UNITED STATES ARMY COURT OF CRIMINAL APPEALS 

Before 

CAMPANELLA, SALUSSOLIA, and FLEMING 

Appellate Military Judges 

UNITED STATES, Appellee 

v. 

Sergeant CHICQUELL R. GILMORE 

United States Army, Appellant 

ARMY 20170273 

Headquarters, Fort Stewart 

John S. T. Irgens, Military Judge 

Colonel Michael D. Mierau Jr., Staff Judge Advocate 

For Appellant: Captain Cody Cheek, JA; Major Brian J. Sullivan, JA (on brief); 

Lieutenant Colonel Christopher D. Carrier, JA; Major Brendan R. Cronin, JA; 

Captain Cody Cheek, JA; Major Brian J. Sullivan, JA (on brief in response to 

specified issues). 

For Appellee: Lieutenant Colonel Eric K. Stafford, JA; Captain Austin L. Fenwick, 

JA (on brief in response to specified issues). 

25 January 2018 

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SUMMARY DISPOSITION 

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SALUSSOLIA, Judge: 

 A military judge sitting as a general court-martial convicted appellant, 

pursuant to his pleas, of one specification of wrongfully distributing cocaine in 

violation of Article 112a, Uniform Code of Military Justice, 10 U.SC § 912a (2012) 

[UCMJ]. The convening authority approved the adjudged sentence of a bad-conduct 

discharge, confinement for sixty days, and a reduction to the grade of E-1. 

This case is before this court under Article 66, UCMJ. Defense appellate 

counsel did not assign any error on appellant’s behalf. On 6 December 2017, this 

court specified two issues: 

I. DID APPELLANT MAKE A KNOWING AND 

VOLUNTARY WAIVER OF THE DEFENSE OF 

ENTRAPMENT? 
GILMORE—ARMY 20170273 

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II. IF APPELLANT’S WAIVER OF THE DEFENSE OF 

ENTRAPMENT WAS NOT KNOWING AND 

VOLUNTARY, WHAT, IF ANY, RELIEF DOES 

APPELLANT REQUEST? 

BACKGROUND 

This case stems from a one-time distribution of cocaine by appellant to 

another soldier who, as it turned out, was acting as a Criminal Investigation 

Command (CID) source (source). The source asked appellant to acquire some 

cocaine for the source’s “brother.” Appellant initially declined the request. 

However, after several more requests, appellant acceded to the request. Appellant 

contacted an employee at a local club whom he thought might have access to 

cocaine. The employee obtained some cocaine and rode with appellant to a parking 

lot to meet the source. There, appellant took the cocaine from the employee, gave it 

to the source’s brother (an undercover CID agent), and completed the transaction. 

Appellant made no profit from the transaction. 

There is no evidence before this court that appellant ever used, possessed, or 

sold cocaine before this transaction. The stipulation between the government and 

defense attests to this fact. The only reason in this record appellant became 

involved in this transaction was to “get the CID source of off his back.” After this 

incident, the source attempted to get appellant to obtain more cocaine but appellant 

avoided the source, going so far as to change his telephone number. Eventually, the 

source ended his attempts to arrange another cocaine transaction with appellant. In 

the stipulation of fact and the offer to plead guilty, appellant disclaimed the 

existence of any defense, to include the defense of entrapment.

During the providence inquiry, the military judge, at the government’s 

request, asked the appellant some questions that seemed to implicate the defense of 

entrapment. The military judge, however, did not explain the defense of entrapment 

to appellant during the providence inquiry. It is also not clear from appellant’s 

responses that he understood such a defense existed or that he knowingly and 

voluntarily waived it. Nonetheless, the military judge accepted appellant’s plea. 

LAW AND ANALYSIS 

We review a military judge’s decision to accept a guilty plea for an abuse of 

discretion and questions of law arising from the guilty plea de novo. United States 

v. Inabinette, 66 M.J. 320, 322 (C.A.A.F. 2008). To establish an adequate factual 

predicate for a guilty plea, the military judge must elicit “factual circumstances as 

revealed by the accused himself [that] objectively support that plea . . . .” United 

States v. Davenport, 9 M.J. 364, 367 (C.M.A. 1980). Once the military judge has 

accepted the pleas and entered findings based upon them, we will not set them aside 

unless we find a substantial conflict between the pleas and the accused’s statements 
GILMORE—ARMY 20170273 

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or other evidence of record. United States v. Shaw, 64 M.J. 460, 462 (C.A.A.F. 

2007). More than a “mere possibility” of conflict is required. Id. (internal citation 

and quotation marks omitted). Instead, we must find “something in the record of 

trial, with regard to the factual basis or the law, that would raise a substantial 

question regarding the appellant’s guilty plea.” Inabinette, 66 M.J. at 322. The 

existence of an affirmative defense constitutes a matter inconsistent with a plea of 

guilty. Shaw, 64 M.J. at 462. Accordingly, under Article 45(a), UCMJ, a military 

judge must resolve apparent defenses through further inquiry, or the guilty plea must 

be rejected. United States v. Outhier, 45 M.J. 326, 331 (C.A.A.F. 1996) (internal 

citation omitted). Under Rule for Courts-Martial 916(g), entrapment is an 

affirmative defense. 

Appellant now contends his pleas of guilty were improvident because the 

military judge “failed to properly resolve the apparent affirmative defense of 

entrapment.” (Appellant Br. at 9). The military judge did not explain the defense of 

entrapment to appellant during the providence inquiry. The government concurs 

with appellant and concedes the case should be remanded based on appellant’s lack 

of a knowing and voluntary waiver of the defense of entrapment. (Gov’t Br. at 1). 

We agree. 

CONCLUSION 

The findings of guilty and the sentence are SET ASIDE. A rehearing by the 

same or a different convening authority is authorized. 

 Senior Judge CAMPANELLA and Judge FLEMING concur. 

 FOR THE COURT: 

 MALCOLM H. SQUIRES, JR. 

 Clerk of Court 

MALCOLM H. SQUIRES, JR. 

Clerk of Court 

FOR THE COURT: