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

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

             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


                                          2
GILMORE—ARMY 20170273

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
                                       FOR THE COURT:
                                               COURT:




                                       MALCOLM H. SQUIRES, JR.
                                       MALCOLM     H. SQUIRES, JR.
                                       Clerk of Court
                                       Clerk of Court




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