## UNITED STATES ARMY COUR T 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 Che ek, JA; Major Br ian J. Sullivan , JA (on brief);
Lieutenant Colonel Chr istopher D. Carrier, JA; Major Brendan R. Cronin, JA; Captain Cody Cheek, JA ; Major Brian J. Sul livan, JA (on brief i n 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

--------------------------------- SUMMARY DISPOSITION

---------------------------------

SALUSSOLIA, Judge:

A military judge sitti ng as a general court-martial convicted appellant, pursuant to hi s pleas, of one specification of wrongfully distr ibuting cocaine in violation of Article 112a, Uni form Code of Milit ary Justice, 10 U.SC § 912a (2012) [UCMJ]. The convenin g authority approved the adjudge d sentence of a bad-conduct discharge, confinement for sixt y days, and a re duction to the g rade of E-1.

This case is before this court under Artic le 66, UCMJ. Defense appellate counsel did not assign any erro r on appellant’s behalf. On 6 D ecember 2017, this court specified two issues:

I. DID APPELLANT MAKE A KNOWING AND
VOLUNTARY WAIVER OF THE DEFENSE OF
ENTRAPMENT?GILMORE—ARMY 20170273

2 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 c ocaine by appe llant to another soldier who, as it turne d out, was acting as a Criminal Investigation Command (CID) source (source). T he source asked appellant to a cquire some
cocaine for the source’s “broth er.” Appellant initially declin ed the request. However, after several more reque sts, appellant a cceded to the request. Appellant contacted an employee at a loc al club whom he thought might hav e access to cocaine. The employee obtained some cocain e and rode with appe llant to a parking
lot to meet the sourc e. There, appellant took the cocaine from the employee, gave it to the source’s brother (an undercover CID agent), and complete d the transaction. Appellant made no profi t 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 a ppellant became
involved in this tran saction was to “get the CID source of off his back.” After this incident, the source attempted t o get appellant t o obtain more cocaine but appellant
avoided the sour ce, going so far as to change his telephone num ber. Eventually, the source ended his attemp ts to arrange anothe r cocaine transactio n with appellant. In the stipulation of f act and the offer to p lead guilty, appellan t disclaimed the existence of any defen se, to include the defense of entrapment.

During the providence i nquiry, the military judge, at the gover nment’s request, asked the appellant som e questions that seemed to impl icate the defense of entrapment. The military judge, however, did not explain the d efense of entrapment to appellant during the providence inquiry. It is also not cle ar from appellant’s responses that he understood such a defense existed or that he knowingly and voluntarily waived it. Nonetheless, the m ilitary jud ge accepte d appellant’s plea.

LAW AND ANALYSIS

We review a military judge’s dec ision to accept a guilty plea f or an abuse of discretion and questi ons of law arising fro m the guilty plea de novo. United States
v. Inabinette , 66 M.J. 320, 322 (C .A.A.F. 2008). To est ablish an adequate f actual predicate for a guilty plea, the military judge m ust elicit “fa ctual circumstances as revealed by the a ccused 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 entere d findings based up on them, we wil l not set them aside
unless we find a substantial conf lict between the pleas and the accused’s statementsGILMORE—ARMY 20170273

3 or other evidence of record. United States v. Shaw , 64 M.J. 460, 46 2 (C.A.A.F. 2007). More t han a “mere possibility” of conflict is required. Id . (internal citation and quotation marks omitted). In stead, 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 app ellant’s guilty plea.” Inabinette , 66 M.J. at 322. The
existence of an affirmative defense constitutes a matter incons istent with a plea of guilty. Shaw , 64 M.J. at 462. Accordingly, under Artic le 45(a), UCMJ, a mi litary judge must resolve app arent defenses through further inquiry, o r 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 f or Courts-Martial 916(g), entra pment is an
affirmative defense.

Appellant now contends his pleas of guilty wer e improvident bec ause the military judge “failed to properly resolve t he apparent affirma tive defense of entrapment.” (Appellant Br. at 9). The militar y judge did not explain the defense of entrapment to appellant during th e providence inq uiry. The gov ernment concurs with appellant and concedes the case should be re manded based o n appellant’s lack of a knowing and vol untary waiver of the d efense of entrapment. (Gov’t Br. at 1). We agree.

CONCLUSION

The findings of guilt y and the sentence are SET ASIDE. A rehea ring 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: