United States v. David Gilmore

Case: 14-11126 Document: 00513166455 Page: 1 Date Filed: 08/24/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 14-11126 August 24, 2015
c/w No. 14-11130
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DAVID BELVIN GILMORE,
Defendant-Appellant
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 4:03-CR-241-1
USDC No. 4:14-CR-83-1
Before SMITH, BENAVIDES and ELROD, Circuit Judges.
PER CURIAM: *
David Belvin Gilmore entered a conditional guilty plea to bank robbery
and was sentenced to 100 months of imprisonment and three years of
supervised release. In addition, his supervised release term previously
imposed for two bank robbery convictions was revoked, and he was sentenced
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 14-11126
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to 24 months of imprisonment on each count, to be served consecutively to each
other and to the sentence imposed for the new bank robbery conviction.
According to Gilmore, the district court abused its discretion in denying
his motion to file a notice of an insanity defense out of time under Federal Rule
of Criminal Procedure 12.2(a), asserting that he showed good cause for the
untimely filing. We disagree. The Federal Public Defender had represented
Gilmore for about a month and a half before the deadline for pretrial motions.
Gilmore’s Bureau of Prisons (BOP) medical records and the Presentence
Report prepared for sentencing on his prior bank robbery convictions, which
both showed Gilmore had a history of mental illness, were available during
this period. Gilmore was evaluated by Dr. Emily Fallis on April 30, 2014, and
Dr. Fallis provided a report on the day before the deadline for pretrial motions.
On this record, we cannot say that the district court abused its discretion in
finding that Gilmore failed to establish good cause for filing the motion late.
See United States v. Castro, 15 F.3d 417, 421 (5th Cir. 1994) (addressing Rule
12.2(b), (d)); see also United States v. Pollard, 584 F. App’x 241, 241 (5th Cir.
2014) (reviewing a good cause finding under Rule 12.2(a) for an abuse of
discretion).
We have not yet had occasion to determine whether, to demonstrate good
cause, a defendant must also demonstrate that his insanity defense has merit,
although other circuits have so held. Citing such opinions, Gilmore contends
that he should have been required only to show that the defense had some
merit but that the district court held him to the more stringent standard
required to secure a jury instruction on insanity. Given our conclusion that
Gilmore’s explanation for the late filing alone supported the district court’s
determination, we need not reach these questions. In any event, our review of
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the record satisfies us that Gilmore has shown no abuse of discretion, even
under the “some merit” standard he contends should apply.
Finally, Gilmore argues that vacatur of his bank robbery conviction due
to the denial of his insanity defense requires that we vacate his supervised
release revocation. In light of our disposition of the former issue, the latter
necessarily fails.
AFFIRMED.
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