United States v. Mark GilliamUnited States v. Mark Gilliam
Mark Gilliam appeals his convictions and sentence after pleading guilty to robbery and brandishing a firearm during a crime of violence. We affirm his conviction, but remand for resentencing.
I.
With his criminal trial already under way, Gilliam agreed to change his plea in exchange for the Government’s dropping
At the later sentencing hearing, the Government presented evidence of Gilliam’s threats to witnesses and extensive criminal history, including his nickname, “Kill’em Gilliam.” Over counsel’s objection, the court applied a career-offender enhancement to the Guidelines range for the robbery charge and sentenced Gilliam to 240 months’ imprisonment for robbery, with a consecutive 240 months for brandishing. On appeal, Gilliam challenges the denial of his motion for substitute counsel and the application of the career-offender enhancement.
II.
A.
Gilliam first argues that, because the district court required him to proceed at both the plea-withdrawal evidentiary hearing and sentencing while still counseled by the lawyer with whom Gilliam was dissatisfied, he was denied his Sixth Amendment rights. He seems to argue that, once he complained about counsel’s performance, no constitutionally sufficient representation by that lawyer could follow.
“Once a defendant expresses his dissatisfaction with counsel, the district court is obliged to conduct an inquiry into the defendant’s complaint to determine whether there is good cause for substitution of counsel.” United States v. Vasquez, 560 F.3d 461, 466 (6th Cir.2009). We review the court’s decision under an abuse-of-discretion standard and consider:
(1) the timeliness of the motion, (2) the adequacy of the court’s inquiry into the matter, (3) the extent of the conflict between the attorney and client and whether it was so great that it resulted in a total lack of communication preventing an adequate defense, and (4) the balancing of these factors with the public’s interest in the prompt and efficient administration of justice.
Id. (quoting United States v. Mack, 258 F.3d 548, 556 (6th Cir.2001)).
The district court scheduled one evidentiary hearing to consider both the substitute-counsel motion and the plea-withdrawal issue. Because Gilliam’s appeal does not challenge the denial of his motion to withdraw his plea, we address his claims of error in the denial of substitute counsel, beginning with the court’s observation about Gilliam’s untimely filing. The district court noted that “approximately ten weeks elapsed between the entry of the guilty pleas ... and the filing of Mr. Gilliam’s motion” and that Gilliam failed to offer any reason why he failed to file the motion raising the coercion claim immediately after the plea. When the district court asked why Gilliam failed to mention these problems at the time he entered the guilty plea, Gilliam responded that he was “not really familiar with what I was supposed to do in these cases at all.” The court refused to “play that game” and told Gilliam that he had “been in court more than practically any defendant I’ve ever seen, so don’t tell me you’re not familiar with court procedures.”
The district court adequately investigated Gilliam’s complaints about counsel.
Gilliam’s articulation of his complaints about his communications with his existing lawyer—including claims of intimidation—failed to persuade the court. Gilliam alleged that counsel intimidated him into pleading guilty by suggesting he could receive a lesser sentence through a plea. Counsel confirmed that he advised Gilliam “that the outcome would have been horrendous for him had he not chosen to accept the plea in this particular case.” The court opined that advising a defendant to plead guilty and avoid a greater sentence simply “is not intimidation.” And though Gilliam claimed that the degradation of his relationship with counsel resulted in a total lack of communication, the record reflects that: Gilliam told the court that he had sufficient time to discuss entering the guilty plea with his lawyer, and counsel later met with Gilliam to review the Presentence Investigation Report (PSR). The very nature of his coercion claim—that his lawyer told him to take the plea because of the possible ramifications of refusing to admit guilt—confirms that attorney-client communication occurred. Thus, all relevant factors militated against Gilliam’s request for substitute counsel.
The district court also asked Gilliam’s counsel whether he wanted to be heard on the motion for substitute counsel. Counsel’s statement at the hearing was this:
Your Honor, the advice that we gave Mr. Gilliam was good advice for him in terms of my experience as an attorney and the fact of the sentence that he could potentially serve if convicted on all counts in this indictment. This was probably the lesser of the, the two avenues to approach the case, and it also didn’t take into effect there was a potential finding out there of a continuing criminal enterprise—and I’m not certain that he, that the court would have found it was a continuing criminal, excuse me, a firearm charge, career criminal, the firearm charge, I misspoke, your Honor; and based upon that, that the outcome would have been horrendous for him had he not chosen to accept the plea in this particular case.
I think I gave him my best advice. I still think it was good advice. I was rather appalled by the letter I got, but that’s not, hasn’t been the first time in 32 years of practicing criminal law that you get one of these kind of letters. I still think it was good advice for him.
Counsel noted that he disagreed with Gilliam’s letter criticizing him, but it was not “the first time in 32 years of practicing criminal law that [he received] one of these kind of letters.” Moreover, as seen by his actions at sentencing—objecting to the PSR, filing a sentencing memorandum, and arguing these objections at the hearing—counsel continued to work with Gilliam for his benefit after the evidentiary hearing. While the court “fully understood the position” counsel had been placed in, it found that Gilliam “established no basis for the replacement of [counsel,]
Though Gilliam briefs ineffective assistance of counsel issues in conjunction with his substitution-of-counsel arguments, we decline to reach that issue due to the absence of a record developed for consideration of that subject. See United States v. Sullivan, 431 F.3d 976, 986 (6th Cir. 2005) (a
B.
“We review de novo a district court’s conclusion that a crime qualifies as a predicate offense for the career-offender designation.” United States v. Skipper, 552 F.3d 489, 491 (6th Cir.2009). The district court—properly under the circuit law at the time—applied a career-offender enhancement under
The Government argues that we need not remand in this case because any error in Gilliam’s sentencing is harmless because the judge considered a 480-month sentence appropriate in light of the
III.
We affirm Gilliam’s convictions, vacate his sentence, and remand for resentencing. Because Gilliam was sentenced before we held that Tennessee reckless endangerment was not categorically a crime of violence, the Government may present additional evidence on remand that Gilliam’s Tennessee reckless endangerment conviction is a crime of violence. Id. at 455 n. 10.