NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0449n.06
No. 07-6500 FILED
Jul 22, 2010
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE EASTERN
) DISTRICT OF TENNESSEE
DONALD GILMORE, JR., )
)
Defendant-Appellant. )
)
BEFORE: CLAY, ROGERS, and COOK, Circuit Judges.
ROGERS, Circuit Judge. In this sentencing appeal, Defendant Donald Gilmore, Jr. alleges
that the district court improperly based his sentence on the drug quantity in the presentence report
and that his counsel was ineffective for withdrawing Gilmore’s objection to the PSR’s drug quantity.
Gilmore has also moved to supplement the record to include conflicting accounts of his drug quantity
admissions. Because the record already contains the documents Gilmore seeks to add, we deny
Gilmore’s motion to supplement the record. Because Gilmore withdrew his objection to PSR’s drug
quantity, quantity was not disputed and the district court was not required to make factual findings
on drug quantity; therefore, we affirm his sentence. Because the record is not sufficiently developed,
we decline to rule on Gilmore’s ineffective assistance claim.
During an August 30, 2006 traffic stop of Gilmore and his wife, a consensual search of the
couple’s vehicle revealed 3 pounds of cocaine. The stopping officer’s notes indicate that Gilmore
admitted buying three to five kilograms of cocaine for the past five years. A forfeiture warrant filed
No. 07-6500
United States v. Gilmore
the next day by another officer indicates that, contrary to the stopping officer’s notes, Gilmore
admitted buying “between one and five kilos of cocaine per week for the last year.” After Gilmore
was stopped again on March 21, 2007, while attempting to transport approximately three kilograms
of cocaine across state lines, a federal grand jury indicted Gilmore, his wife, and another co-
defendant for conspiracy to distribute and possess with intent to distribute five kilograms or more
of cocaine hydrochloride from 2001 to March 2007, and possession of 500 grams or more of cocaine
on August 30, 2006. Both Gilmore and his wife pled guilty to the conspiracy charge, a charge
carrying a statutory mandatory penalty of 10 years to life in prison if the defendant has no prior drug
felony convictions. At the plea hearing, the Government confirmed that Gilmore and his wife had
pled to “the same matter with the factual basis . . . being somewhat different,” and Gilmore was
advised of the statutory penalties for the crime.
In Gilmore’s plea agreement, the Government agreed not to oppose a two-level reduction in
Gilmore’s Sentencing Guidelines offense level for acceptance of responsibility, and agreed that the
Government might, in its discretion, move for an additional one-level decrease for acceptance of
responsibility if Gilmore’s base offense level was 16 or greater. The Government reserved the right
to withdraw or to decline to make this motion if Gilmore “engage[d] in any conduct . . . inconsistent
with accepting responsibility.” The plea agreement set forth facts to support Gilmore’s guilty plea
but noted that these facts were not necessarily all the facts in the case, other facts might be relevant
to sentencing, and both the Government and Gilmore could present additional facts at sentencing.
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United States v. Gilmore
The PSR held Gilmore responsible for 52 kilos of cocaine based on the admission attributed
to him in the forfeiture warrant, that he bought between one and five kilos of cocaine per week for
the last year. Based on that drug quantity, Gilmore’s base offense level was 36. After subtracting
3 levels for acceptance of responsibility, Gilmore’s total offense level was 33, and with his criminal
history at category III, Gilmore’s Guideline range was 168 to 210 months’ imprisonment.
Gilmore objected to the PSR’s drug quantity and argued in his sentencing memorandum that
the record contained other statements by Gilmore admitting to lesser drug quantities. At sentencing,
the Government indicated that its witnesses would testify that Gilmore should be held responsible
for a drug quantity “far in excess of” 52 kilos; that this quantity would increase his total offense
level; and that if he persisted in his objection, the Government would decline to move for an offense
level reduction for acceptance of responsibility. The district court cautioned Gilmore that drug
quantity was the main determinant in drug crime sentencing, that “[o]nce the government starts
putting on evidence [of drug quantity], it becomes an evidentiary hearing,” and that “more often than
not the only witness that’s available [to counter the Government’s evidence of drug quantity] is the
defendant.” The district court continued, stating that if the defendant’s testimony contradicted the
Government’s evidence and the district court credited the Government’s evidence rather than the
defendant’s testimony, then the defendant could face a higher Sentencing Guidelines range due to
loss of an offense level reduction for acceptance of responsibility and an enhancement for
obstruction of justice. The warnings, while doubtless accurate and intended for the defendant’s
benefit, were on the forceful side, and we do not endorse them as ideal. The district court noted,
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No. 07-6500
United States v. Gilmore
however, that it did not know what evidence the Government would present or whether that evidence
would be credible.
The district court then recessed to permit Gilmore to confer with counsel. After sentencing
resumed, Gilmore’s counsel withdrew the objection to the PSR’s drug quantity. The district court
found that the facts and Guidelines calculations in Gilmore’s PSR were correct. Gilmore himself
continued to disagree with the PSR’s drug quantity, and the district court advised Gilmore that, if
he believed he was innocent, he should not plead guilty. Gilmore responded that he did “accept
responsibility for what [he] pled to, but [he] did not plead to that amount.” The district court
sentenced Gilmore to 189 months’ imprisonment, a within-Guidelines sentence for the 52-kilo drug
quantity.
Gilmore filed this timely appeal, and moved in the district court to supplement the record
with the conflicting accounts of Gilmore’s drug quantity admissions from the stop on August 30,
2006. The district court denied the motion and stated that Federal Rule of Appellate Procedure 10(e)
did not permit supplementing the record because “the record accurately reflects what occurred before
the [district court].” Gilmore then moved to supplement the record in this court.
We deny Gilmore’s motion to supplement the record because the relevant documents are part
of the district court’s sealed record. Rule 10(e) permits correction or modification if “any difference
arises about whether the record truly discloses what occurred in the district court” or “anything
material to either party is omitted from or misstated in the record.” Because the documents Gilmore
seeks to add are already in the district court’s sealed record, neither circumstance applies here.
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No. 07-6500
United States v. Gilmore
We also affirm Gilmore’s sentence. The district court properly based Gilmore’s sentence on
the PSR’s drug quantity because Gilmore withdrew his objection to that quantity, rendering quantity
undisputed and permitting the PSR to serve as the factual basis for the sentence. A sentencing court
“may accept any undisputed portion of the presentence report as a finding of fact.” Fed. R. Crim P.
32(i)(3)(A). “[A] defendant’s statement of no objections to a presentence report constitutes an
express admission of the amount and type of drugs attributed to [the defendant] in the PSR.” United
States v. Stafford, 258 F.3d 465, 476 (6th Cir. 2001) (internal quotation marks omitted) (insertion
in original) (citation omitted); see also United States v. Adkins, 429 F.3d 631, 632-33 (6th Cir.
2005); United States v. Clements, 142 F. App’x 223, 228-29 (6th Cir. 2005). A defendant’s
withdrawal of an objection to the PSR’s drug quantity is also an express admission of that drug
quantity. United States v. Roper, 266 F.3d 526, 532 (6th Cir. 2001).
Therefore, when Gilmore withdrew his objection, the district court could properly accept the
PSR’s drug quantity as a finding of fact because that portion of the PSR was undisputed. Gilmore’s
statement that he did not plead to the 52 kilogram quantity does not change his attorney’s withdrawal
of that objection. See United States v. Tarpley, 295 F. App’x 11, 15-16 (6th Cir. 2008). Because
the PSR’s drug quantity was undisputed, the district court properly declined to hold an evidentiary
hearing and find facts, and the PSR quantity was a sufficient factual basis to support the sentence.
This result is consistent with United States v. Baro, 15 F.3d 563 (6th Cir. 1994). In Baro,
this court vacated defendants’ sentences and remanded for re-sentencing because the district court
had failed to make factual findings as to the disputed fact of drug quantity attributable to defendants
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No. 07-6500
United States v. Gilmore
in a drug conspiracy. Id. at 569. Unlike the defendants in Baro, Gilmore withdrew his drug quantity
objection; therefore, the PSR served as the factual basis for the sentence, and the district court did
not need to make a separate factual finding as to the drug quantity attributable to Gilmore.
Gilmore faults the Government for failing to notify him at the plea agreement stage that,
in drafting his PSR, the Probation Office would have access to his August 2006 statements that
“substantially increase” the drug amount attributed to Gilmore. Gilmore is not entitled to vacatur
of his sentence on this basis, however, because the Government need not advise a defendant of
the exact sentence he faces at the plea agreement stage. See Fed. R. Crim. P. 11(b)(1)(H) & (I).
The five-kilogram amount was not binding on the district court at sentencing because Gilmore’s
indictment and guilty plea are based on a crime involving five kilograms or more of cocaine
hydrochloride; Gilmore acknowledged in the plea agreement that “the sentencing determination
will be based upon the entire scope of [his] criminal conduct,” and, as Gilmore concedes on
appeal, the plea agreement states that facts other than those in the plea agreement may be relevant
to sentencing and permits Gilmore and the Government to present additional facts at sentencing.
See United States v. Cole, 569 F.3d 774, 777-78 (7th Cir. 2009). In addition, as noted in
Gilmore’s plea agreement and at his plea hearing, the crime with which Gilmore was charged and
to which he pled guilty carried a statutory maximum sentence of life imprisonment, and the
PSR’s drug quantity does not increase that statutory maximum. See United States v. Cox, 565
F.3d 1013, 1016-17 (6th Cir. 2009). Therefore, the district court properly sentenced Gilmore
based on the PSR’s drug quantity.
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No. 07-6500
United States v. Gilmore
The court declines to rule on Gilmore’s ineffective assistance claim on direct appeal
because the existing record is not adequate to evaluate whether Gilmore’s counsel had a strategic
reason to withdraw his objection to the PSR’s drug quantity. See United States v. Sullivan, 431
F.3d 976, 986 (6th Cir. 2005); Massaro v. United States, 538 U.S. 500, 504-05 (2003).
For the foregoing reasons, Gilmore’s motion to supplement the record is denied and his
sentence is affirmed.
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