* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 25 2003 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. DWAYNE ALLEN GILMORE, Defendant-Appellant. No. 02-3172 (D.C. No. 01-CR-40106-JAR)

(D. Kan.)



### ORDER AND JUDGMENT *

Before SEYMOUR , HENRY and LUCERO, Circuit Judges.

Dwayne Allen Gilmore pled guilty to voluntary mansl aughter in violation of 18 U.S.C. § 1112 for the death of his two-year o ld stepson, and to assault on a person under the age of sixteen resulting in seriou s bodily injury in violation of 18 U.S.C. § 113(a)(7), stemming from a prior incide nt involving the same child. He appeals his sentence of 180 months. We affirm. Mr. Gilmore killed his stepson by kicking him in th e chest. To avoid trial on a charge of second degree murder, he pled guiltyto voluntary manslaughter1 The fact that the actual sentence imposed falls in the sentencing range

contemplated by the plea agreement as well as the r ange chosen by the court does not automatically render any potential error harmle ss unless the court explicitly states that it would have chosen the given sentence regardless of which range it selected. See United States v. Urbanek, 930 F.2d 1512, 1515-16 (10th Cir. 1991). While the court noted its intention to depart to th e statutory maximum, we are not persuaded this is a sufficiently explicit statement . Erring on the side of caution, we will determine whether level 36 was otherwise improper. -2- and agreed to move jointly with the government for an upward departure to a

level at which he would be sentenced in line with asecond degree murder conviction. The plea agreement contemplated a depa rture to offense level 35, a three point reduction for acceptance of responsibil ity, and a sentencing range of 151-188 months. The government agreed not to oppos e Mr. Gilmore’s request for a sentence at the low end of that range. The plea agreement and the sentencing hearing transcript clearly indicate Mr. Gilmore’s u nderstanding that the court would not be bound by the terms of the plea agreeme nt. Despite the government’s urging, the district courtdeclined to impose Mr. Gilmore’s requested sentence of 151 months. Believ ing the upward departure should extend one level beyond that contemplated in the plea agreement, the court departed to a level 36. Allowing a reduction for a cceptance of responsibility, the court reached a sentencing range of 168 to 210 mont hs. It then sentenced Mr. Gilmore to 180 months, which was the statutory maxi mum punishment for the two counts and also fell within the overlap of the two sentencing ranges at issue here. 12 Mr. Gilmore also contends the government violated its agreement not to

oppose a sentence at the low end of the guideline r ange by arguing on appeal in support of the district court’s sentencing decision . We disagree. The plea agreement is silent as to the government’s rights o r obligations regarding arguments on appeal, stating only that the governme nt agrees “not to oppose” a sentence at the low end of the guideline range. Wh ile there is no time limitation in the language of the plea agreement, there is als o no explicit statement of a continuing duty. Other circuits have held that the government’s waiver of its right to participate must be explicit. See, e.g., United States v. Howard, 894 F.2d 1085, 1091 (9th Cir. 1990) (“[W]e will not bar the government from participating in an appeal when the plea agreement fails to indic ate that the parties clearly intended such a result.”); Brooks v. United States , 708 F.2d 1280, 1282 (7th Cir. 1983) (construing obligation as ending with sentenc ing itself). We decline to imply a promise on the part of the government exten ding past sentencing. Accordingly, we DENY Mr. Gilmore’s motion to strike the government’s br ief. -3- Mr. Gilmore contends the court erred, maintaining t hat the degree of upward departure was unwarranted. 2 We do not agree. The district court carefully apprised Mr. Gilmore t hat the plea agreement

did not bind the court to sentence him to a maximum of 151 months:

THE COURT: Just so I’m clear, the agreement that t he defendant and the Government have reached is that a lthough this superceding information involves two charges that are different than the way this was charged originally – and one is a voluntary manslaughter charge which has a statutory maximum p enalty of 10 years, and the other is an assault charge which has a maximum statutory penalty of five years – the Government an d the defendant have agreed that if the Court were to sentence this defendant strictly by the sentencing guidelines, this defendant would receive a sentence in a range that would be substantially less than wh at he would receive under the sentencing guideline range for a murder two conviction; but through this plea agreement, the pa rties are stipulating that the Court can apply this particula r guideline provision which will allow the Court to depart upward, to the top of the sentencing guideline range, and essentially to the top of the-4-

statutory penalties such that the Court could sente nce this defendant to a total of 15 years actual time; is that correct ? MR. LUEDKE: That’s the statutory maximum, Your Hono r. THE COURT: Correct. That’s not the guideline maxim um, but because of the stipulations you all have entered in to, essentially you are agreeing that the Court can sentence this defen dant to the statutory maximum, 15 years, which is about what th e defendant would receive under the guidelines with a second-de gree murder conviction; is that correct? MR. LUEDKE: That’s correct, Your Honor. I think that both the defendant and the Government had envisioned in this plea a sentence of 151 months, which would have been the b ottom of the guideline range had the defendant pled to second-de gree murder, received the enhancements and credits that would have been appropriate. That would have been the bottom of th e guideline range. THE COURT: All right. And this plea agreement is n ot binding on the Government, correct? MR. WURTZ: It’s binding on the Government; it’s notbinding on the Court. THE COURT: Or, I’m sorry, not binding on the Court. MR. WURTZ: Yes. THE COURT: All right. Is that your understanding o f the terms of the plea, Mr. Gilmore? MR. GILMORE: Yes, ma’am. Rec., vol. II at 18-20 (emphasis added). Mr. Gilmo re thus understood not only that he might be sentenced anywhere in the 151-188 month range to which he had agreed, but that the statutory maximum was 180 mont hs. More importantly, he had agreed to an upward departure and knew the court was not bound to remain at any particular level. The degree of upward departure is committed to the discretion of the sentencing court and we review only for abuse of th at discretion. See, e.g.,-5-

United States v. Goldberg, 295 F.3d 1133, 1135 (10th Cir. 2002); United States v.

Whiteskunk, 162 F.3d 1244, 1249 (10th Cir. 1998); see also United States v. Li , 206 F.3d 78, 88 (1st Cir. 2000); United States v. Rodriguez-Castro , 908 F.2d 438, 442 (9th Cir. 1990). The court gave numerous expli cit reasons for the degree of departure as follows: The court intends to depart upward to the statutorymaximum on both counts . . . The reason the court is intending to d epart to this extent is because of the very heinous nature of this offense. The guideline range - or the sentencing guidelines themselves - c all for this type of offense for a four-level enhancement under the spec ific offense characteristic, Section 2A2.3(b)(1), if the offense resulted in substantial bodily injury to an individual under th e age of 16. . . . The court finds that this particular offense, of co urse, was committed against a child far under the age of 16, a two-year -old child, and it was extreme substantial bodily injury, heinous bodi ly injury, done to this essentially baby. And the victim, a two-year- old child, died as a result of the injury sustained after the defendant kicked him in the chest, an extremely heinous and brutal and vicious thing to do to anyone, much less a two-year-old baby, and then sho ok him and dropped him onto the ground two or three times. Th e Court has determined that the actual conduct underlying this offense is far outside of the heartland that the drafters of the s entencing guidelines had in mind when they called for a four-level enhan cement for substantial bodily injury to someone under the age of 16. The Court does not think that within the heartland of cases t he Sentencing Commission considered a case such as this – an extr emely vulnerable and young child and an injury that far exceeded the Court’s discretion and determination – as something that co uld be characterized as substantial[] bodily injury. So f or this reason the Court’s going to depart upward more than the partie s’ joint motion asks for or recommends. . . . The Court has taken i nto consideration the nature of the instant offense, the defendant’s personal history and characteristics, his specific involvement in the in stant offense of conviction, and the provisions of sentencing guidel ines section 5K2.1, that’s the guideline on death; 5K2.21, the g uideline on-6-

dismissal and uncharged conduct. . . . The Court be lieves this sentence is appropriate based on the death of the d efendant’s stepson, the extremely brutal and heinous injury that was do ne to the body of the two-year-old, and further on the dismissal and uncharged conduct that the defendant was charged with in the original indictment. Additionally, the Court believes that the sentence will meet the objectives of punishment, general deterrence, and i ncapacitation. Rec., vol. III at 5-7, 19. While we acknowledge that one of the factors mentio ned by the court – the use of the guideline factor of death – is not appro priate because it is already an element of the offense, we are permitted in such a case to examine the district court’s reasoning as a whole to determine whether the degree of departure was taken in reliance on the inappropriate factor, or w hether the same sentence would have been imposed in the absence of consideration o f that factor. See

Whiteskunk, 162 F.3d at 1249-50. Our review of the record in dicates that the district court did not particularly rely on the fac tor of death, and that the court intended to sentence Mr. Gilmore to the statutory m aximum in any event, based on the totality of the considerations noted above. We are not persuaded the district court abused its discretion in the degree of upward departure in this case. Accordingly, we AFFIRM Mr. Gilmore’s sentence.

ENTERED FOR THE COURT

Stephanie K. Seymour Circuit Judge