ed one conspirac y , but the evidenc e can rea sonably be construed only as supporting

a finding of multipl e conspirac ies, and (2) the varia nce prejudice d the defe ndant.” United States v. W illiams , 612 F.3d 417, 423 ( 6th Cir. 2010) (interna l quotation marks omitted). “ W h e r e t h e evidenc e demonstrates only multipl e co n s p i racies, a defe ndant is prejudice d if the err or of try ing multipl e conspirac ies under a single indictment substantially influence d the outcome of the trial.” Carver , 470 F.3d at 237. The focus of the prejudice inquiry is whether there has been a transfe renc e of g uilt betwee n the members of one conspirac y and the members of another conspirac y . Ibid

. The risk of such a transfe renc e incre ases as the number of defe ndants at trial and the n u m b er of conspirac ies incre ase. Ibid

.

- 17 -No. 10-6394

United States v. Donald Re ynolds, Jr. I n this case, we find rathe r compelling the de fenda nt’s arg ument that the evidenc e showe d separ ate c onspiracie s. Howeve r, we do not see how Rey nolds was pre

judiced. Although the g overnme nt cites case law stating tha t one drug conspirac y does not become multipl e conspirac ies beca use differ ent source s wer e involved or the personne l invo l v ed i n t he conspirac y chang ed, see United States v. Johnson , 44 F. App’x 48, 49 (8th Cir. 2002); United States v. Sophie , 900 F.2d 1064, 1081 (7th Cir. 1990), t he gover nment has not pointed to a case, such a s this one, in which virtually ever y element of two scheme s was differ ent and y et only one conspirac y

was found. The only common element in these two conspirac ies was the participa tion of Rey nolds and Nathanie l Smit h. I n other respe cts, including the modus operandi , the other participa n t s , the drug s involved, the time fra me, the drug source s, and the customers, the conspirac ies wer e separ ate. I f we view the evidenc e in the light most fa vorable to the g overnme nt, as we must, we might tease out a conc lusion that only one conspiracy exis ted based on the fact that Rey nolds and S mith were involved in distributing both marijuana and coca ine, there was some evidenc e that Be tancour t sold

or attempted to sell both marijuana and coca ine t o R ey nolds, Rey

nolds sold both marijuana and

coca ine betwee n late 2006 and 2008, and he used simil ar book-kee ping and money -launde ring methods in connec tion with both his marijuana and coc aine sa les. But that stretche s the evidence b ey o n d its brea

king point. As we have held, “[t] he principal considerations in deter mi n i n g t h e number of conspirac ies are the ex i s tence of a common g oal, the nature of the scheme , and the overla pping of the participa

nts in various dealing s.” United States v. Smith , 320 F.3d 647, 652 (6th Cir. 2003). The only overla pping participa

nts in the coca ine and marijuana scheme s wer e Rey nolds and Smith, and the coca ine and marijuana distribution wer e car ried out in e ntirely

differ ent way s. - 18 -No. 10-6394

United States v. Donald Re ynolds, Jr. Under the s t an d ar d d escr ibed in Smith , the evidenc e prese nted at trial proved two separ ate conspirac ies. But Rey nolds cannot show that he was prejudice d by the varia nce he identifies. See United States v. W

arman , 578 F.3d 320, 342 (6th Cir. 2009). He arg ues that the jury could have found that he was only involved in distributing marijuana , but never theless convicted him of distributing both marijuana and coca ine, as both conspirac ies wer e char g ed as a single conspirac y . But in deter mining prejudice , we must focus on “whe ther a d an ger ex i s t s that the defe ndant was convicted based on evidenc e of a conspirac y in which the defe ndant did not participa te.” United States v. Blackwell , 459 F.3d 739, 762 (6th Cir. 2006). I n this case , there was abundant evidenc e ty ing Rey nolds to both marijuana and cocaine distribution. His contention t hat no witnesses were able t o identify him as the “D” to whom they sold coca ine in Tenne ssee is simply wrong : J oshua Correa , Carlos Be tancour t, and Alfre do Alvara do all identified Rey nol d s as “D ” and testified that they provided him with

coca ine. Moreove r, the risk of g uilt transfe renc e was attenuate d beca use Rey nolds was tried alone. United States v. Osborne , 545 F.3d 440, 444 (6th Cir. 2008); Caver , 470 F.3d at 237. Rey nolds was not prejudice d by

any varia nce tha t occur

red. C. Sufficiency

of evide nce of

firea rms convictions Rey nolds arg ues that the trial evidenc e was insufficient to support any of his four convictions for possession of a firea

rm in further ance of drug traff icking crimes under 18 U.S.C. § 924(c)

. The defe ndant moved for

a judg ment of ac quittal at t he close of proofs and aga in within fourteen da y s afte r the jury ’s verdic t. See Fe d. R. Crim. P. 29( c). The ref ore, w e g ive fre sh revie w to the district court’s deter

mination of the sufficie ncy of the evidenc e. United States v. Humphrey , 279 F.3d 372, - 19 -No. 10-6394

United States v. Donald Re ynolds, Jr. 378 (6th Cir. 2002). We will uphold the verdic t if, “af ter view i n g t h e ev i d ence in the light most favor able to the prosec ution, any rational trier of fac t could have found the essential elements of the crime bey ond a rea sonable doubt.” Jack son v. Virginia , 443 U.S. 307, 319 (1979). Circumstantial evidenc e alone may support a verdic t of g uilt if it is “ substantial a nd competent.” United States v. Talley , 194 F.3d 758, 765 ( 6th Cir. 1999). We have held that 18 U.S.C. § 924(c) define s two separ ate offe nses: first , using or car ry ing

a firea rm “during and in r elation to” a drug traff icking crime; and second , possessing a firea rm “in further ance of” a drug traff icking crime. United States v. Combs , 369 F.3d 925, 9 3 0 -3 2 (6th Cir. 2004). The distinction is not without a differ ence . For the first offe nse, proof of use or car ry ing is

more rig orous that proof of mere possession. Id. at 932-33 (citing Bailey v. United States , 516 U.S. 137, 143 (1995), and Muscare llo v. United States , 524 U.S. 125, 126-27 (1998))

. And for the second

o ffe nse, proving the “in further ance ” element is more demanding than proving the “during an d rela tion to” element of the first offe nse. Id. at 933. The parties ag ree her e t h at t he four firea rms counts of the se cond super seding indictment char g ed “posse ssion” “in furthe ranc e of.” The possession element of the crime is satisfied by demonstrating that a defe ndant had actua l

or constructive possession of the firea rm. United States v. Bailey , 553 F.3d 940, 944 (6th Cir. 2009). An individual ha s actua l posse ssion of a firea rm if it is under his direc t phy sical control. Ibid

. An individual has constructive possession of a firea rm if he “does not have actua l possession but instead knowingly has the power and the intention at a g iven time to exercise dominion and control over an object, either direc tly or throug h others.” Ibid

. (quoting United States v. C r a ve n , 4 7 8 F.2d 1329, 1333 (6th Cir. 1973)). - 20 -No. 10-6394

United States v. Donald Re ynolds, Jr. I n order to establish the “in further ance ” prong , the g overnme nt must demonstrate a “spec ific

nexus betwee n the g un and the crime char g ed.” United States v. Mack ey , 265 F.3d 457, 462 (6th Cir. 2001). This nexus can be e stablished by showing that the g un is “strateg ically located so that it is quickly and easily available for use,” which require s more t h an a mere showing that a defe ndant possessed a firea

rm on the same premises wher e a drug transac tion took place

. Ibid

. Among the fac tors to be consider ed in deter mining whether a def

endant ha s possessed a g un in further ance of

a drug traff

icking crime are “whe ther th e gu n wa s loaded, the ty pe of wea pon, the leg ality of its possession, the ty

pe of drug activity conducte d, and t h e t i me and circ umstances under which the firea rm was f ound.” Ibid

. Rey nolds does not dispute that he possessed the firea rms char g ed in eac h of the four counts. The only rema ining question is wheth er t he proofs demonstrate possession of the firea rms “in further ance ” of drug traff

icking

. We find the evidenc e is more than sufficie nt to support eac h of the g un convictions. Rey nolds’s first conviction was for possession of a Bushmaste r assault rifle in Dec ember 2006, when he trave led to Nashville fr om K nox ville w ith the rifle, intending to rec laim marijuana that had b ee n s t o len from Smit h at g unpoint. Rey nolds arg ues that seeking reve ng e on the individuals who stole the marijuana has nothing to do with his drug traff icking crime. Howeve r, as the g overnme nt observe s, the crime of conspirac y to distribute marijuana is not limit ed to the actua l distribution of marijuana , and the jury rea sonably

could have found that Rey nolds carr ied the rifle
to aid i n his attempted retrieval of mar i j u an a and to protec t him on his expedition. We have held consistently th at p ossessing a g un as protec tion in the course of drug traff icking is sufficie nt to - 21 -No. 10-6394

United States v. Donald Re ynolds, Jr. satisfy the “in further ance ” element. See United States v. Thornton , 609 F.3d 3 7 3 , 3 8 1 (6t h Cir. 2010); United States v. Moha mm a d , 501 F. App’x 431, 439-40 (6th Cir. 2012); United States v. Kelsor , 665 F.3d 684, 693 (6th Cir. 2011) ; United States v. Thornton , 609 F. 3d 373, 381 (6th Cir. 2010); United States v. Craft , 150 F. App’x 413, 416 (6th C ir. 2005); see also United States v. Bec kford , 176 F. App’x 299, 302-03 (3d Cir. 2006) (finding that a defe ndant used a firea rm in further ance of a drug traff icking offe nse when he broug ht the firea rm with him to confr ont a person who had “misplace d” some of the defe ndan t’s marijuana ). The evidenc e is sufficie nt to support Rey nolds’s conviction on this count. Rey nolds’s second firea

rm conviction was for his possession of two loaded g uns, including an Uzi, during his first fac e-to-f ace meeting with Be tancour t. Be tancour

t testified that he wa s not

s u rp ri sed that Rey

nolds would car

ry wea pons to a first meeting with a new supplier. T h e j u ry

rea sonably could have found that Rey nolds carr ied the fire arms to that meeting for protec tion. As discussed above, that would be sufficie nt to support the conviction. The jury also could have found, based on Be tancour

t’s testimony , that Rey

nolds g ave the g uns to Be tancour t as collater al for sever al kilogr ams of cocaine. See United States v. Reyes , 362 F.3d 536, 543 (8th Cir. 2004) (finding that wher e a defe ndant provided a drug purcha ser with a g un as a “trust-see king transac tion” to fac ilitate future drug transac tions, a rea sonable jury could fi n d t h at t he defe ndant possessed the g un in further ance of a drug traff icking crime)

. I n either case, the evidenc e was sufficie nt t o s u pport the second c onviction. Rey nolds’s third conviction was for the possession of an a ssault rifle that was mounted on

a tripod in his baseme nt and pointed at the door. The evidenc e demonstrated that the g un was rea dily - 22 -No. 10-6394

United States v. Donald Re ynolds, Jr. available in a room whe re Rey nolds eng ag ed in many

drugtransac tions and that it was posit ioned fac ing the door in a way that likely was meant to intimi date those with whom Rey nolds did business. See Mack ey , 265 F.3d at 462. A jury rea sonably could have found that Rey nolds possessed the g un and positioned it in the baseme nt in order to protect himself during the drug transac tions that took place there

. T h e fourth conviction was for the possession of a FN Her stel 5.7 rifle, descr ibed i n t h e testimony as a “cop- killer,” which Rey nolds g ave to Be tancour

t. The testimony at trial establishes that Be tancour

t, who was Rey

nolds’s main contac t w ith his coca ine suppliers, pre viously had told Rey nolds that the Mexi can car tel wanted such g uns. Rey nolds argu es t h at the only basis for this char g e wa s the prese nce of the firea rm in the Rey

nolds’s home; howeve r, Be tancour t te stified that Rey nolds g ave him this wea

pon. Viewe d in the light most favor able to the g overnme nt, a rea sonable jury could find that Rey

nolds g ave Be tancour

t th is w e a p o n to further his drug -traf ficking rela

tionship with Be tancour

t. We find no defe ct in the suffic iency of proof of the fir ear

ms convictions. D. Sufficienc y

of evide nce of

money launder ing The defe ndant contends that his money launder ing convictions must be reve rsed beca use the g overnment failed to prove an intent to conce al. We employ the same standard of revie w as discussed in the pre vious section. The defe ndant’s arg ument is complicated somewhat by the fac t that the indictment char g ed three differ ent specie s of money launder ing in its various counts: (a) eng ag ing in monetary transac tions in proper

ty derive d from a specifie d unlawful activity in violation of 18 U.S.C. § 1957;

- 23 -No. 10-6394

United States v. Donald Re ynolds, Jr. (b) promotional money launder ing in violation of 18 U.S.C. § 1956(a) (1)( A)(i) ; and (c) conce alment money launder ing in violation of 18 U.S.C. § 1956(a) (1)( B) (i). The indictment ref ers to 18 U.S.C. § 1956(h), which is the conspirac y section and incorporates all forms of money l au n d ering in sections 1956 and 1957. Rey nolds challeng es only the sufficie ncy of the evidenc e prese nted that he intend ed t o

conce al the fa ct that his funds wer e der ived from illeg al ac tivity

. Of the eleve n money launder ing counts, only four dealt with conce alment money launder ing. Concea lment is not an element of promotional money launder ing (count 32), United States v. Ree d , 264 F.3d 640, 650 (6th Cir. 2001),

or unlawful activity money launder ing (counts 29, 30, 31, 36, 37, and 38), See United States v. Kratt , 579 F.3d 558, 560 ( 6th Cir. 2009). Count eleve n of the second superse d i n g indictment char g ed the defe ndant under both the promotion and conce alment portions of the statute. Rey nolds properly

could have been c onvicted solely under the promotional portion of this count without proof of the intent to conce al. See United States v. Miller , 471 U.S. 130, 136 (1985) (holding that convictions may be sustained “as long as the proof upon which they are based corr espon d s t o an o ffe nse that was clea rly set out in the indictment”); United States v. W einstock , 153 F.3d 272, 279 (6th Cir. 1998). There fore , to the extent that Rey nolds seeks revie w of his convictions of counts 29 throug h 32 an d 3 6 t h ro u g h 38, the arg ument is deeme d waived, as Rey nolds has not prese nted any arg ument that actua lly undermines those convictions. United States v. Layne , 192 F.3d 556, 566- 67 (6th Cir. 1999). The three convictions for conce alment money launder ing all involve Americ an Ex press transac tions. Rey

nolds arg ues that the g overnme nt proved only that he used potentially illega l funds - 24 -No. 10-6394

United States v. Donald Re ynolds, Jr. to fund those purcha ses. Howeve r, Agent Grove ’s testimony at trial demonstrated that Rey nolds funnele d cash into various corpor ate bank acc ounts, making deposits that normally wer e s ma ll e r than $10,000, and sometimes moved cash betwee n the various bank acc ounts. Rey nolds then used those
structure d funds to make p aym en t s o n his Americ an Ex press car d purcha ses. Moreove r, both Antonio Sa n t a Cruz and Carlos Be tancour t testified that Rey

nolds soug ht to avoid “re d flag s” by making deposits of less than $10,000, sug g esting an intent to conce al the orig ins of those deposits. That evidenc e is sufficie nt to sustain a conviction for conce alment money launder ing. United States

v. W arshak , 631 F.3d 266, 320-21 6th Cir. 2010) (finding that a complex se quence of transac tions would permit a rea sonable juror to conclude that the transac tio n s we re underta ken to conce al the

source of the money even wher e the individual transac tions wer e made openly ); United Stat es v. Beddow , 957 F.2d 1330, 1335 (6th Cir. 1992) (holding that evidenc e of “convolut ed fi n ancia l dealing s” with banks supported a conclusion that the defe ndant intended to conce al the source of his funds). Rey

nolds’s relianc e on W

arshak is misplaced. I n that case , we held that one defe ndant had eng ag ed in a complex series of trans ac t i o n s t h at supported a finding of an intent to conce al. The
court contra sted that d e f

e n d a n t’ s behavior with that of a second defe ndant who eng ag ed in “re latively simple” tr a

n sactions involving “lar g e amounts that would not easily have esca ped the notice of banks and reg ulators.” W

arshak , 631 F.3d at 323. Rey nolds, w ho eng ag ed in c omplex transac tions with deposits under $10,000, rese mbles the first defe ndan t much more closely

. L ikewise, Rey nolds’s citation of United States v. Marshall , 248 F.3d 525, 540-41 (6th Cir. 2 0 0 1 ), d o es not aid his

- 25 -No. 10-6394

United States v. Donald Re ynolds, Jr. arg ument, as t he defenda

nt in that case mere ly purcha sed l ux ury g oods with his i l l ega l p ro ce eds. There was no wa

nt of proof on the conce alment money launder ing c ounts. E. “Expert” witness testimony Rey nolds arg ues t h at t h e testimony of DEA ag ent David L ewis was improper beca use he testified in a summary fashion, direc ted the jury to a verdic t, and provided a closing arg ument from the stand. The defe ndant objected only to one aspec t of L ewis’s testimony : his char acte rization and descr ip t i o n o f t h e contents of the drug ledg er. We revie w that evidentiar y ruling for abuse of discretion. United States v. Ashraf , 628 F.3d 813, 826 (6th Cir. 2011). “A district court abuses its discretion when it relies on clea rly err oneous finding s of fac t, improperly applies the law, or uses an

err oneous leg al standar d.” United States v. Chambers , 441 F.3d 438, 446 ( 6th Cir. 2006) (interna l quotation marks omitted). The admission of expert testimony is evalua ted under the same standard. United St ates v. Bender , 265 F.3d 464, 472 (6th C i r. 2 0 0 1). But where no objection was made at trial, as is the case with many other a spects of L ewis’s testimony , we will r eview the admission of expert testimony

for plain e rror . United States v. J ohnson , 488 F.3d 690, 697 ( 6th Cir. 2007). “L aw enfor ceme nt office rs may testify conce rning the methods and techniques employ ed in

an ar ea of criminal ac tivity

and to establish ‘modus oper andi’ of particular crimes. Know ledg e of

s u ch activity is g ener ally ‘bey ond the understanding of the aver ag e lay man.’” United S t a t es v. Pearce , 912 F.2d 159, 163 (6th Cir. 19 9 0 ) (q u o t ing United St ates v. Espinos a , 827 F.2d 604, 611 (9th Cir. 1987)). Howeve r, an expert witness may not testify “that a defe ndant in a criminal case did

or did not have the requisite mental state or condition constituting an element of the crime char g ed,

as ultimate issues are matters for the trier of fac t.” United States v. Combs , 369 F.3d 925, 940 (6th - 26 -No. 10-6394

United States v. Donald Re ynolds, Jr. Cir. 2004); Fe d. R. Evid. 704(b). I n deter mining whether the expert proff ere d testimony

as t o the intent of the defe ndant, the Court should examine “whe ther the expert actua lly ref err ed to the intent of the defe ndant or, instead, simply descr ibed in g ener al terms the common prac tices of those who clea rly do possess the requisite intent.” United States v. Frost , 125 F.3d 346, 383-84 (6th Cir. 1997) (quoting United States v. Lipscomb , 14 F.3d 1236, 1239 ( 7th Cir. 1994)). The admission of L ewis’s testimony as to the contents of the drug ledg er — the only testimony by L ewis to which defe nse coun s el objected at trial — was not an abuse of discretion beca use it was within the scope of L ewis’s expertise in the methods employ ed by drug traff icker s. United States v. Lopez-Me dina , 461 F.3d 724, 742-43 (6th Cir. 2006). Howeve r, L ewis testified to much more than that, and in doing so trespasse d far into forbidden territory

. His testimony that the drug ledg er corr oborate d witness testimony in the case , that Rey nolds c arr ied fire arms for specific purposes, a

nd that he personally believed Rey nolds to be a dr

ug deale r plainly

was improper , as it was not base d on L ewis’s e x pertise, imprope rly invaded the jur

y ’s role as the ultimate fac t-finder , and was impermissible testimony as to the defe ndant’s intent. Combs , 369 F.3d at 940 (stating that

an expert witness may not testify to the intent of the defe ndant); see also W arshak , 631 F.3d at 324 (finding improper testimony that transac tions wer e underta ken with an “intent to conce al”) ; United States v. Hende rson , 626 F.3d 3 2 6 , 3 3 7 (6 t h C ir. 2010) (holding that the question of a witness’s

cre dibilit y is one for the jury ); United States v. Smith , 601 F.3d 530, 540 (6th Cir. 2010) (citing with approva l United States v. Cruz , 981 F.3d 659, 663 (2d Cir. 1992) (holding that testimony that was, in effe ct, a state ment by

a police e x pert that a

fac t witness was believa

ble was imprope r))

.

- 27 -No. 10-6394

United States v. Donald Re ynolds, Jr. But because Rey

nolds did not object to t his testimony at trial, we revie w the re ceipt of the evidenc e only

for plain e rror . “Plain err or occ urs wher e ther e is (1) e rror , (2) that is plain, and ( 3) that aff ects substantial rig hts. I f all t hree conditions are me t, an appe llate cour t may then exercise its discretion t o notice a forf eited err or, but only if (4) the err or seriously aff ects the fairne ss, integ rity , or public reputa tion of judicial proce eding s.” United States v. Ehle , 640 F.3d 689, 699 (6th Cir. 2011) (interna l quotat i o n m ar k s and altera tions omitted). I n three of the instances of Mr. L ewis’s unfortunate testimony — aff irming the cre dibilit y of the witnesses, discussing Rey nolds’s

rea sons for carry

ing a firearm, and stating that he believe d that Rey nolds was a dr

ug deale r — the fi rst two require ments of plain err or revie w are met. The admission of this testimony was er ro r. Moreove r, that err or was plain. The fac t that this court previously has app ro v ed of L ewis’s testimony in other ca ses does not alter this fact. Howeve r, Rey

nolds’s arg ument fails on the third and fourth require ments for three rea sons. First, at the close of L ewis’s first day of testimony , and ag ain during the final jury instructions, the district court instructed the jury that it wa s not r equire d to acc ept any thing that L ewis said. Jurors

are presumed to f

ollow suc h instructions. United States v. Olano , 507 U.S. 725, 740 (1993). And proper jury instructions can m i t i gat e the prejudice resulting from improper testimony

. Slagle v. Bagley , 457 F.3d 501, 526 ( 6th Cir. 2006). Second, as the gover

nment observe s, L ewis’s testim ony as t o his belief tha t Rey nolds was

a drug deale r was occa sioned by defe nse questioning. Neither of the case s that the g overnme nt cites in support of this arg ument state that testimony occa sioned by defe nse questioning cannot be err or,

or even that such testimony should be scrutini z ed more closely

. See United States v. Parish , 606 - 28 -No. 10-6394

United States v. Donald Re ynolds, Jr. F. 3d 480, 490-91 (8th Cir. 2010) (discussing a defe ndant’s objection to a response to a questio n posed by the g overnme nt to the g overnme nt’s expert witnesses); United States v. Sharpe , 996 F.2d 125, 128-29 (6th Cir. 1993) (stating that the court will not find plain err or based on a mistaken jury instruction if the instruction was reque sted by the defe ndant). Howeve r, we have held that under the invited err or doctrine, “whe re the injection of alleg edly inadmissible evidenc e is attributable to the action of the party

seeking to exclude that evidence , its int roduction does not constitute re versible

err or.” All American Life & Cas. Co. v. Oce anic Trade Alliance Council I nt’l, Inc. , 756 F.2d 474, 479-80 (6th Cir. 1985). The f act that L ewis’s stateme nts came in re sponse to de fense questioning

— questioning that, at l east in one ins tance , seeme d to invite the prec ise response g iven by Ag ent L ewis — sug g ests that the testimony is less likely to have “ser iously aff ect[ed] the fairne ss, integ rity , or public re putation of judicial proce eding s.” Ehle , 640 F.3d a t 699. Third, the improper testimony is less likely to have aff ecte d the defe ndant’s substantial rig hts beca use t he other evidenc e ag ainst him was overw helming. T he g overnme nt prese nted t estimony from sever al co-c onspirators detailing Rey nolds’s drug traff

icking activities over a span of sever al y ear s, testimony of an individual from whom Rey nolds had purcha sed numerous car s using cash, and the t estimony

of Ag ent Grove that Rey nolds appea

red to ha ve no legitimate source of income and that drug packa g ing materia ls had been found outside Rey nolds’s house. I n light of this

overw helming evidence of R ey nolds’s g u i l t , i t is unlikely that Ag ent L ewis’s im proper testimony aff ecte d the defe ndant’s substantial rig hts or seriously aff ecte d the fairne ss, i n t egrity , or public reputa tion of the proce eding s. See W arshak , 631 F.3d at 325 (finding t h at al t h o u g h an expert witness’s testimony as to a defe ndant’s intent was err or, the err or was harmless beca use of the larg e - 29 -No. 10-6394

United States v. Donald Re ynolds, Jr. amount of evidenc e ag ainst the defe ndant and the g overnme nt’s clar ification that it was not seeking evidenc e of the defe ndant’s intent). We conclude , there fore t h at althoug h much of Ag ent L ewis’s testimony plainly was improper, irrele vant, unhelpful to the jury , and prejudicia l t o the defe ndant, the plain err or rule prec ludes reve rsal. F. The sequestra tion ruling The defendant contends that the district court err ed by exempting L ewis from the sequestra tion order. We re view that issue for abuse of discretion. Ashraf

, 628 F.3d a t 826. Fe dera l Rule of Evidence 615 states that “[a]t a party ’s reque st, the court mus t order witnesses excluded so that they cannot hear other witnesses’ testimony .” Fe d. R. Evid. 615. But the rule specific ally states that “a person whose prese nce a party shows to be essential to prese nting the party ’s claim or defe nse” may stay

. Fe d. R. Evid. 615(c)

. A classic example of that exception is “an expert witness who does not te stify to the fac ts of the case but rather g ives his opinion base d upon the testimony

of others.” Morvant v. Construction Aggregates Corp. , 570 F.2d 626, 629 ( 6th Cir. 1978); see also United States v. Mohney , 949 F.2 d 1 3 9 7, 1404-05 (6th Cir. 1991) (adopting this

rea soning in the c riminal context). Plainly , the di strict court’s decision to exempt L ewis fr om the sequestra tion order was not

an abuse of discretion. The g overnme nt proposed to call L ewis to te stify as an expert witness, and L ewis, who did not participa te persona lly in the in v es t iga tion, was to base his opinion on the testimony g iven at trial. I n such circ umstances, a trial court’s decision to exempt a witness from a

- 30 -No. 10-6394

United States v. Donald Re ynolds, Jr. sequestra tion order “should not normally be disturbed on appea l,” Morvant , 570 F.2d at 630, and we will not do so here. G. Refusa l to allow reope ning pr oofs After testimony , the j ury beg an it s delibera tions on March 5, 2010, a Fr iday

. On M onday , Marc h 8, 2010, the jury indicated that it was prepa red to return a verdic t. Shortly befor e that point, the defe ndant filed a motion to reope n the proofs, alleg ing that the defe ndant had located a witness who could testify that in 2004 he g ave Rey no l d s $ 2 2 5 ,000 in cash to assist him in the music business. The C ourt denied the motion because it was untimely , the evidenc e re lated to an e arlier time frame t han the events in the case, and the proof the wit ness proposed to offer was unverified and unsworn. T h e d ef

en d ant contends the ruling was err oneous. A district court’s decision on a motion to re- open the proof is r eviewe d for abuse of discretion. United States v. Blankenship , 775 F.2d 735, 741 ( 6th Cir. 1985). I n deciding a m o t i o n t o re- open the proofs afte r both parties have rested, the court must consider three fac tors: the timeliness of the motion, the char acte r of the testimony , and the eff ect of g ranting the motion. Blankenship , 7 7 5 F.3d at 741. Of these three fac tors, the most important is whether the opposing party will be prejudice d if the proof is re- opened. Ibid

. The key fac tor in the prejudice inquiry is the timeliness of the motion; re- opening the case is more likely to be prejudicia l when soug ht “af

ter all parties have rested, or . . . the case has been submitt ed to the jury .” Ibid

. The party seeking to re- open the case “should provide a rea sonable explanation for failure to prese nt the evidenc e in its case -in-chie f.” Ibid

. (quoting United States v. Thetford , 676 F.2d 170, 182 (5th Cir. 1982)). - 31 -No. 10-6394

United States v. Donald Re ynolds, Jr. Rey nolds’s motion to re- open the proof was not timely , as it was filed afte r both parties had conclude d their case s and prese nted closing arg uments, the court had instructed the jury , and the jury

was delibera ting. Prejudice to the g overnme nt would have been likely ; Blankenship makes clea r that the risk of prejudice increase s when a motion is made after th e p ar t i es have rested or the case has been submitted to the jury . Her e, the jury was knoc king on the door with its verdict. The proposed testimony would not have assisted the defe nse so substantially as to rende r the district court’s decision an abuse of di scre tion. I t is tru e t hat t he gover nment’s case rested in part

on the fac t that Rey

nolds had wea lth that could not be explained by leg itimate business. Howeve r, the g overnme nt also prese nted testimony from num er o u s drug suppliers, purcha sers, and coconspirator s in support of i ts alleg ation that Rey nolds was invol ved in drug traff icking . Evidence
t h at an individual had provided Rey nolds with funds in 2004 would do littl e to undermi n e t h at testimony , espec ially considering that the g overnme nt provided evidenc e that Rey nolds had acc ess to wealth fa

r in excess of the $225,000 a lleg edly supplied by

the prospec tive witness. And Rey nolds did not provide any explanation why he could not loc ate the witness befor e the close of his case , or even a repr esenta tion that he was try ing to find him. Presumably , he himself had knowledg e of this c ash pay ment by the prospec tive witness; there was nothing preve nting him from seeking out the witness in the months leading up to the trial. There was no abuse of discretion in failing to reope n the proofs. See United States v. Baye r , 331 U.S. 532, 537-39 (1947) (finding that

a failure to re- open proof to introduce defe ndant’s evidenc e afte r the case had been submitt ed to the jury was not reve rsible err or); Grotto v. Herbe rt , 316 F.3d 198, 208 (2d Cir. 2003) (finding no err or wher e a trial court denied defe ndant’s motion to re- open proofs prior to closing arg uments beca use - 32 -No. 10-6394

United States v. Donald Re ynolds, Jr. there was no foundation for the testimony and the jury might have g iven the evidenc e unwar rante d weig ht); United States v. Nick , 398 F. App’x 404, 410-12 (10th Cir. 2010) (finding n o ab u s e of discretion in district court’s decision to deny defe ndant’s motion to re- open proofs afte r both parties had re sted and the c ourt had instructe d the jury wher e the defe ndant g ave no excuse for his fa ilure to present the te stimony

ear lier). H. Misconduct during closing arg ument Ordinar ily , whether a prosec utor has committed misconduct in closing arg uments is a mix ed question of law and fac t that is revie wed de novo . United States v. Emuegbunam , 268 F.3d 377, 403- 04 (6th Cir. 2001). Be cause there was no objection in the trial court, howeve r, we revie w for plain

err or. United States v. Be nson , 591 F.3d 491, 499 ( 6th Cir. 2010). Rey nolds’s claims of improper ar gu m ent fall into three cate g ories: first , the prosec utor’s arg ument that Rey

nolds broug ht Mexi can drug car tels to the are a constituted a “sca re tactic” ; second , the g overnme nt misrepre sented the money launder ing counts to the jury by impl y i n g t h at

conce alment was not an element of the offe nse; and third , the g overnme nt’s statements implied that the def endant should have prese nted evidenc e to the jury

. A prosec utor may not misrepre sent the evidenc e, express persona l belief in the defe ndant’s g uilt, vouch for witnesses, attempt to shift the burden of pro o f t o t h e d ef endant, or appea l to the passions, fea

rs, or prejudice s of the jury

. United States v. W iedyk , 71 F.3d 602, 611 (6th Cir. 1995); United St ates v. C

ausey , 834 F.2d 1277, 1283 (6th Cir. 1987); Byrd v. Collins , 209 F.3d 486, 537 (6th Cir. 2000); United States v. Bond , 22 F.3d 662, 669 ( 6th Cir. 1994) ; United States v. Solivan , 937 F.2d 1146, 1151 (6th Cir. 1991)

. Howeve r, the prosec utor is f ree to “ summarize the evidenc e - 33 -No. 10-6394

United States v. Donald Re ynolds, Jr. and comment on its quantitative and qualitative signific ance ,” Bond , 22 F.3d at 669, and may “ar g ue the rec ord, highlig ht the inconsistencies or inadequa cies of t h e defe nse, and forc efully asser t

rea sonable infe renc es fr om the evidenc e,” Bates v. Be ll , 402 F.3d 635, 646 ( 6th Cir. 2005). I f the Court deter

mines t h at the prosec utor’s arg ument was improper, it must then inquire whether it was flag rant and war rants reve rsal. Emuegbunam , 268 F.3d at 404 (citing United States

v. Tocco , 200 F.3d 401, 420-21 (6th Cir. 2000) ). To deter mine whether an arg

ument was flag rant, the Court examines four fac tors: “1) whether the statements tended to mislead the jury or prejudice the defe ndant; 2) whether the statements wer e isolated or among a series of improper statements; 3) whether the statements wer e delibera tely or acc identally befor e the jury ; and 4) the total streng th of the evidenc e ag ainst the ac cused.” Tocco , 200 F.3d a t 420 (citations and interna l quotation marks omitted). I f the arg ument was not flag rant, reve rsal may never theless be war

rante d if “1) the proof of the defe ndant’s g uilt is not overw helming; 2) the defe nse counsel objected; and 3) the trial court failed to cure the impropriety by failing to admonish the jury

. ” Id

. at 4 2 1 (citations and internal quotation marks omitted). The g overnme nt’s arg

ument that the defe ndant broug ht Mexi can drug car tels into the local community is the sort o f a

p p e a l to the jury ’s passions or prejudice s that would constitute misconduct. See Solivan , 937 F.2d at 1148 (finding that a prosec utor’s reque st to the jury to “tell [t he defe ndant] and all of the other drug deale rs like her

. . . [t ]hat we don’t want that stuff in Northern K entucky ” constituted reve rsible err or, espec ial l y i n l i gh t of the heig htened rhetoric surrounding the war on drug s). Her e, althoug h the prosec utor did not expli citly ask the jurors to s en d a messag e to other criminals with their verdic t as was found impermissible in Solivan , the prosec utor did imply that the - 34 -No. 10-6394

United States v. Donald Re ynolds, Jr. defe ndant repr esente d a dang er to the community and sug g ested that a conviction would result in the Mexi can car

tels leaving Kn o x v i l l e. T he prosec utor’s statements clea rly wer e an “attempt

. . . to associate the def

endant with a f

ear ed and hig hly

publicized gr oup.” Id. at 1154. But the misconduct was not flag rant. The statements wer e isolated. They “did not mislead the jury beca

use it did not marshal them to punish all the drug d ea l ers in their community by convicting [t he defe ndant]; rathe r, the comment acc urate ly id e n ti f ie d [R e y n o ld s ] a s [a ] drug deale r[] ” who dealt with a Mexi can car tel. United States v. W

ettstain , 618 F.3d 577, 589-90 (6th Cir. 2010). There is no evidenc e that the prosec utor intentionally soug ht to mislead or prejudice the jury

. And,

as noted above, the case ag ainst the defe ndant was strong

. We d o n o t fi nd that the prosec utor’s statements “ser iously aff ect[ed] the fairne ss, integ rity , or public reputa tion of the jud icial proce eding s.” United States v. He nry , 545 F.3d 367, 384 ( 6th Cir. 2008). The defe ndant’s complaint ab o u t the g overnme nt’s descr iption of the money launder ing

cr i m es does not war

rant relief beca

use the descr iption was not improper. As discussed above, Rey nolds was char g ed with money launder ing under 18 U.S

. C

. § 1 957, which does prohibit
transac tions such as those descr ibed by the prosec utor, and does not require an inte nt to conce al. There fore , the prosec utor’s statement wa s a cor rec t statement of the law

. The prosec utor’s statements that Rey nolds could have called Courtney Hensley as a witness and that there wa s no evidenc e that a Super Bow l party had ever occurr ed was not improper. The witness comment was a response to defe nse counsel’s repe ated arg ument that the prosec utor did not call C o u rt n ey He nsley to the stand to testify , and there fore was “invited by defe nse counsel’s conduct.” United States v. Gonzalez , 512 F.3d 285, 292 (6th Cir. 2008) (citing United States v. - 35 -No. 10-6394

United States v. Donald Re ynolds, Jr. Barnett , 398 F.3d 5 1 6 , 522-23 (6th Cir. 2005)). The arg ument that there was no evidenc e that a Super Bow l party took place is “best char acte rized as an attempt to summarize the ev i d en ce and
comment on its probative value, with minimal prejudice to [t he] defe ndant.” Bond , 22 F.3d at 669. Although the defe ndant is not require d to produce any evidenc e, the prosec utor is p ermitted to comment on the “quantitative and qualitative signific ance ” of the evidenc e. Ibid

. The prosec utor’s statement was not err or. See Bates , 402 F.3d at 646 (“To be cer tain, prosec utors can arg ue the

rec ord, highlig ht the inconsistencies or inadequa cies of the defe nse, and forc efully asser t rea sonable infere nces f

rom the evide nce.” ). The prosec utor’s comment that the defe ndant had the power to subpoena Courtney Hensley i s more troubling. Howeve r, as the g overnme nt notes, this statement was a response to def en s e counsel’s repe ated arg ument that the prosec utor did not call Courtney Hensley to the stand to testify

. This context makes it less likely that the jury would “natur ally and nece ssarily ” construe t h e prosec utor’s statement as a comment on the appellant’ s silence. Bond , 22 F.3d at 669. I nstead, the jury more likely believed that the statement was intended to rebut defe nse counsel’s implication that the g overnme nt was attempting to hide Courtney Hensley

. I ndeed, when examining whether a prosec utor’s rema

rks are improper, the court should consider the rema rks “with particula

r attention
to w hether

they may have be en invited by

defe nse counse l’s conduct.” Gonzalez , 512 F.3d at 292 (citing Barnett , 398 F.3d at 522-23). I n addition, as noted above, the evidenc e ag ainst the appellant was overwhelming

. The Court finds, there fore , that the prosecutor’s comments did no t adver sely aff ect Rey nolds’s substantial rights. No r elief is wa rra nted on this claim of er

ror.

- 36 -No. 10-6394

United States v. Donald Re ynolds, Jr. I

. Sentencing err or Rey nolds arg ues that his sentenc e of life plus 900 months was unreasona ble i n light of the fac ts of the case and his backg round. He believes that eac h of the fa ct o rs i n 1 8 U.S .C. § 3553(a)

war rante d a sentence of no more than e ighty -five y ear s, and he offe rs t hree rea sons. First , he had

no criminal rec ord, had attended colleg e, and was amena ble to reha

bilitation. Second, the sentenc e did not serve the needs of deter renc e or reha

bilitation, and althoug h it met the g oal of retribution, it

was “ove rk ill.” Third , the sentenc e cre ates unwar rante d disparities beca

use simil arly situated defe ndants in this circuit have r ece ived much shorter sentenc es. We r eview the rea sonablene ss of a sentenc e using an abuse- of-discr etion standard. United States v. Carter , 510 F.3d 593, 6 0 0 (6 t h C i r. 2007) (citing Gall v. United States , 552 U.S. 38, 46 (2007). A sentenc e must be both substantively and proced u ra lly rea sonable. Ibid. We first must

assure ourselves that “the district court committed no signific ant proce dural err or, such as failing to

ca l cu l at e (or improperly calc ulating) the Guidelines rang e, trea ting the Guidelines as mandatory , failing to consider the § 3553(a) fac tors, selec ting a sentenc e based on clea rly err oneous fac ts, o r failing to adequa

tely explain the chosen sentenc e. ” Gall , 552 U.S. at 51. I f the sentenc e is proce durally rea sonable, we must then examine the sentenc e for substanti v e u nr e a sonablene ss. Ibid

. A sentenc e may be found to be substantively unrea sonable if the sentenc ing judge “sele cts a sentenc e arbitra rily , bases the sentenc e on impermissible fac tors, fails to consider rele vant sentenc ing fac tors,

or g ives an unrea sonable amount of weig ht to any pertinent fac tor.” United States v. Conatser , 514 F.3d 508, 520 ( 6th Cir. 2008).

- 37 -No. 10-6394

United States v. Donald Re ynolds, Jr. “District courts are obliga ted to impose ‘a sentenc e sufficie nt, but not g rea ter than nece ssary ’ to fulfill the purposes of sentenc ing.” United States v. Lanning , 633 F.3d 469, 474 (6th Cir. 2011) (quoting 18 U.S.C. § 3553(a) ). Howeve r, we g rant significa nt defe renc e to sentenc es i mposed by the trial court beca

use of the trial court’s g rea ter ability to find fac t s an d deter mine their import. United States v. Maybe rry , 540 F.3d 506, 519 (6th Cir. 2008). And if the senten ce i s wi thin the g uideline rang e, we apply a presumption of rea sonablene ss. United States v. Vonner , 516 F.3d 382, 389-90 (6th Cir. 2008) (e n banc)

. Rey nolds has not alleg ed that his sentenc e was proce durally unrea sonable, and it was within the g uidel i n e ra ng e. Howeve r, he arg ues that the sentenc e does not achie ve the purpose of reha bilitation and that the district court improperly fa i l ed to take into acc ount his amena bility to reha bilitation. We have rec og nized that reha bilitation rema ins an important g oal within the criminal justice sy stem, particula

rl y w h e n considering sentenc ing options other than prison and administering

s u p er v i sed rele ase. United States v. Dee n , 706 F.3d 760, 763-64 (6th Cir. 2013). And as th e g overnme nt points out, the Supreme Court held that sentenc ing courts are prec luded “fr om imposing

or leng thening a prison term to promote an offe nder’ s reha bilitation.” Tapia v. Uni t ed S t a t es , --- U.S.

--- , 131 S. Ct. 2382, 2391 (2011). But once the court has chosen prison as th e ap p ro p ri at e sentenc ing option (the other two being probation or a fine, 18 U.S.C. § 3551(b)) — a choice that in this case is bey o n d d ebate — reha bilitation drops out of t he calculus when deciding on the l eng th of the prison term. Ibid

. (“Cong ress d i d n o t intend that courts consider offe nders’ reha bilitative needs when imposing prison sentenc es.”) ; but see id. at 2390 n.5 (noting the g overnme nt’s arg ument that “‘Cong ress did not int end to prohibit courts from imposing less imprisonment in order to - 38 -No. 10-6394

United States v. Donald Re ynolds, Jr. promote a defe nd ant’s reha bilitation[ ,]’” a position that the Supreme Court did not addre ss). Be cause the district court did not consider reha bilitation as a fac tor in choosin g prison as a sentenc ing option, or in de termining the leng th of Rey nold’s prison sentenc e, in the conte x t of the

rec ord, the sentenc ing court’s failure to addre ss specific ally the defe ndant’s reha bilitation does not rende r the sente nce substantively unrea sonable. Rey nolds also arg ues that the sentenc e cre ates unwar rante d disparities. I n suppo rt o f this arg ument, he cites sever al decisions in which simil arly situated defe ndants wer e g iven shorter prison
sentenc es. Howeve r, the case s that he cites are all distinguishable. The defe ndant in United States

v. W i l liams , 612 F.3d 417 (6th Cir. 2010), was found responsible for distributing more than 150 kilogr ams of coca ine and sentenc ed to 292 months in prison. Id

. at 420. Unlike Rey nolds, howeve r, Wil liams was found g uilty only of conspiring to distribute more than five kilogr ams of coca ine, and
not possession of a firea

rm during and in rela tion to a drug traff icking crime, money launder ing, or structuring

. Ibid. Simi larly , the defe ndant in United States v. Auston , 355 F. App’ x 919 (6th Cir. 2009), wa s co n v icted only of conspirac y to distribute more than 150 kilogr ams of coca ine and eng ag ing in interstate trave l in further ance of an illega l activity

. Id

. at 921. The defe ndant in United States v. Brown , 417 F. App’x 488 (6th Ci r. 2011), likewise was convicted only of conspirac y to distribute five kilogr ams or more of coca ine. Id

. at 489. Unlike Rey nolds, the defe ndant in United States v. Presley , 547 F.3d 625 (6th Cir. 2008) , was sentenc ed with a co-de fenda nt who was g iven

a much shorter sentenc e based on an ag ree ment to forf eit $1.2 milli on dollars and withdraw a motion for a new trial. Id. at 628. Fur ther, a s the g overnme nt points out, Re y nolds’s sentenc e was within

- 39 -No. 10-6394

United States v. Donald Re ynolds, Jr. the g uideline ra

ng e, and one purpose of g uideline sentenc es is to eliminate sentenc ing disparities. United States v. Kirchhof , 505 F.3d 409, 414 ( 6th Cir. 2007). Finally , Rey

nolds compar es his sentenc e to that meted out in United States v. Delgadillo , 318 F. App’x 38 0 (6 t h C i r. 2 0 09). I n that case , the court found that a sentenc e at the bottom of the g uideline rang e was substantively unre as o n ab l e. Id

. at 386. Rey nolds arg ues his sentenc e was l i k ew i s e longe r than nece ssary to serve the purposes of sentenc ing. Howeve r, our reve rsal of t h e sentenc e wa s based, a

t least in part, on our

finding that the sentenc ing c ourt had fa iled to consider the fac tors in §3553(a) and explain why , in light of the defe ndant’s limit ed crimi n al history and famil y re s p o nsibili ties, a sentenc e of the mandatory minimum was insufficient. Id

. at 387. I n contra st, here , the sentenc ing court rec ounted at leng th its rea sons fo r t h e s entence it imposed, including the g ravity

of Rey nolds’s crimes, the f

act that he arme d himself with multi ple wea pons,

was a leade r in the conspirac y , showed no remorse and continued to deny responsibility for his actions, the need for both g ener al and specific deter renc e, and the need for consistency in sentenc ing. Rey nolds has failed to rebut the presumption of rea sonablene ss of the sentenc e or demonstrate that th e s e ntencing judge “sele ct[ed] a sentenc e arbitra rily , base[d] the sentenc e on impermissible f a c to r s , fail[ed] to consider rele vant sentenc ing fac tors, or [gave ] an unrea sonable amount of weig ht to any pertinent fa ctor.” Conatser , 514 F.3d a t 520. J . Fa ilure to repla ce c ounsel at sentenc ing Rey nolds arg ues that in light of the brea kdown in communications with defe nse counsel, it

was reve rsible err or for the district court to proce ed to sentenc ing without providing a repla ceme nt

- 40 -No. 10-6394

United States v. Donald Re ynolds, Jr. attorney

. We revie w that claim for abuse of discretion. United States v. Sullivan , 431 F.3d 976, 979 (6th Cir. 2005). A criminal defe ndant is entitled to the eff ective assistance of counsel at sentenc ing. Goodwin

v. Johnson , 632 F.3d 301, 318 (6th Cir. 2011). “Onc e a defe ndant expresses his dissatisfaction with counsel, the district court is obliged to conduct an inquiry into the defe ndant’s complaint to deter mine whether

there is good c ause for substitut ion of counsel.” United States v. Vasquez , 560 F.3d 461, 4 6 6 (6 t h Cir. 2009). I n deter mining whether the district court abused its discretion in deny ing a motion to s ubstitut e counse l, the Court considers four fac tors: “(1) the timeliness of the motion, (2) the adequa cy of the court’s inquiry into the matter, (3) the extent of the conflict betwee n the attorney and client and whether it wa s so g rea t tha t it resulted in a total la ck of communication preve nting a

n adequa te def ense, a nd (4) the ba lancing of these f actor s with the public’s interest in the prompt and eff

icient administration of justice.” Ibid

. (quoting United States v. Mack , 248 F.3d 548, 556 (6th Cir. 2001)). Prior to sentenc ing, defe nse counsel filed a motion to withdraw. At the sentenc ing hear ing, Rey nolds made his dissatisfaction with counsel clea r, stating that defe nse counsel was incompetent, colluding with the g overnme nt, embezzli ng from his pare nts, and “in a conspirac y actua lly try ing to g et me tied into slavery .” Sentencing Hr’g Tr., Oct. 28, 2010 at 11. De s p ite Rey nolds’s obvious dissatisfaction with his lawy er, the distri ct co u rt d i d not, as require d, inquire whether g ood cause exis ted for the substitut ion of counsel. See Vasquez , 560 F.3d at 466. I nstead, the court interpre ted Rey nolds’s dissatisfaction as a r equest for a continuanc e and de nied the re quest.

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United States v. Donald Re ynolds, Jr. Howeve r, despite the district court’s proce dural err or, an examination of the fac tors outlined in Mack compels the concl u s i o n t h at the district court did not abuse its discretion in failing to appoint the d ef

en d an t new counsel on the day of sentenc ing. First, the defe ndant’s reque st and defe nse counsel’s motion to withdraw wer e both untimely

. The reque sts wer e prese nted on the day of sentenc ing; to g rant them would have require d the court to g rant a continuance

. I n such situations, the district court’s determinations are entitled to “extraordinar y defe renc e.” Vasquez , 560 F.3d at 467 (quoting United States v. W hitfield , 259 F. App’ x 830, 834 (6th Cir. 2008)). Second, althoug h the district court ultimately did not consider substitut ing cou n s el, the district court inquired at leng th into the conflict betwee n Rey nolds and his attorney s. The court made inquiry of both of the lawy ers as well as Rey nolds h i m s elf. Rey

nolds had ample “opportunity to explain the basis for his dissatisfaction with counsel and to establish g ood cause for the appointment of substitute counsel.” W hitfield , 259 F. App’ x at 834. Third, althoug h the re cord refle cts that the conf lict betwee n Rey

nolds and his lawy ers wa s signific ant, and that communication had broke n d o wn betwee n them, that alone is insufficient to establish that the district court abused its discretion. The proce dural history in the district court demonstrates that Rey

nolds had a history of tumultuous rela tionships with his attorney s. I n fac t, at the t ime of sente n ci n g, Rey nolds’s lawy ers were the fourth and fifth attorney s to repr esent him in this case , and they had attempted previously to withdraw befor e trial based on his lack of cooper ation with them. Testimon y fr o m b o t h o f t he attorney s and from a probation office r who acc ompanied defe nse counsel to interview Rey nolds for the pre- sentenc e repor t ref lects that Rey

nolds ref used to speak to his counsel and beca me bellige rent when they attempted to spe ak with him about the pre-

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United States v. Donald Re ynolds, Jr. sentenc e repor

t. A defe ndant’s ref

usal to cooper ate with counsel does not constitute g ood cause for substitut ing counsel. Vasquez , 560 F.3d at 468; Jones v. Tennessee , 805 F.2d 1034 (6th Cir. 1986) (Table ). Moreove r, althoug h communication had broken down betwee n Rey nolds and his attorney s, defe nse counsel never

theless was able to lodge objections to the pre- sentenc e repor t and prese nt two witnesses to testify on Rey n o l d s ’s behalf at sentenc ing. We conclude that the brea kdown in communication did not leave d ef en s e counsel unable to act in Rey nolds’s interest at sentenc ing. There fore , we are comforta ble in concluding that it was not an abuse of discre t i o n for the district court to fa il to order a substitution of counsel for the def endant. Four th and finally , the public had an interest in seeking the sentenc e pronounce d ag ainst the defe ndant in a timely manner . Rey nolds ha d been adjudg ed g uilty near ly eig ht months prior to the
sentenc ing hear i n g; t h e t ri al itself had been continued beca use of Rey

nolds’s chang e in counsel. Upon considera

tion of the Mack fac tors and the circ umstances of Rey nolds’s trial, we find no abuse of discretion in the district court’s decision to proce ed to sentenc ing without providing a substitut ion of counse l for the de fenda nt. I I I

. Unsurprising ly , Rey

nolds appea

rs not t o b e satisfied with the brea dth of his attorney ’s appellate brief, and he has filed sever al motions in this cour t ra i s i n g ad ditional issues. We will addre ss them now. A. Collateral a ttacks Rey nolds filed two motions that appea r to be collater al attacks on his sentenc e. One motion is entitled “Pro Se Petition for Release by Writ of Habe as Corpus Presenting Prohibiti on to - 43 -No. 10-6394

United States v. Donald Re ynolds, Jr. I mprisonment Under the Six th Amendment.” I n that motion, he arg ues that he was deprive d of his Six th Amendment rig ht to counsel of choice when the mag istrate judge g rante d Donald Bosc h’s motion to wit hdraw

. L ater , Rey

nolds filed a motion entitled “Appe llates Motion to Def ault Appea ls for Want of Assistance of Counsel Seeking Prohibiti on Under the P ro t ections Guar antee d by the Six th Amendment.” I n that motion, he arg ues the appellate brief submitt ed on his behalf fails to subje ct the district court judgme nt to meaning ful testing a nd that his appellate c ounsel is ineffe ctive. The defe ndant rea sons that beca use he is left without as s i stance of counsel on appea l, this court must

reve rse the district c ourt’s judg ment. I n g ener al, a defe ndant may not raise a claim for ineffe ctive assistance of counsel on direc t appea l. Sulli va n , 4 3 1 F. 3d at 986 (citing United States v. W illiams , 176 F.3d 301, 312 (6th Cir. 199 9 ))

. T h e pref

err ed route for raising such claims is in a post-conviction proce eding under 28 U.S.C. § 2255, so that the parties can develop an adeq u at e re co rd. Ibid

. (citing United States v. Barrow , 118 F.3d 482, 494 (6th Cir. 1997)). Although we have addre ssed ineffe ctive assistance of counsel claims on direc t appea l, we will do so only wher e the rec ord is develope d suff i ci en t l y t o addre ss the claim. Ibid

. Here, the rec ord might be develope d more fully , particula rly since the defe ndant went throug h a number of attorney s in sear ch o f s a ti s f a c ti o n , w h ic h appar ently eluded him. He likely will have more to say

on these points, and ther efor e we leave the issue for a nother da y . B. N otice of suppleme ntal points and authority The defe ndant also filed a document entitled “notice of supplemental points and authority ” in which he attempts to resu rr ec t h i s ch alleng e to the sear ch of his residenc e. Howeve r, the - 44 -No. 10-6394

United States v. Donald Re ynolds, Jr. document does not identify the sear ch war rant to which it ref

ers, the g rounds on which he challeng es the war rant are unclea

r, and it doe s not e labora te on what e vidence he believe s the court should or should not consider. Fur

ther, althoug h the district court denied sever al motions to suppress in this

case , Rey nolds doe s not take issue with a ny of those decisions specific ally

. He simply asser ts tha t the s ear ch of his residenc e was not supported by proba b l e ca u s e. Bu t those issues must be raised befor e trial. F ed. R. Crim. Pro. 12(b)(3)( C). We do not consider them prope rly prese nted her e. C. Motion t o discharg e Ke vin Schad as a ppellate c ounsel The defe ndant seeks to have the Court repla ce his appointed appellate counsel, Kevin Schad,

or in the alterna tive “re lease my employ ers funds to t h at t h ey ca n provide for a private attorney .” Mot. at 8. The defe ndant alleg es that afte r he prese nted Mr. Schad with evidenc e that his conviction

was a result of a conspiracy and numerous violations of t he defenda nt’s co n s t i t u t i onal rights, Mr. Schad stopped responding to the defe ndant’s phone calls and emails. The defe ndant disag ree s with Mr. Schad’s strateg ic decisions, including his unwillingness to file a supplemental brief discussing the conspira cy

alleg ed by

the def endant. Mr. Schad likewise has filed a motion seeking permission to withdraw as counsel of rec ord and asks that the court g rant the defe ndant leave to proce ed pro se . Mr. S ch ad s t at es that he was informed by

the U.S. Ma

rshal Service that there was an ong oing threa t inve stiga

tion involving the defe ndant that place s appellate counsel in a c onflict of intere st. We believe that appellate counsel h as done a commendable job of challeng ing the defen d an t ’s co n v ictions, and the full brea dth of t he is sues gene rate d by the proceeding below has

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United States v. Donald Re ynolds, Jr. been prese nted t o u s . Ap pellate counsel has admirably discharg ed his duties, and his motion to withdraw is GR

ANTED

. D. Other filings The defe ndant has submitt ed sever al other filings consisting of citations to more authorities and aff idavits. We view these as attempts to expand the rec ord or prolong the briefing , all without leave of court. To the extent that the filings may be char acte rized as motions, we deny them for lack of merit in the g rounds pre sented. I V. After a thoroug h revie w of the rec ord an d t h e issues raised, we are confide nt that no

re v ersible err or was committed by the lower court. There fore , the defe ndant’s convictions and
sentenc es ar e AF F IRMED.

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