*1 palm. in his glass imbedded ing piece teeth,
Here, a cut cracked Kane suffered nose, While lamenta- face. bruised injuries
ble, these there is no indication treatment. immediate medical required allegedly custody, and only in Kane was attention, four to seek medical unable care alleged denial of medical hours. and, than Martin here was less serious therefore, the district conclude we summary granting did not err Hargis on Kane’s judgment for Officer claim.
IV forth, we affirm both set For the reasons summary judg- court’s denial of the district claim and its on the excessive force ment summary judgment on the denial grants of prose- and malicious medical treatment claims.2 cution AFFIRMED. America,
UNITED STATES Plaintiff-Appellee, GILLIAM, Jr., B. Edward Defendant-Appellant.
No. 90-5548. Appeals, United States Court Fourth Circuit. Argued Sept. 1992. Decided Feb. deny Hargis' reply motion to strike Kane’s brief. 2. We also *2 Norton, VA, ar- Earls, Edward
Donald defendant-appellant. for gued Atty., Campbell, Asst. U.S. Marie Julie (E. Montgomery VA, argued Abingdon, Baer, Asst. Stephen U. Tucker, Atty., U.S. VA, Kilgore, Roanoke, Jerry Atty., U.S. brief), VA, Abingdon, Atty., Asst. U.S. plaintiff-aрpellee. WILKINSON, WIDENER, Before Judges. WILKINS, Circuit OPINION
WILKINS, Judge: Circuit Gilliam, appeals sen- Jr. B.
Edward guilty to two pleas of resulting from conspiracies separate charging indictments intent with the possess toor to distribute in violation cocaine distribute 1981). both (West U.S.C.A. § to distrib- involved indictments intent to distrib- possess with the ute or conduct cocaine, sentencing the ute level. offense establish base grouped to Commission, Sentencing (Nov. 3D1.2(d) Manual, § Guidelines kilo- 1989). a result of to Gilliam cocaine grams of conspiracies, in one of his involvement quanti- additiоnal combined which other from cocaine attributable ty of level offense a base produced conspiracy, 2Dl.l(c)(5), 2D1.1(a)(3), U.S.S.G. of 34.1 §§ reduced 2D1.4(a). re- acceptance by two level offense 3E1.1, deter- U.S.S.G. sponsibility, History Cate- Criminal that Gilliam’s mined small, have increased tively would not it specific make a court failed The district U.S.S.G. See of 34. level base offense of cocaine finding factual (offense applies when de- 2D1.1(c)(5) level 34 as a be held should at least rеsponsibility for to have conspir- fendant this second his involvement result of cocaine). kilograms of less than 50 However, 15 but was rela- acy. because range reduction recommend two-level guideline I, resulting in a gory was respon- acceptance level base offense imprisonment. 121-151 months at the oppose a sentence a sentence imposed sibility, would The court Pt. A. Ch. range, resulting guideline lower end of 121 months. departure for a downward would move *3 no there wаs basis that contends Gilliam assistance. provided substantial if Gilliam of the the conclusion support to mistakenly and Gilliam The Government accountable, held he should be court that mandatory mini- 10-year believed that kilograms 30 sentencing purposes, plea apply the would when mum sentence sentence, the agree, vacate cocaine. We plea the Consequently, entered.2 was and remand. penalty the 10 that was agreement stated Although prior imprisonment. yеars to life I. acknowledged sentencing parties the to to one indictment clarity, we refer For minimum was mandatory the sentence that other as and the the Castrillon to not seek with- inapplicable, Gilliam did The Greear indict- the Greear indictment. Indeed, during sentenc- the plea. draw his of cocaine alleged that the ment he under- ing hearing indicated that Gilliam The grams. than 500 was more involved a ten- receive at least that he would stood indictment, one that is Castrillon year sеntence. alleged that appeal, of this focus primary pursuant conspiracy colloquy During in a conducted were involved individuals 28 11, or distributing of Criminal Procedure responsible to Federal Rule that was 30 Gilliam intent to distribute determined that possessing with the This indict- and copy of cocaine. of the indictment kilograms or more had received terms activi- general described nature ment that he understood in an exten- and the participants penalties, ties of numerous maximum charges, the years and three conspiracy spanning as a result rights sive waived constitutional possession and distribu- men- involving However, acts of not the court did plea. Virgi- locations tion of cocaine various of cocaine the issue of tion Tennessee, Although the nia, Florida. and conspiracy. Govern- The involved either specific Castrillon indictment evidence the court the to ment then related several individual cocaine to quantities of pleas of Gilliam suрporting the specific quantity of cocaine no participants, of evi- The recitation coconspirators. other refer- The sole to was attributed Gilliam. a detailed account dence included kilograms or connecting to 30 ence participants numerous activities of in the conclud- more of cocaine was Gilliam. other than conspiracy Castrillon Castrillon ing paragraph alleged that example, Government For participants thе 28 which listed States into the United imported Castrillon conspiracy involved distri- charged that the kilograms to 4000 1600 approximately intent to dis- with the possession or bution period. four-year per year over cocaine cocaine. kilograms or more of tribute 30 high- other to Castrillon In contrast the Government participants, level state the did not plea agreement distributor a street-level that Gilliam was the Government of cocaine half-gram, users in individual cocaine tо It to Gilliam. should be attributed believed quantities. ounce eight-ball, and gram, only that the Government would provided only statutory un restraint (finding conspiracy "[t]he 21 pled guilty to violate 2. [could] the sentence 1981), 841(a) (West der 846 § [was] which is a viola- U.S.C.A. § sub prescribed for the 1981), (West the maximum exceed rather § tion of 21 U.S.C.A. 846 1062, denied, offense”), U.S. 841(a). 493 cert. stantive §of than a substantive violation 878, (1990). No In 961 107 L.Ed.2d 110 S.Ct. October 1988. Prior ended in 1988, subject was amended § vember penalty provisions November penal same that section 841(b) (West аp- who Supp.1992) those violate did not U.S.C.A. § underlying of prescribed for the ties as those See United ply to violations (West Supp.1992). Cir.1989) 21 U.S.C.A. Vinson, fense. See 741 n. 1 present was sole attribution of order to This reference evidence should be quantity of cocaine Gilliam. cocaine which Gilliam specific Alternatively, the Govern- responsible. pre- concluded its After pointed ment Gilliam’s sentation, the court found charged his the indictment which involve- by a supported factual basis. sufficient а conspiracy ment in that was attorney then special prosecuting re- kilograms 30 more for the distribution of that Gilliam’s be con- quested Rejecting requests of cocaine. the sentencing at the same time as ducted opportunity be given Government participants because other of several evidence, concluded the court anticipated dispute as to prosecutor today as while it had “no evidence quantity of various attributable *4 to amount” of cocaine attributable Gilliam planned to a participants and num- the it had conspiracy, from Castrillon no at the sen- ber of witnesses on this issue assign choice other than to the amount attorney tencing hearing. Gilliam’s stated indictment, kilograms, in the 30 to the objection that he had no Govern- conspir- for his in that Gilliam involvement request. ment’s acy. probation sentencing, the officer Prior a presentence report which con- submitted II. quantity cluded that the of cocaine for imposed drug be held accountable The sentences should by upon significantly be offenses are influenced “cannot determined based informa- government, quantity drugs tion received from the howev- of illicit involved. See 2Dl.l(c). pro appear guidelines iter does that Gilliam’sinvolvement U.S.S.G. § kilograms.” filed was 15 to 50 vide that relevant conduct shall be deter a objection recommendation, on the acts and written mined basis of “all omis contending the quantity by that of cocaine at- sions committed or aided and abetted defendant, tributed him inaccurate. In an for which was ad- defendant pro- accountable, presentence report to the dendum would be otherwise oc wrote, during he bation officer entered curred the commission of of a “[i]n plea Guilty to of Count One no infor- fense of conviction.” U.S.S.G. 1B1.3(a)(1). commentary being party from mation received either as section § specific amount, provides conspiracies in guidelines to thе 1B1.3 further are quantity computed involving drug as the total amount of the offenses the participant will conspiracy.” which each individual be vary: may held accountable sentencing hearing, At the Gilliam admit- may broadly a count be worded in part ted that his involvement many partici- include conduct purchased approxi- Greear he time, pants period over a substantial However, mately grams of cocaine. he scope the jointly-undertaken crimi- denied involvement in the Castrillon conduct, activity, and hence relevant nal stating conspiracy, pled guilty that he necessarily every is not the same for because Government participant. it Where is established that plea agreement refused enter a un- into scope the conduct was neither within pled guilty less he the Greear to both agreement, nor defendant’s conspiracies. Castrillon The Government reasonably foreseeable connection ten-year requestеd impose activity criminal defendant sentence, relying on the minimum sentence undertake, jointly such agreed conduct provided for in plea agreement. Re- establishing not included in defen- questions sponding by the district court guideline. offense dant’s level under this concerning the effect of Gilliam’s denial of comment, 1B1.3, responsibility (n. 1). for any amount of cocaine U.S.S.G. Accord- § indictment, associated with to a ingly, the Castrillon order attribute a continuance requested purposes in fоr the acts others activity, determines to have a reasonable factual criminal jointly-undertaken scope 6B1.4(a). And, been within those acts must have basis. See must agreement and the defendant’s if carries its burden a defen- Government to the reasonably foreseeable have been properly object to a recom- dant fails to Thus, participant in a Id. defendant. finding presentence report mended conspiracy may drug be multi-participant that the cоurt determines to be reliable. accountable, sentencing purposes, Terry, See drugs quantity greater or lesser (4th Cir.1990). Additionally, the Gov- potential This coparticipants. than other by present- ernment meet its burden con- among coparticipants is differentiation the court ing evidence deems suffi- articulat- multiple purposes sistent with drugs cient to establish Sentencing Act. Reform See ed to a defendant. attributable See U.S.S.G. 3553(a) (West Supp. 1985 & U.S.C.A. § Here, 6A1.3(a). none of these methods 1992). thаt in order for does not mean support the determination made the dis- for the participant to be held accountable trict court of the amount attributable to to the total Gilliam. participant a whole that the conspiracy as apex necessarily at the must be *5 First, quantity the of cocaine for that a organization. It does mean criminal acknowledged responsibility which Gilliam language the focus on the of court should during plea proceedings the fеll far short that is commentary that describes conduct quantity by the the of in connection with “reasonably foreseeable about, asked and court. Gilliam was never agreed activity the defendant the criminal volunteer, responsibility any did not his 1B1.3, jointly undertake.” U.S.S.G. to comment, during plea colloquy. amount of cocaine 1). (n. below, guilty plea, further his As discussed drugs the amount of When instance, itself, not, did in this in and of responsible to which a defendant is be responsibili amount to an admission of his court must make an disputed, is the district kilograms of cocaine. Additional ty for 30 independent of the factual issue resolution recita object failure to to the ly, Gilliam’s 6A1.3(b). sentencing. at See did not by the tion of evidence Government prov of The Government bears the burden accountability to an admission of amount ing of the evidence the by preponderance a quantity fixed of cocaine because for a drugs a defendant quantity of for which par not attribute a presented evidence did sentencing. at should be held accountable to him. ticular amount of cocaine Goff, v. United States can met in burden be Second, court did not the district example, may it met ways. several For be of finding quantity on the properly base its acknowledgment during by a defendant’s described in the indictment. cocaine colloquy sentencing proceed the Rule or charged that nine co- indictment Castrillon indict ings amount set forth in the that the “combined, Gilliam, including conspirators, is cor alleged by ment or together” with 19 conspired agreed and defendant, It be met when a rect. three-year participants over a unindicted challenge the reserving right his to without possess period to distribute or pleads sentencing purposes, amount for kilograms or more of to distribute 30 intent an indictment that attributes a But, indict generally worded cocaine. quantity drugs to the defend specific specif identify any ascribe ment did not by Alternatively, may it be met a ant.3 op- attributаble to Gilliam parties the court ic amount stipulation defendant, Thus, drugs posi- to a with- amount of the dissent mischaracterizes our right by a the defendant of it states that the has estab- out reservation tion when drugs challenge quantity plea guilty may attributable per se rule” that "a lished "a him, not, own, finding by the court proof be sufficient for a constitute fact will on its alleged quantity be attrib- alleged contrary, should in fact the indictment.” To the a alleges an an uted. Thus, and stated that by a Government conspiracy as whole.4 posed to the finding on the guilty to an indictment was based plea of recommended while allegation of containing indictment for the an amount drugs sentencing, conspiracy. At defense entire by reservation may, the absence probation officer on examined the counsel dispute right his defendant of finding, the recommended the basis for constitute an admis- sentencing, testimony indicates that a review of this sentencing pur- quantity sion of that probation officer did not have sufficient not did make poses, Gilliam’s permit a reasoned estimate information to Moreover, recogni- any such attribution. attributable defense coun- by the Government tion Therefore, we believe Gilliam. colloquy that following sel showing to sustain his made sufficient attributable of cocaine presen- Terry. burden under coconspirators remained and several of report “sufficient indicia of lacked po- strongly supports Gilliam’s unresolved reliability support probable its accura- sition. 6A1.3(a), acceptance of its cy,” U.S.S.G. § by the district court would conclusions Third, finding con- recommended discretion, abuse of have amounted an presentence report does tained Terry, at 160. see 916 F.2d district support the determination court, on this had the court relied Finally, before us demon- the record the sen- finding, we believe recommended court lacked suffi- strates that have an tencing would committed an inde- make cient evidence which United States abuse discretion. See of the amount of pendent determination *6 F.2d Terry, 916 should have been cocaine for which Gilliam presentence Terry court held responsible. sentencing, the At Gov- held form the basis for factual report may rely upon initially sought ernment disputed court on findings by the district contemplated that plea agreement, which the defendant shows unless factual issues which the court minimum sentence presentence the information “that ten impose upon years, was could unreliable, is report articulate[s] pled guilty an and the fact contained therein are why the facts reasons in a his involvement alleging 162. or at untrue inaccurate.” 30 kilo- conspiracy that had distributed is on the defendant show “The burden Subsequently, grams more cocaine. unreliability pre- inaccuracy or during several occasions sen- it offered on report.” Id. sentence Gilliam’s in- tencing present evidence of if conspiracy in the Castrillon vоlvement objection to a written Gilliam filed the evidence was the district court believed finding of the amount the recommended necessary. the court elected Because respon held he should be cocaine which amount set based sentence Gilliam presentence to the In the addendum sible. per- indictment and declined to forth objection, to Gilliam’s report responding evidence, present mit the Government writing charged with probation officer on which the court could there no basis acknowledged report presentence required by determination make the could not be deter the amount lB1.3(a)(l). provided information mined based on the Castrillon, fact, kilograms less than the 30 refer- prior the dis- sible far In evidentiary hearing an trict court conducted indictment to have been distributed enced kilograms should be example, and determined that 85 conspiracy. coconspir- For pled guilty to the attributed to him. Castrillon ator, Harvey, Eugene was sentenced to 97 Willis conspiracy as a same indictment months, assigned having quantity of at been distributing responsible for 30 kilo- whole was kilograms than kilo- least 3.5 but more coconspira- grams or of cocaine. Other more grams cocaine. respon- named in the indictment were tors possesses understanding an the defendant sen- Accordingly, we vacate Gilliam’s resentencing. On the law in relation to the facts.” remand for tence remand, afforded shall be at 1171 McCarthy, 394 U.S. S.Ct. regard- omitted). evidence opportunity (footnote in- McCarthy did not conspiracy respect ing the Castrillon the issue of the extent to which a volve which it asserts Gilliam admission; a factual constitutes After Gilliam be held accountable. should foregoing indeed the statement was the opportunity to rebut provided an is language of the issue. This only mention Government, the by the relied on evidence way suggests evidentiary in no independent shall make an guilty plea limited to the effect of a a sen- impose determination factual charge. formal elements finding.5 consistent with its Broce, recently, More in United States v. AND REMANDED. VACATED 563, 109 757, 102 L.Ed.2d 927 488 U.S. S.Ct.
(1989), preclusive the Court examined the later, guilty plea in a collateral effect of a WIDENER, Judge, dissenting: Circuit 35) (Rule challenge Al to a sentence. today that a defen- holds though, again, the facts in Broce are not alleg- to an dant’s the instant precisely the same as those of to distrib- ing participation case, plainly wording of Broce rather thirty kilograms of cocaine ute at least that the factual admissions worked states evidence constitutes insufficient guilty plea may indeed extend by entry of a with and in fact was involved beyond the text of the relevant criminal that amount of cocaine. responsible for statute: rule is opinion I am of that this required by contrary logic and is not holding In that the admissions inherent law, respectfully I dissent. “go only the acts guilty plea in a
constituting conspiracy,” the Court Appeals misaрprehended the nature I. plea. guilty plea A “is and effect of majority’s position is its to the Crucial admits more than a confession which *7 not, plea guilty may of on premise that a did various acts.” It is that the accused own, alleged proof of fact its constitute that he committed an “admission nothing find to autho- in the indictment. I By him.” enter- charged against crime plea rule. That a per rize such a se accused is not ing plea guilty, a crim- formal elements of a admits all the discrеte simply stating that he did clear; however, it is not true charge inal is indictment; he is in the acts described limited, guilty plea that the effect of a is crime. guilt a substantive admitting of law to such formal elements. a matter Broce, 570, at 762 at 109 S.Ct. 488 U.S. Supreme appears The States Court added). In (citations omitted) (emphasis precise issue to have decided never language opinion I am of that light of this present The in the context. before us required by only is not not today’s result has, however, spоken to the nature Court rather, contrary is true if precedent; plea in a of the factual admission embodied Indeed, language in follow the Broce. we First, guilty. McCarthy in v. United aside, language with the italicized even 1166, States, 394 U.S. 89 S.Ct. were not held that two defendants Broce (1969), that L.Ed.2d 418 the Court stated conspira- permitted prove there was guilty plea is an admission of “because pleaded guilty to two. cy they had when of a formal criminal all the elements point, precisely not be оn truly voluntary unless While Broce charge, it cannot be If, remand, bargained plea agree- for which he in the the Government chooses not to evidence, Gilliam should be sentenced ment. imprisonment, the minimum sen- to 120 months II. departure nearly so that so it is suggest I unsound. is from it my position will that summary and so In the district in which case is not misunderstood, pro- the indictment not be responsible for the defendant part court held as follows: pertinent in vides charges in from drugs derived quantities convict he was on which indictment I COUNT which the case in not a it is And ed. agreement in a reserved has defendant charges: Jury The Grand contest right or otherwise continuing 1985 and the end of A. From such Neither of drugs involved. October, in Western through Rather here. applies facts
set of Virginia and else- District of Judicial district court case in Jr., Gilliam, ... where, B. Edward ... drugs that to the defendant combined, knowingly others named] [and charge of the clearly shown along agreed together conspired and in fact the defendant to which indictment co-conspirators ... [nam- with unindicted had a Third Circuit guilty.* The pleaded possess with or to ing to distribute them] from those indistinguishable facts case on (30) thirty at least to distribute intent Parker, F.2d States here in United sub- mixture of more of a kilograms the defen In case (3rd containing a detectible stance from evidence derived that the argued dant controlled cocaine, II narcotic a Schedule items of stolen the value the indictment 21, United substance, of Title in violation his used calculate added) (italics Code.... insufficient. level was base offense indictment, the de- charge To this stealing 122 guilty to pleaded guilty. fendant, pleaded $22,- approximately at mail valued pieces of his that Gilliam 500.00, judge as stated The district Parker, sentencing at 175. He 874 F.2d charged in agreement. should be charged however, specifically thirty kilograms he was argued, pleaded had of mail to which Gilliam forty-five pieces stealing only for less, thereby guilty. lower valued much that were Parker, 874 level. offensе
ing base does, that “... hold, as the To court, rejecting his 175-76. support the conclu- no basis there was recognized stated, is well argument, “[i]t ... [Gilliam] sion of the admits a defendant by pleading accountable, should be charge,” facts the material (at kilograms cocaine” for 30 purposes, plea of defendant’s] and held “[the 1010), I think is error. *8 purposes value guilty admitted stipu proof further and no his sentence Parker, F.2d at required.”
lation was omitted). the same effect (citations To Johnson, F.2d 1255 is United Cir.1989) follows Parker (8th which plea admit that defendant’s holding alleged in the facts material ted “the at 1256. 888 F.2d charge.” * indispensable believes quirement the cases in the line of distinguishes Smith attributing a defendant Circuit, relating conduct to relevant holds that conduct Sixth here, where, facts used charges necessary not be is not to dismissed sentencing "some evi- without derived defendant were allegation beyond in an mere dentiary basis he charges to which from the Smith, 887 F.2d States v. indictment." guilty. pleaded actually evidentiary re-