United States Court of Appeals

For the Eighth Circuit

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No. 19-2487

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United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Cleophus Reed, Jr.

lllllllllllllllllllllDefendant - Appellant

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Appeal from United States District Court 

for the District of Minnesota

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 Submitted: June 19, 2020

Filed: August 25, 2020

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Before KELLY, ERICKSON, and STRAS, Circuit Judges. 

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KELLY, Circuit Judge.

Cleophus Reed, Jr., appeals after a jury convicted him on three counts of drug

and gun charges. He challenges the sufficiency of the evidence on all counts, the
racial composition of the jury venire, and the length of his sentence. Finding no basis

for reversal, we affirm the district court’s1 judgment.

I.

Sergeant Adam Lepinski of the Minneapolis Police Department began

investigating a suspected drug-trafficking organization in the spring of 2017. During

this investigation, law enforcement executed a search warrant at a house on Colfax

Avenue in Minneapolis. No one appeared to reside at the house, but officers found

evidence of drug trafficking: respirator masks, latex gloves, scales, packing material,

a blender used to grind and cut heroin with other substances, two hydraulic presses

for making bricks of heroin, and 300 grams of heroin inside a large travel mug. 

Officers also found 839 grams of heroin, 751 grams of crack cocaine, and a 9 mm

semi-automatic handgun in the trunk of a car parked in the driveway.

Law enforcement later obtained a warrant to search an apartment on Emerson

Avenue in Minneapolis, where they believed Reed lived. No one was home when

officers executed the search warrant, but they found evidence that Reed lived there,

including photographs of his wife, Vivian; men’s clothing; and mail, tax documents,

and casino rewards cards bearing his name. Officers also found a handwritten note

claiming responsibility for everything in the apartment:

I Cleophus Reed Jr.

[date of birth] am responsible for

all activities in [street number] emerson Ave N 19

To whomever it may

concern with all knowledge

Vivian M. Reed, has know [sic]

knowledge of anything.

1The Honorable Nancy E. Brasel, United States District Judge for the District

of Minnesota.

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Officers discovered evidence of drug trafficking at the Emerson apartment: the

same brand of respirator masks, hydraulic press, latex gloves, and travel mug as found

at the Colfax house. They also found two guns in an unlocked box on the bedroom

floor: a Ruger .40 caliber semi-automatic pistol with a scratched-off serial number

and a Taurus .22 caliber semi-automatic pistol with a distinctive tip-up barrel.

After searching the Emerson apartment, law enforcement obtained a warrant

to collect Reed’s DNA. Lepinski went to the apartment to execute this warrant on

July 25, 2017. He could hear someone inside, but no one answered the door. 

Lepinski testified that he believed Reed was inside the apartment based on text

messages later recovered from Reed’s phone. One message sent from Reed’s phone

on that date read: “Police just came by. Stay away from here.” Another message

sent to Reed’s wife read: “Police just left saying call him. Lepenski [sic].”

The next day, Lepinski stopped Reed while he was driving his van. Lepinski’s

microphone recorded the traffic stop, and the government played the recording at

trial. During the stop, Reed told Lepinski, “Let uh, the bird know . . . he’ll be

decapitated before the Super Bowl.” A subsequent search of Reed’s van uncovered

the same brand of latex gloves found at both the Colfax house and the Emerson

apartment. Additionally, text messages on Reed’s phone indicated he was involved

in drug trafficking. One sender wrote, “I need an oz of fast.” Reed replied, “On

Rez.”

In September 2017, the grand jury returned a six-count indictment charging

Reed, David Kline, Timothy Dulaney, and Manley Humphries with drug and firearms

offenses. Reed was charged in Count One with conspiracy to distribute heroin,

powder cocaine, and crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. 

He was charged in Count Two with possession with intent to distribute heroin and

crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A), and 18 U.S.C.

§ 2. And he was charged in Count Five with possessing firearms as a convicted felon,

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in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Special Agent Bryan Lervoog

transported Reed to court to make an initial appearance. Lervoog testified that during

the trip, Reed volunteered, without prompting, “The CRI is going to have a bad

time.”2

Reed was the only co-defendant to proceed to trial. During jury selection, he

objected to the racial composition of the jury venire as overwhelmingly white. Reed

argued the venire did not represent a fair cross-section of the community. The district

court provisionally overruled the objection after finding no evidence to establish that

the venire was unrepresentative of the community, or that any under-representation

was due to a systematic exclusion of any group from the jury pool.

At trial, the government alleged Reed conspired with his co-defendants and

others to distribute heroin and cocaine from the Colfax house. The government

contended that Dulaney rented the Colfax house and allowed Kline to use it as a stash

house. Reed’s alleged role in the conspiracy was to prepare heroin for distribution

by cutting it with other substances and pressing it into blocks. He also cooked

powder cocaine into crack cocaine and would occasionally sell the drugs. The

government alleged that while Reed prepared the drugs, he wore a respirator mask

and latex gloves to protect himself. A forensic analyst from the Minnesota Bureau

of Criminal Apprehension testified that one of the respirator masks from the Colfax

house tested positive for Reed’s DNA.

Several of Reed’s alleged co-conspirators testified for the government at trial. 

Jevone Gentle acknowledged that he sought “a break on his sentence” by testifying. 

He implicated Reed in the conspiracy, explaining that Reed would bring heroin and

cocaine to the Colfax house and would “cook” the drugs while using the hydraulic

2The government alleged that “CRI” is a common abbreviation for

“confidential reliable informant.”

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presses and respirator masks. Gentle saw Reed put drugs in the trunk of the car

parked in the driveway. He also saw Reed with guns on numerous occasions but was

unable to provide specific dates. 

Dulaney also testified. He had pleaded guilty to the drug-trafficking

conspiracy and acknowledged that he also was testifying in hopes of receiving a

reduced sentence. He explained that Reed’s role was to prepare the drugs and to

sometimes sell them. Dulaney said Reed had access to the drugs stored in the car

parked at the Colfax house. He also testified that Reed possessed firearms. Kenneth

Mack, a cooperating witness, told the jury that he too agreed to testify “[w]ith the

hope that [he] will get reduction in his sentence.” According to Mack, Reed worked

with Kline to produce and sell drugs.

Vivian Reed testified for the defense. She explained that Reed did not have

access to the Emerson apartment when the police searched it. She believed law

enforcement planted the guns in the apartment. On cross-examination, the

government elicited testimony from Vivian about a previous search warrant executed

at a home she shared with Reed in 2012, where the police recovered crack cocaine. 

The government argued this provided context for the handwritten note found at the

Emerson apartment: she had been drawn into Reed’s illegal activities before, so he

wrote the note to prevent the same from happening again.

Reed also testified. He denied being involved in the charged conspiracy and

challenged the government’s evidence against him. Reed explained that he worked

with Kline’s mother and, as part of his work, used a respirator mask while cleaning. 

He suggested this was how a respirator mask with his DNA turned up at the Colfax

house. He denied any knowledge of the guns found at the Emerson apartment.

After a three-day trial, the jury convicted Reed on all three counts. Reed then

moved for a new trial under Federal Rule of Criminal Procedure 33, based on the

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racial composition of the jury venire. The district court denied the motion. At

sentencing, the court calculated an offense level of 34 and a criminal history

category V, resulting in a Guidelines range of 235 to 293 months in prison. Reed

objected to how the Guidelines’ drug conversion tables treat crack cocaine

significantly more harshly than powder cocaine, and urged the district court to

disregard the Guidelines for this reason. The court acknowledged its authority to

disagree with the Guidelines for policy reasons but declined to do so. The court

imposed a 240-month sentence on Counts One and Two and a concurrent 120-month

sentence on Count Five. Reed timely appealed.

II.

Reed first challenges the sufficiency of the evidence against him on all three

counts. He argues the three cooperating witnesses only testified against him to

receive reduced sentences in their own criminal cases. He notes that Gentle was

unable to provide much detail about when Reed participated in the drug conspiracy

or possessed firearms. He also points out that Lepinski testified that he never saw

Reed with his co-defendants or at any of the properties Lepinski surveilled.

We review the sufficiency of the evidence de novo, evaluating the evidence in

the light most favorable to the verdict and drawing all reasonable inferences in its

favor. United States v. Parker, 871 F.3d 590, 600 (8th Cir. 2017). We will reverse

only if no reasonable jury could have found the defendant guilty beyond a reasonable

doubt. United States v. Ways, 832 F.3d 887, 894 (8th Cir. 2016).

A.

To prove Reed guilty of Count One, the government had to establish that: 

(1) two or more people reached an agreement to distribute heroin, powder cocaine,

or crack cocaine; (2) Reed voluntarily and intentionally joined that agreement; and

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(3) at the time Reed joined the agreement, he knew its essential purpose. See 21

U.S.C. §§ 841(a)(1), 846; United States v. Meeks, 639 F.3d 522, 527 (8th Cir. 2011). 

Proof of an express agreement is not necessary, and the government may rely on

circumstantial evidence to establish an agreement. Meeks, 639 F.3d at 527. To prove

Reed guilty of Count Two, the government had to establish that Reed knowingly

possessed a controlled substance and that he intended to distribute the drugs to

another person. See 21 U.S.C. § 841(a)(1); United States v. Morales, 813 F.3d 1058,

1065 (8th Cir. 2016).

The government presented sufficient evidence to support Reed’s convictions

on Counts One and Two. Multiple witnesses consistently identified Reed as a

member of the drug conspiracy operating out of the Colfax house. These witnesses

testified that Reed was a “cook” who would turn powder cocaine into crack cocaine

and mix, cut, and press heroin with hydraulic presses while wearing latex gloves and

respirator masks. Reed’s DNA was found on a respirator mask in the Colfax house. 

While Reed explained that his DNA was on the mask because he worked as a cleaner

for Kline’s mother, the jury was not obligated to credit this testimony over the

testimony of the other witnesses. See, e.g., United States v. King, 898 F.3d 797, 808

(8th Cir. 2018) (explaining that a jury may base its verdict on the testimony of

cooperating witnesses). In the kitchen of the Colfax house, a large travel mug held

300 grams of heroin. Law enforcement also found large quantities of heroin and

crack cocaine and a handgun in a car parked in the driveway. One of the

government’s witnesses testified that he saw Reed place drugs in the car’s trunk. 

Evidence showed that Reed also occasionally sold the drugs he prepared. Witnesses

attested to this fact, and text messages from Reed’s phone corroborated their

testimony.

Moreover, evidence at the Emerson apartment connected Reed to the drugtrafficking operation at the Colfax house. At the apartment, police found the same

type of hydraulic press, respirator mask, latex gloves, and travel mug found at the

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Colfax house. Police also discovered tax documents, casino cards, and mail bearing

Reed’s name, as well as men’s clothing and photographs of Reed’s wife. A

handwritten note, apparently from Reed, claimed responsibility for everything in the

apartment. Lepinski’s testimony supported the conclusion that Reed was at the

apartment when Lepinski tried to execute the DNA warrant. And a subsequent search

of Reed’s van uncovered the same brand of latex gloves found in both the Colfax

house and the Emerson apartment.

The government also introduced evidence that Reed had threatened cooperating

witnesses in the presence of law enforcement on two occasions. We have said that

a threat against a potential informant is evidence that may show knowledge of and

participation in a conspiracy. United States v. Nunn, 940 F.2d 1128, 1131 (8th Cir.

1991). And while Reed strongly denied his guilt at trial, the jury was not obligated

to believe him. See United States v. Never Misses A Shot, 781 F.3d 1017, 1026 (8th

Cir. 2015).

Finally, Reed argues that the cooperating witnesses were simply not credible

because they testified to reduce their own prison sentences. But the jury heard this

argument from Reed’s attorney during his closing remarks, and the district court

instructed the jury to consider the witnesses’ motivations when assessing their

testimony. The jury is “capable of evaluating the credibility of testimony given in

light of the agreements each witness received from the government.” United States

v. Tillman, 765 F.3d 831, 834 (8th Cir. 2014) (quoting United States v. Conway, 754

F.3d 580, 587 (8th Cir. 2014)). “The jury is the final arbiter of the witnesses’

credibility, and we will not disturb that assessment” on appeal. United States v.

Listman, 636 F.3d 425, 430 (8th Cir. 2011) (quoting United States v. Hayes, 391 F.3d

958, 961 (8th Cir. 2004)). The evidence was sufficient to support the jury’s verdicts

on Counts One and Two.

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B.

Reed also challenges his conviction for possessing firearms as a felon. See 18

U.S.C. § 922(g)(1). This conviction was based on the Ruger .40 caliber semiautomatic pistol and Taurus .22 caliber semi-automatic pistol found inside the

Emerson apartment. Reed stipulated at trial that he was a convicted felon during the

relevant time; on appeal, he argues only that the government failed to show that he

possessed these firearms.

We conclude the evidence was sufficient to support the jury’s verdict. As

discussed above, numerous pieces of evidence connected Reed to the Emerson

apartment where the guns were found. Gentle and Dulaney testified that they saw

Reed with the two guns in question. They identified the guns by their distinctive

features: the Ruger had a scratched-off serial number and the Taurus had a tip-up

barrel, which a firearms technician explained was made by only a couple of gun

manufacturers. Based on this evidence, a jury reasonably could find Reed possessed

the guns as the government alleged.

III.

Reed next argues that the district court erred by denying his motion for a new

trial. In his motion, Reed reasserted that the jury venire did not represent a fair racial

cross-section of the community. In response, the district court found that the District

of Minnesota “primarily relies on voter registration lists to select jurors randomly, and

supplements the list with driver’s license lists; state identification card holder lists;

and other similar lists to be used by order of the court, including, but not limited to,

tribal member lists.” The court also found that jurors called for trial in the District’s

Third Division (St. Paul courthouse) and those called for trial in the Fourth Division

(Minneapolis courthouse) “are drawn from the same pool.” The court ultimately

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decided that Reed failed to show that the representation of Black people on the venire

was unfair or unreasonable in relation to the number of Black people in the

community or that any under-representation was due to systematic exclusion.

Generally, we will reverse the district court’s ruling on a Rule 33 motion “only

if we find that ruling to be a clear and manifest abuse of discretion.” United States

v. Amaya, 731 F.3d 761, 764 (8th Cir. 2013) (quoting United States v. Malloy, 614

F.3d 852, 862 (8th Cir. 2010)). But where, as here, a defendant claims that jury

selection violated his Sixth Amendment right to a fair cross-section of the

community, we review the district court’s decision de novo. United States v.

Sanchez, 156 F.3d 875, 879 (8th Cir. 1998); see also United States v. Rodriguez, 581

F.3d 775, 789 (8th Cir. 2009) (“Allegations of racial discrimination in jury pools

involve mixed questions of law and fact, and receive de novo review.”).

The Sixth Amendment entitles a defendant to an “impartial jury drawn from a

fair cross-section of the community.” Taylor v. Louisiana, 419 U.S. 522, 536 (1975). 

To establish a prima facie Sixth Amendment violation based on the composition of

the jury venire, a defendant must show:

(1) that the group alleged to be excluded is a “distinctive” group in the

community; (2) that the representation of this group in venires from

which juries are selected is not fair and reasonable in relation to the

number of such persons in the community; and (3) that this

under-representation is due to systematic exclusion of the group in the

jury-selection process.

Duren v. Missouri, 439 U.S. 357, 364 (1979).

There is no dispute that Black people are a “distinctive” group for purposes of

the Duren test. United States v. Womack, 985 F.2d 395, 397 (8th Cir. 1993). To

satisfy the second part of the Duren test, Reed must first “demonstrate the percentage

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of the community made up of the group alleged to be underrepresented.” Duren, 439

U.S. at 364. This number is “the conceptual benchmark for the Sixth Amendment

fair-cross-section requirement.” Id. Then, Reed must show that the representation

of this group in the pool of potential jurors is not fair or reasonable in relation to the

percentage of this group in the community. Id. A “gross discrepancy” between the

percentage of members from the distinctive group in jury venires and the percentage

of the distinctive group in the community will satisfy the second part of the Duren

test. Id. at 366.

Reed’s claim fails to establish the second part of the Duren test. He did not

provide evidence of the racial composition of the jury pool used by the District of

Minnesota, or even the composition of the potential jurors called for his trial. Instead,

he simply provided the percentage of Minnesota residents as a whole who are Black

(6.5%) and argued “there is a perception of racial disparity in voting in Minnesota.” 

At oral argument, the government suggested that Reed could have obtained

information about the racial composition of the District’s jury pool through a Rule 17

subpoena, see Fed. R. Crim. P. 17, but he did not do so. In short, Reed did not

present the district court with the relevant statistics to support his motion, and thus

failed to show that Black people are under-represented in the District’s pool of

potential jurors.3

3Reed’s argument also overlooks the fact that the District does not draw its list

of potential jurors solely from the state’s voter rolls. Rather, the District supplements

its list with “driver’s license lists; state identification card holder lists; and other

similar lists to be used by order of the court, including, but not limited to, tribal

member lists.” Therefore, even accepting Reed’s claim that there is a racial disparity

in the state’s list of voters, he has not demonstrated any racial disparity in the

District’s list of potential jurors. See Duren, 439 U.S. at 364; Sanchez, 156 F.3d at

879.

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IV.

Reed also challenges the length of his sentence. We review Reed’s challenge

by first ensuring “that the district court committed no significant procedural error.” 

See United States v. Clayton, 828 F.3d 654, 657 (8th Cir. 2016) (quoting Gall v.

United States, 552 U.S. 38, 51 (2007)). We then “consider the substantive

reasonableness of the sentence imposed under an abuse-of-discretion standard.” Id.

(quoting Gall, 522 U.S. at 51). “A district court abuses its discretion when it fails to

consider a relevant factor, gives significant weight to an irrelevant or improper factor,

or considers only appropriate factors but nevertheless commits a clear error of

judgment by arriving at a sentence that lies outside the limited range of choice

dictated by the facts of the case.” Id. (quoting United States v. San-Miguel, 634 F.3d

471, 475 (8th Cir. 2011)).

Reed argues the district court improperly relied on the Guidelines’ drug

conversion tables to calculate his offense level. See U.S. Sent’g Guidelines Manual

§ 2D1.1, cmt. n.8 (U.S. Sent’g Comm’n 2018). Reed asserts that the tables establish

an unreasonably high conversion rate for crack cocaine. They equate one gram of

crack cocaine to 3,571 grams of converted drug weight. Id. By contrast, the tables

equate one gram of powder cocaine to just 200 grams of converted drug weight. Id. 

Reed suggests this discrepancy affects Black defendants “at a higher rate.”4

Sentencing courts are “entitled to reject and vary categorically from the crack

cocaine Guidelines based on a policy disagreement with those Guidelines.” Spears

v. United States, 555 U.S. 261, 265–66 (2009). But “while a district court may

choose to deviate from the guidelines because of a policy disagreement, it is not

4Reed did not offer evidence to the district court to support this claim, and he

does not challenge the Guidelines’ drug conversion tables under the Equal Protection

Clause of the Fourteenth Amendment.

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required to do so.” United States v. Heim, 941 F.3d 338, 340 (8th Cir. 2019) (cleaned

up). “In recent years, numerous defendants have argued on appeal that a district court

erred when it refused to vary from a guidelines provision for policy reasons,” and we

have rejected those challenges. Id. 

Reed argued at sentencing that the district court should disregard the

Guidelines’ drug conversion tables because of their unreasonably harsh treatment of

crack cocaine. The court expressly recognized its authority to vary based on a

disagreement with the crack cocaine conversion rate but declined to do so. The

district court did not err. See United States v. Anderson, 618 F.3d 873, 884 (8th Cir.

2010) (“The district court . . . was aware of its discretion to consider a variance based

on the crack/powder disparity and did not abuse its discretion in deciding not to

exercise such discretion to grant Anderson’s requested variance.”).

To the extent Reed argues his sentence is otherwise substantively unreasonable,

we disagree. His 240-month sentence is within the Guidelines range of 235 to 293

months, and he has not shown that the district court improperly weighed the

sentencing factors. See Clayton, 828 F.3d at 657–58. The court considered Reed’s

criminal history and the “very significant” offenses for which he was found guilty at

trial. It also considered the disparity between his sentence and those of his

co-defendants. These are appropriate factors to consider when making a sentencing

decision, and the record does not show that the court overlooked any relevant factor. 

See United States v. Hall, 825 F.3d 373, 375 (8th Cir. 2016).5

5Reed mentions a few additional concerns in his opening brief, but he does not

meaningfully develop or argue them. Because he provides no basis in law or fact for

his cursory assertions of error, we cannot consider the merits of these claims. See

United States v. Mshihiri, 816 F.3d 997, 1009 n.5 (8th Cir. 2016); see also United

States v. Welch, 811 F.3d 275, 278 n.2 (8th Cir. 2016) (“At no point does [Welch]

cite authority, cite to the record, or provide reasoning in support of this argument.”);

United States v. Warren, 788 F.3d 805, 814–15 (8th Cir. 2015) (“Since Warren has

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We affirm the district court’s judgment.

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failed to go beyond a cursory assertion of this argument in his opening brief and made

no mention of it in his reply brief or at oral argument, we refuse to consider the merits

of the issue.”). 

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