        RECOMMENDED FOR FULL-TEXT PUBLICATION
             Pursuant to Sixth Circuit Rule 206            2     United States v. Reid                        No. 02-5794
    ELECTRONIC CITATION: 2004 FED App. 0040P (6th Cir.)
                File Name: 04a0040p.06                     UNITED STATES ATTORNEY, Greeneville, Tennessee, for
                                                           Appellee.
UNITED STATES COURT OF APPEALS                                                  _________________
               FOR THE SIXTH CIRCUIT                                                OPINION
                 _________________                                              _________________

 UNITED STATES OF AMERICA , X                                 KRUPANSKY, Circuit Judge. The defendant-appellant,
                                                           Michael S. Reid (“Reid”), has contested his sentence imposed
             Plaintiff-Appellee, -                         pursuant to his guilty-plea convictions for possessing a
                                   -
                                   -   No. 02-5794         firearm following a felony conviction and fraudulent misuse
            v.                     -                       in interstate commerce of another person’s identity. Reid has
                                    >                      asserted that the sentencing court abused its discretion (1) by
                                   ,                       vacating an order denying a sentencing enhancement and
 MICHAEL SHANE REID ,              -
          Defendant-Appellant. -                           permitting the government, allegedly out of time, to introduce
                                                           testimony which resulted in the application of the sentencing
                                  N                        enhancement; and (2) by finding, for sentencing purposes by
       Appeal from the United States District Court        a preponderance of the evidence, that the defendant had used
   for the Eastern District of Tennessee at Greeneville.   his illegally-possessed pistol to commit criminal acts which
     No. 01-00065—Thomas G. Hull, District Judge.          were tantamount to the state-law felony offense of aggravated
                                                           assault, irrespective of the state court’s dismissal of the felony
               Argued: November 13, 2003                   charge for those acts.

          Decided and Filed: February 6, 2004                 Sometime prior to November 15, 2000, Reid stole a
                                                           driver’s license and a social security card which belonged to
 Before: KRUPANSKY, MOORE, and ROGERS, Circuit             a co-worker, Richard Anthony Rescha (“Rescha”) of Antioch,
                    Judges.                                Tennessee. Reid used those documents to successfully pose
                                                           as Rescha, thereby allowing him to exploit Rescha’s
                   _________________                       presumably comparatively favorable credit standing and
                                                           overall record. Between November 15, 2000, and March 1,
                       COUNSEL                             2001, by attaining credit financing, and in at least one
                                                           instance by negotiating a worthless check, Reid purchased, in
ARGUED: Stephen M. Kissinger, FEDERAL DEFENDER             Rescha’s name, a diamond engagement ring and a timepiece
SERVICES, Knoxville, Tennessee, for Appellant. Guy W.      collectively worth $2,144.00; a 1998 Chevrolet Silverado
Blackwell, ASSISTANT UNITED STATES ATTORNEY,               truck valued at $20,591.55; a 1999 GMC Sierra pickup truck
Greeneville, Tennessee, for Appellee. ON BRIEF: Nikki C.   priced at $20,998.65; a Kodiac Quad Runner truck which was
Pierce, FEDERAL DEFENDER SERVICES, Greeneville,            sold for $5,871.47; a .22 caliber rifle; and a .22 caliber
Tennessee, for Appellant. Guy W. Blackwell, ASSISTANT      Heritage pistol (the two firearms cumulatively cost

                             1
No. 02-5794                           United States v. Reid        3    4       United States v. Reid                             No. 02-5794

approximately $200.00). During February 2001, local                        On November 26, 2001, Reid pleaded guilty to one count
authorities in Morristown, Tennessee, notified the United               of illegally possessing a firearm following a felony
States Secret Service office in Knoxville that Reid had falsely         conviction,2 in offense to 18 U.S.C. §§ 922(g)(1) and
assumed Rescha’s identity to purchase the above-described               924(a)(2); and to one charge of theft of another’s identifying
jewelry as well as the Silverado and Sierra trucks.                     documents with intent to obtain items of value exceeding
                                                                        $1,000, in violation of 18 U.S.C. §§ 1028(a)(7) and (b)(1)(D).
   Shortly thereafter, Reid’s crime spree was foiled by his             A charge of uttering a false written statement to a pawn shop
domestic misbehavior. During the early morning of March 1,              in connection with a firearm purchase, 18 U.S.C. §§ 922(a)(6)
2001, Reid’s cohabitating fiancée, Merica L. Skelton                    and 924(a), was dismissed.
(“Skelton”), reported to the local police that, on the previous
day (February 28, 2001), Reid, during a fit of rage, had                   Subsequently, the defendant objected to a part of the
choked her and pressed a loaded and hammer-cocked .22                   probation office’s January 17, 2002 presentence investigation
caliber handgun against her forehead, accompanied by his                report (“PSR”), by which it had recommended a four-level
verbal threat to “blow her f___ing brains out.” That weapon             enhancement under U.S.S.G. § 2K2.1(b)(5)3 for using one of
was later identified as the .22 caliber Heritage pistol which           the two subject illegally-possessed firearms “in connection
Reid, while impersonating Rescha, had unlawfully purchased              with another felony offense,” to wit, the February 28, 2001
at a pawn shop on December 20, 2000.                                    state-law felonious aggravated assault against Skelton. Reid
                                                                        objected to that advisory, protesting that, because the state
  Later that same day (March 1, 2001), police officers                  court had dismissed the felony assault charge against him as
stopped Reid for traffic violations while he was driving the            part of a plea bargain agreement whereby he pleaded guilty to
1998 Silverado truck. Those constables arrested him for                 misdemeanor assault for the February 28, 2001 offense, any
driving without a valid operator’s permit, and on an                    offense-level increase in his instant prosecution for that
outstanding Tennessee arrest warrant for the February 28,               conduct would be improper.
2001 armed aggravated assault. The arresting patrolmen
seized the two firearms from inside the Silverado, plus
Rescha’s driver’s license and social security identification
from Reid’s clothing. Later that day, Secret Service agents                 2
                                                                              The record disclosed that, prior to his subject federal prosecution,
interviewed the defendant at the Sevier County Jail. Reid               Reid has sustained several felony convictions in state courts on charges
confessed that he had stolen Rescha’s motor vehicle                     ranging from driving while intoxicated, carrying a weapon inside a
operator’s license and social security card, and had used them          licensed liquo r establishment, and assault.
to facilitate his purchases, in Rescha’s name, of the jewelry,              3
the three trucks,1 and the two firearms.                                      Guidelines section 2K2.1 controls offense level computations for
                                                                        certain federal firearm s offenses, including basic unlawful possession.
                                                                        That pro vision re cites, in ma terial part:

                                                                            If the defendant used or possessed any [illegally possessed]
                                                                            firearm or am munitio n in connection with another felony offense
    1
                                                                            . . . increase [the offen se total] b y 4 levels.
     Prior to the March 1, 2001 interrogation, the Secret Service had
been unaware of Reid’s fraudulent abuse of R escha’s identity in        U.S.S.G. § 2K2.1(b)(5) (2001). (Bracketed m aterial ad ded ; bold face in
connection with his purchase of the Quad Runner vehicle.                original).
No. 02-5794                        United States v. Reid     5    6       United States v. Reid                         No. 02-5794

  On March 18, 2002, the district judge presided over a           hearing, and therefore it should not be permitted a second
hearing on the defendant’s objections to the PSR. At that         chance to prove its “felonious use” claims after the trial court
time, the government responded that its proposed U.S.S.G.         had ruled against it. However, the district court granted the
§ 2K2.1(b)(5) “felonious use” enhancement was justified           government’s motion, and set an evidentiary sentencing
because sentencing facts, including the facts which would         hearing for June 3, 2002. On that day, over Reid’s continuing
satisfy the statutory elements of a predicate felony offense      objection to the court’s re-opening of the proof relevant to his
necessary to trigger the subject guideline provision, need be     alleged “felonious use” of one of his illegally-possessed
proved by the prosecution merely by a preponderance of the        firearms, the trial court ruled that it would allow both
evidence; therefore, the absence of a “beyond-a-reasonable-       adversaries to “put on anything” relevant to that contested
doubt” conviction of that dismissed state-law felony assault      sentencing question. The court accepted testimony from three
charge was immaterial. However, the sole evidence                 prosecution witnesses, to wit, the victim Skelton plus two
supporting the alleged felonious assault which the AUSA           case investigators, namely ATF Agent Greg Moore
presented at the March 18, 2002 proceeding was an affidavit       (“Moore”) and Secret Service Agent Ted Kirkman
executed by Skelton; the prosecution’s efforts to subpoena        (“Kirkman”).4 The defense offered testimony by Reid.
Skelton for the March 18, 2002 hearing had been
unsuccessful. Accordingly, the presiding judge continued the         At the evidentiary hearing, Skelton testified inter alia that,
hearing until March 25, 2002, to permit the parties sufficient    on February 28, 2001, around 2:00 p.m., while at home, Reid
time to marshal their evidence, including live witnesses,         became angry with her because she refused to drive him to a
pertinent to the disputed felonious assault.                      liquor store. His fury climaxed in a violent rampage which
                                                                  lasted for many hours. The victim revealed that, at one point,
  Nevertheless, prior to that rescheduled hearing, on             Reid inserted the barrel of his .22 caliber handgun into his
March 21, 2002, the trial judge entered an order sustaining       own mouth, and then pressed it against her head while
Reid’s objection to the contested “felonious use”                 threatening to kill her. Reid also destroyed their coffee table,
enhancement, declaring that the United States had failed to       and threatened the physical safety of Skelton’s young
prove sufficient supportive facts by a preponderance of the       daughter. After the lapse of approximately twelve hours after
evidence.     Subsequently, the prosecution moved for             the beginning of their argument, Skelton and her daughter
reconsideration of that March 21, 2002 order, asserting that it   escaped the house. Skelton telephoned the police, and then
was prepared to offer probative testimony from Skelton. The       went to the station, where she completed an arrest warrant
government explained that, prior to the March 18, 2002            affidavit by verbally answering questions posed by a state
hearing, it had prepared only to argue the legal effect of        judicial magistrate; her responses were transcribed into a
Reid’s state court misdemeanor assault conviction on the          document which Skelton ultimately signed. Contrary to a
government-requested “felonious use” sentencing                   statement contained in that affidavit, Skelton explained on the
enhancement, but not the factual proof of the underlying          witness stand that she had not told the magistrate that Reid
armed assault, because it had not construed Reid’s objection
to encompass any opposition to the PSR’s recitation of the
material facts.                                                       4
                                                                        Because neither Agents Moore nor Kirkman could offer eyewitness
  Reid replied that the court had given the government a fair     testimony about Reid’s conduct on February 28, 2001, their testimony
                                                                  was not critical to the trial court’s resolution of the sentencing
opportunity to proffer its evidence at the March 18, 2002         enhancem ent controversy.
No. 02-5794                        United States v. Reid     7    8        United States v. Reid                       No. 02-5794

had forced the gun into her mouth, but instead she had told           The Court also finds that an aggravated assault using the
that official that Reid had placed it into his own mouth.             .22 caliber handgun was in fact committed by the
Skelton also identified the .22 caliber Heritage pistol               defendant on Ms. Skelton on February 28, 2001. The
implicated in the instant prosecution as the firearm deployed         Court takes judicial notice that in Tennessee an
by Reid while threatening her life on February 28, 2001.              aggravated assault is a felony punishable by more than
                                                                      one year.
  On cross-examination, the defense attorney endeavored to
assail the victim’s credibility by illuminating evident                  The Court finds that the government has [met] its
discrepancies in certain details reported in her affidavit as         burden of proving that this enhancement applies to the
compared to her witness-stand attestations; and by eliciting          instant situation. Therefore, the government’s motion for
admissions from her of voluntary post-assault contacts which          reconsideration of the application of a 4-point
she had with Reid, as well as her petty criminal record.              enhancement under U.S.S.G. § 2K2.1(b)(5) for use of a
                                                                      firearm in connection with another felony offense is
   Subsequently, Reid took the witness stand. He testified,           GRANTED for the reasons set out herein.
among other things, that he had merely “verbally assaulted”
his fiancée on February 28, 2001, and accordingly pleaded           The four-degree enhancement produced a total offense level
guilty in state court to misdemeanor assault for that incident.   of 17, which, when matched with Reid’s criminal history
The defendant claimed that Skelton had admitted to the            category of VI, yielded a guidelines sentencing range of 51 to
Tennessee prosecutor that Reid did not use a handgun to           63 months in federal prison.5 U.S.S.G. § 5A (Sentencing
assault her, which confession, according to Reid, prompted        Table). On June 10, 2002, the district court imposed
the state to reduce the charge against him to misdemeanor         concurrent terms of fifty-five months for each of Reid’s two
simple assault. Reid denied that he displayed, or even            counts of conviction, to be followed by three years of
actively possessed, any weapon during the February 28, 2001       supervised release, plus restitution totaling $7,025.00 and a
altercation; and he further denied that he had verbally           $200.00 assessment. A timely appeal followed.
threatened serious violence against Skelton or her child. The
defendant conceded that he has an alcohol problem, and that         The defendant’s initial assignment of error is that the lower
he had been drinking prior to the February 28, 2001               court abused its discretion by re-opening the record after it
confrontation; but he denied that liquor had played a role in     had previously entered its March 21, 2002 order denying the
his conduct on the day in question. Rather, Reid claimed that     prosecution’s request for the controverted four-level
a dispute over finances had triggered the confrontation with      “felonious use” sentencing enhancement by reason of the
his cohabitating fiance.                                          government’s failure of proof, especially given that the
                                                                  government had been afforded a fair opportunity to offer its
  After the evidentiary hearing, the trial court journalized a    evidence at the March 18, 2002 hearing which had preceded
June 6, 2002 written order which assessed the testimony of        the court’s March 21, 2002 order.
the various witnesses, and resolved:
    Based on their testimony as a whole, and their
                                                                       5
  demeanor in open court, the Court finds that Merica                  Absent the contested four-point offense level increase, R eid’s
  Skelton is a more credible witness than the defendant.          sentencing range would have been 33 to 41 months in prison. U.S.S.G.
                                                                  § 5A (2001) (Sentencing Table).
No. 02-5794                        United States v. Reid     9    10       United States v. Reid                               No. 02-5794

  A trial court’s decisions to vacate its prior order, and to     other status change, by the trial court, in the exercise of its
reopen the evidentiary record, are examined for abuse of          sound discretion, at any time prior to the entry of final
discretion. See United States v. Wilson, 27 F.3d 1126, 1129       judgment.6 See Wilson, 27 F.3d at 1129; United States v.
(6th Cir. 1999). An abuse of discretion occurs “when the          Kolenda, 697 F.2d 149, 150 (6th Cir. 1983) (per curiam).
reviewing court is firmly convinced that a mistake has been
made. A district court abuses its discretion when it relies on      In both civil and criminal cases, a trial court is empowered
clearly erroneous findings of fact, or when it improperly         to revisit any of its previous non-final rulings in the light of
applies the law or uses [an] erroneous legal standard."           a perceived error or misjudgment, new relevant information,
Romstadt v. Allstate Ins. Co., 59 F.3d 608, 615 (6th Cir.         or even its simple conclusion that it may have acted in ill-
1995). (Quotation marks and citations omitted). Reid,             considered haste. See, e.g., Christianson v. Colt Operating
without supporting citation to controlling or even persuasive     Corp., 486 U.S. 800, 816 (1988); Arizona v. California, 460
authority, has endeavored to analogize the district court’s re-   U.S. 605, 618 (1983). In the case sub judice, the United
opening of the evidentiary record, vacating of its prior order,   States had offered two compelling reasons why it had not
and granting of the government’s previously-denied motion         been prepared to offer factual proof via live witnesses at the
to significantly enhance the defendant’s offense level, to a      March 18, 2002 hearing – (1) the key witness Skelton was
hypothetical re-opening of a criminal prosecution following       unavailable, and (2) the prosecutor had reasonably construed
the defendant’s acquittal, whereby the defendant is compelled     Reid’s objection to the PSR as a legal contention that the
to face re-trial on previously failed charges which, on the       “felonious use” enhancement was improper absent an actual
government’s second attempt, are supported by novel               felony conviction, but not as a denial of the underlying facts.
evidence, in violation of the protections of the Fifth            See United States v. Stafford, 258 F.3d 465, 475-76 (6th Cir.
Amendment’s Double Jeopardy Clause.                               2001) (recognizing that a defendant’s non-objection to factual
                                                                  assertions contained in the PSR constitutes an admission of
  That analogy was facially misconceived. No final                the accuracy of those facts), cert. denied, 535 U.S. 1006
judgment which might have even arguably been insulated            (2002). Furthermore, at the June 3, 2002 evidentiary hearing,
from tampering by double jeopardy principles had been             Reid was given a full and fair opportunity to cross-examine
entered in the defendant’s favor prior to the trial court’s
election to permit both adversaries to offer additional
evidence relevant to the disputed sentencing issue and its
setting aside of the March 21, 2002 order. See, e.g.,
Palazzalo v. Gorcyca, 244 F.3d 512, 516 (6th Cir. 2001)
(“The Double Jeopardy Clause protects against a second
prosecution for the same offense after conviction or acquittal,        6
and against multiple punishments for the same offense.”)                On appeal, the United States has argued that this court lacks
                                                                  jurisdiction over the defendant’s challenge to the district court’s vacation
(emphasis added) (citing Ohio v. Johnson, 467 U.S. 493, 498       of the March 21, 2002 order because that order was a non-appealable, and
(1984); North Carolina v. Pearce, 395 U.S. 711, 717 (1969)).      now defunct, interim mandate. However, the defendant has challenged
Rather, the ultimately-vacated March 21, 2002 order was           his final judgment of sentence b y com plaining that it was wrongfully
merely an interim decree subject to revision, reconsideration,    determined in light of his purported ve sted right to the trial co urt’s prior
rescission, correction, amendment, adjustment, vacation,          favorable adjudication of the “felonious use” issue. Acc ordingly, this
                                                                  reviewing court has subject matter jurisdictio n over the instant
substitution, supersedure, modification, annulment, or any        controversy. See 18 U .S.C. § 374 2(a); 28 U .S.C. § 129 1.
No. 02-5794                               United States v. Reid             11   12       United States v. Reid                              No. 02-5794

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

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