United States v. Gregory Gillespie

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0624n.06
Case No. 16-6402
FILED
UNITED STATES COURT OF APPEALS Nov 09, 2017
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE EASTERN DISTRICT OF
GREGORY LAMAR GILLESPIE, ) TENNESSEE
)
Defendant-Appellant. )
BEFORE: CLAY, COOK, and WHITE, Circuit Judges.
CLAY, Circuit Judge. Gregory Gillespie appeals the district court’s calculation of the
Guidelines range under U.S.S.G. §§ 2K2.1(b)(6)(B) and 3A1.2(c)(1) and the ultimate sentence
imposed after Gillespie pleaded guilty to being a felon in possession of a firearm in violation of
18 U.S.C. §§ 922(g)(1) and 924(a)(2). For the reasons set forth below, we REVERSE the
district court’s ruling on the sentencing enhancements, VACATE Gillespie’s sentence, and
REMAND for resentencing using the appropriate Guidelines range.
BACKGROUND
On June 9, 2015, Chattanooga Police Officer Gary Williams received two calls about
drive-by shootings involving a white Ford Explorer. After locating the SUV, Officer Williams
turned on his blue overhead lights and attempted a traffic stop, but the SUV sped away. Officer
Case No. 16-6402, United States v. Gillespie
Williams pursued the SUV, which eventually came to a stop. Gillespie exited the car from the
right rear passenger side with a gun in his hand. Officer Williams struck Gillespie with his patrol
car because he feared for his life. The impact dislodged the gun from Gillespie’s right hand.
Gillespie fled through an alley, but another officer apprehended him.
Gillespie pleaded guilty to possessing a firearm as a felon, resulting in a Sentencing
Guidelines base offense level of 14. 18 U.S.C. § 922(g)(1); U.S.S.G. § 2K2.1(a)(6)(A). His
Presentence Investigation Report (“PSR”) added four points for possessing the firearm in
connection with another felony—Tennessee aggravated assault—and six points because a law
enforcement officer was the victim of the assault. U.S.S.G. §§ 2K2.1(b)(6)(B), 3A1.2(c)(1);
Tenn. Code Ann. § 39-13-102(a)(1)(A)(iii). Gillespie objected to both enhancements.
At the sentencing hearing, Officer Williams testified in support of the enhancements. He
recounted Gillespie exiting the Explorer: “He turned toward . . . me, he looks at me and makes
eye contact with me and he brandishes the weapon at me in a drawing motion and muzzle-
sweeping me and pointing the gun in my general direction.” Gillespie’s counsel cross-examined
Officer Williams with the dash-cam video slowed down to one-quarter speed and still frames
from the video. Officer Williams testified that Gillespie made eye contact with him at timestamp
21:52:14 in the video, although the dash cam did not capture it. On redirect examination, Officer
Williams testified that the two still frames and quarter-speed video did not change his
testimony—he was “certain” that Gillespie pointed the gun at him. The government contended
that Officer Williams’ testimony was not inconsistent with the dash-cam video, and that both
combine to produce sufficient evidence showing aggravated assault under Tennessee law.
Gillespie’s counsel argued that Gillespie did not point the gun at Officer Williams and there was
no aggravated assault.
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The district court said it had no reason to believe Officer Williams was untruthful about
what had occurred off-camera, so it denied Gillespie’s objections to the aggravated assault and
official victim enhancements. After a three-point decrease for accepting responsibility,
Gillespie’s total offense level was 21 and his criminal history category was IV, yielding a
Guidelines imprisonment range of 57–71 months.
The district court asked the parties to address the 18 U.S.C. § 3553(a) sentencing factors,
noting that it was contemplating an above-Guidelines sentence because of Gillespie’s criminal
history. Gillespie’s counsel highlighted the “less than ideal circumstances” in which Gillespie
grew up, plus the recent death of his grandmother (who raised him) and the birth of his twins.
Gillespie also spoke, requesting leniency and stating that “[he] really do[es] want to do better.”
The government asked the court, in determining the final sentence, to focus particularly on the
need to (1) provide just punishment, (2) protect the public, and (3) ensure an adequate deterrent.
See 18 U.S.C. § 3553(a)(2)(A)–(C).
The district court acknowledged Gillespie’s “truly tragic” upbringing, but it also
recounted his “remarkable” criminal record. Balancing the two, the district court concluded that
it must “impose a sentence that protects the public from further crimes” by Gillespie. The court
sentenced Gillespie to 120 months imprisonment followed by three years of supervised release.
Gillespie appeals from the district court’s decision and argues that the district court
improperly calculated his Guidelines range and abused its discretion by departing from the
Guidelines.
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ANALYSIS
I. Aggravated Assault of a Law Enforcement Officer and Sentencing Enhancements
A. Standard of Review
We review the district court's factual findings for clear error and give “due deference” to
the district court's determination that the U.S.S.G. § 2K2.1(b)(6) enhancement applies. United
States v. Taylor, 648 F.3d 417, 432 (6th Cir. 2011). A factual finding is clearly erroneous where,
“although there is evidence to support it, the reviewing court on the entire evidence is left with
the definite and firm conviction that a mistake has been committed.” United States v. Webb,
616 F.3d 605, 609 (6th Cir. 2010) (citing United States v. Perez, 871 F.2d 45, 48 (6th Cir.
1989)). “[T]o the extent that [Defendant] challenges the district court's factual conclusions
underlying the aggravated assault, the standard of review is clear error. To the extent that
[Defendant] challenges the district court's legal conclusions regarding the proper interpretation of
the elements of the Tennessee assault statute, the standard of review is de novo.” United States
v. Woodard, 337 F. App'x 534, 537 (6th Cir. 2009).
“‘Where there are two permissible views of the evidence,’ the district court does not
clearly err in accepting one interpretation over the other.” United States v. Hinojosa, 606 F.3d
875, 882 (6th Cir. 2010) (quoting United States v. Navarro-Camacho, 186 F.3d 701, 708 (6th
Cir. 1999)). “Findings of fact anchored in credibility assessments are generally not subject to
reversal upon appella[te] review.” United States v. Taylor, 956 F.2d 572, 576 (6th Cir. 1992).
However, while findings based on credibility determinations are entitled to deference, “the trial
judge may [not] insulate his findings from review by denominating them credibility
determinations, for factors other than demeanor and inflection go into the decision whether or
not to believe a witness.” Anderson v. Bessemer City, 470 U.S. 564, 575 (1985). “Documents or
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objective evidence may contradict the witness’ story; or the story itself may be so internally
inconsistent or implausible . . . that a reasonable factfinder would not credit it.” Id. Under such
circumstances, we may “find clear error even in a finding purportedly based on a credibility
determination.” Id. (citation omitted).
B. Analysis
Pursuant to U.S.S.G. § 2K2.1(b)(6)(B), if the defendant “used or possessed any firearm . .
. in connection with another felony offense,” the sentencing court must increase his offense level
by four. “To apply the enhancement, the sentencing court must find by a preponderance of the
evidence that: (1) the defendant committed ‘another felony offense’ and (2) used or possessed a
firearm in connection with that offense.” Woodard, 337 F. App’x at 538 (citing United States v.
Richardson, 510 F.3d 622, 626 (6th Cir. 2007)). Any federal, state, or local offense punishable
by more than one year of imprisonment qualifies as a “felony offense” regardless of whether a
charge was brought or conviction obtained. U.S.S.G. § 2K2.1, cmt. n.14. The sentencing court
must increase his offense level by six if the defendant assaulted a law enforcement officer. Id.
§ 3A1.2(c)(1).
Gillespie argues that he did not commit an aggravated assault of Officer Williams
because he did not point or brandish the gun at Officer Williams. He argues that the district
court’s conclusion that Gillespie did assault Officer Williams is clearly erroneous. He further
argues that the district court’s conclusion led to an incorrect Guidelines-range calculation.
Under Tennessee law, a person commits assault if the person “[i]ntentionally or
knowingly causes another to reasonably fear imminent bodily injury.” Tenn. Code Ann. § 39-
13-101(a)(2). A person commits aggravated assault if the person “[i]ntentionally or knowingly
commits an assault” and the assault “[i]nvolved the use or display of a deadly weapon.” Tenn.
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Code Ann. § 39-13-102(a)(1)(A)(iii). Aggravated assault is a felony punishable by more than
one year. Tenn. Code Ann. §§ 39-13-102(e)(1)(A)(ii), 40-35-112.
Officer Williams testified that when the SUV finally stopped, Gillespie opened the door
and “was stepping out of the vehicle, he was pulling a handgun out of his pocket or waistband
area.” Officer Williams testified, “[Gillespie] turns towards me, he looks at me and makes eye
contact with me and he brandishes the weapon at me in a drawing motion and muzzle-sweeping
me and pointing the gun in my general direction.” Officer Williams testified that he thought his
life was in danger, so he “let off the brake” and struck Gillespie with his car. Officer Williams
described the event as happening “extremely quickly.” However, Officer Williams was
“confident that when Mr. Gillespie exited the white Ford Explorer that he had a gun in his hand
and that he pointed it at” Officer Williams. He said that Gillespie “clearly” pointed the gun at
him in a sweeping motion and that he was “certain” he saw Gillespie point the firearm at him.
This encounter was captured by Officer Williams’ in-car camera. The relevant section of
the video is approximately three-seconds long, between timestamps 21:52:14 and 21:52:16. The
video submitted by the defense has been slowed down to one-quarter speed. The video shows a
white SUV being pulled over. As the SUV stops, at 21:52:14, the rear passenger side door opens
and Gillespie begins to exit the SUV. As the vehicle door is opening fully, Gillespie is out of the
camera’s shot. At 21:52:15, Gillespie appears in view of the camera. Gillespie’s pants are
belted below his waist, halfway to his knees. His direction of sight is perpendicular to the police
car and his body is bent as if he is preparing to run in the direction he is looking. Gillespie’s
right arm is bent and he is fumbling with a firearm about halfway to his armpit. In his other
hand, Gillespie is holding his cell phone. Gillespie is holding the gun upside down. It looks like
his right hand is wrapped around the trigger, frame, and barrel of the firearm. The barrel is
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pointed behind Gillespie, the grip is pointed up, and the slide is in his hand. Indeed, Officer
Williams confirmed that Gillespie was holding the gun “almost backward[]” and not in a way
someone would typically hold a gun in order to discharge it. At 21:52:16, the police car hits
Gillespie. Almost immediately upon impact, the gun leaves Gillespie’s hand and flies across the
police car and over the other side. Gillespie rolls up the car’s hood and windshield, and then off
the side of the car. At no point while Gillespie is in view of the camera does he point the gun at
Officer Williams or brandish it.
The parties dispute whether Gillespie pointed the firearm at Officer Williams. The
district court credited Officers Williams’ testimony, finding there was no reason to believe the
officer had been untruthful that the gun-pointing had occurred off camera. However, in order to
accept that testimony, one would have to believe that Gillespie was able to open the door to the
SUV, begin exiting the vehicle, pull a gun out of his pocket or waistband area, turn to Officer
Williams, make eye contact with Officer Williams, point the gun at Officer Williams, and then
bring the firearm back to his body, reverse the grip on the firearm, look perpendicular to the car
and begin to run in that direction, all in less than one second. We find this incredibly unlikely, if
not totally implausible.1 Even though findings of fact anchored in credibility assessments are
entitled to even more deference, the video completely undermines the Officer’s testimony and
the conclusion that Gillespie pointed the gun at him. Consequently, we find that it was clearly
erroneous for the district court to conclude that Gillespie pointed the firearm at Officer Williams.
Still, even if Gillespie did not actually point the gun at Officer Williams, the government
and the district court note that the language of the Tennessee statute only requires that the gun be
1
We believe this unlikely even with the district court’s suggestion that Mr. Gillespie could have flipped the
gun like the cowboys in old western movies.
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displayed to the officer, not that it be aimed at him. In State v. Carter, the Tennessee court found
that “use or display” in the Tennessee statute meant “to show; exhibit; make visible.”
681 S.W.2d 587, 589 (Tenn. Crim. App. 1984) (citation omitted) (finding the “open and visible
use of the blackjack was a display of the weapon”). Similarly, in State v. Hall, the Tennessee
court found that the defendant did not need to point the gun at the victim because “the statute
only requires that the gun be displayed to the victim.” No. M1998-00180-CCA-R3-CD, 2000
WL 298592, at *2 (Tenn. Crim. App. Mar. 23, 2000); see also State v. Brown, No. E2015-
00899-CCA-R3-CD, 2016 WL 3633474, at *8 (Tenn. Crim. App. June 29, 2016) (“[T]he fact
that the appellant had the handle of the gun protruding from his waistband was sufficient for the
jury to conclude that the assault involved the display of a deadly weapon.”). Consequently, the
government argues, even if Gillespie did not point the firearm at Officer Williams, his action of
grabbing the gun from the car, bringing it to his side, and making it visible to Officer Williams
would qualify as displaying a weapon under the statute.
However, as explained below, merely displaying a weapon is not enough to establish
aggravated assault in Tennessee, which requires proof that a person intentionally or knowingly
caused another to reasonably fear imminent bodily injury. A person “acts intentionally ‘with
respect to the nature of the conduct or to a result of the conduct when it is the person's conscious
objective or desire to engage in the conduct or cause the result.’” Hall, 2000 WL 298592, at *2
(quoting Tenn. Code Ann. § 39-11-302(a)). A person acts knowingly “with respect to a result of
the person's conduct when the person is aware that the conduct is reasonably certain to cause the
result.” Id. (quoting Tenn. Code Ann. § 39-11-302(b)). Gillespie argues that he “did not
intentionally or knowingly cause Officer Williams to be in fear.” Gillespie explains that he did
not point the gun at Officer Williams and he “would not be aware that merely running away with
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his pants halfway to his knees while holding a gun upside down and backwards would be
reasonably certain to put someone in fear of imminent bodily injury.”
Tennessee caselaw confirms that a person cannot be found to have intentionally or
knowingly caused another to reasonably fear imminent bodily injury by simply holding a gun in
their presence. Mere visible possession of a firearm without anything more does not amount to
aggravated assault. Rather, the display of a weapon plus something else, like a threat or
aggressive conduct toward a person, is required to satisfy the mens rea requirement of Tenn.
Code Ann. § 39-13-102(a)(1)(A)(iii). A contrary view would be especially problematic in an
open-carry state like Tennessee.
For instance, in Hall, the state court found the evidence sufficient to sustain the
defendant’s conviction for aggravated assault where he intentionally and knowingly displayed a
weapon to the victim and threatened her by saying “I should shoot you.” 2000 WL 298592, at
*2. In Brown, the state court found the evidence sufficient to support a conviction for aggravated
assault where the defendant got out of a car, approached two boys with a gun visible in his
waistband, and ordered them to show their pockets. 2016 WL 3633474, at *8. Both boys saw
the gun and did as they were told. Id. In State v. Woods, the defendant was convicted of
aggravated assault when he shot in the direction of a woman standing on her front porch
screaming, even though he intended to kill the woman’s husband who was running towards the
porch. No. E2001-01027-CCA-R3-CD, 2003 WL 21663682, at *4 (Tenn. Crim. App. July 16,
2003). The court found “there was sufficient evidence that [the defendant] also acted with the
reasonable certainty that [the victim] would be caused to fear imminent bodily injury” because
the defendant was able to see and hear the victim, but still fired shots in her direction anyway.
Id. See also State v. Waters, No. M2016-00522-CCA-R3-CD, 2017 WL 2361958, at *9 (Tenn.
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Crim. App. May 31, 2017), appeal denied (Sept. 21, 2017) (unpublished) (finding sufficient
proof to support a defendant's conviction for aggravated assault when “[t]he Defendant
intentionally moved towards the victims while carrying a large crowbar[,]” “raised the bar above
his head” as he got closer, and “repeatedly shouted the phrase: ‘I'll kill you’”); State v. Bryant,
No. 02C01-9707-CR-00286, 1999 WL 5633, at *8 (Tenn. Crim. App. Jan. 8, 1999)
(unpublished) (finding “evidence sufficient to support the conclusion that the Defendant acted
with the awareness that his conduct was reasonably certain to cause others . . . to fear imminent
bodily injury” when “the Defendant entered his wife's car with a loaded gun, pointed the gun at
his wife, and fired the gun while the car was beside the drive-thru window of a restaurant”).
Here, Gillespie was holding a gun in the presence of Officer Williams. However,
Gillespie did not point that gun toward Officer Williams. Gillespie also did not do anything like
what happened in the cases cited above. He did not shoot the gun, he did not verbally threaten
the Officer or make any demands of him, and he did not hold the gun in a threatening way.
Gillespie merely held the gun while he attempted to run away. He was bailing from the scene
and taking his possessions with him—gun in one hand, phone in the other. While it is
understandable that Officer Williams, in the uncertainty of the moment, may have been fearful at
the sight of Gillespie fleeing with a gun in his hand, nothing in the circumstances suggests that
Gillespie intentionally or knowingly caused Officer Williams to reasonably fear imminent bodily
injury by holding the gun upside down as he ran.
In sum, the district court’s finding that Gillespie pointed a gun at Officer Williams was
clearly erroneous, and the district court erred when it found that Gillespie’s action in carrying a
firearm with him as he attempted to flee from police amounted to aggravated assault under
Tennessee law.
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Both the government and Gillespie agreed that if there was no aggravated assault, the
official victim enhancement could not apply. Consequently, we find that the district court
improperly calculated Gillespie’s Guidelines range by adding four points for possessing the
firearm in connection with another felony offense—Tennessee aggravated assault—and six
points for an official victim enhancement.
II. Above Guidelines Sentence
A. Standard of Review
This Court reviews sentencing decisions deferentially, for abuse of discretion. Gall v.
United States, 552 U.S. 38, 41 (2007). “This review has two components: procedural
reasonableness and substantive reasonableness.” United States v. Solano-Rosales, 781 F.3d 345,
351 (6th Cir. 2015). A district court commits a procedural error by “failing to calculate (or
improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to
consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to
adequately explain the chosen sentence. . . .” Gall, 552 U.S. at 51.
To be substantively reasonable, the length of the sentence “must be proportionate to the
seriousness of the circumstances of the offense and offender, and sufficient but not greater than
necessary, to comply with the purposes of § 3553(a).” United States v. Vowell, 516 F.3d 503,
512 (6th Cir. 2008) (citation and internal quotations omitted). “A sentence may be considered
substantively unreasonable when the district court selects a sentence arbitrarily, bases the
sentence on impermissible factors, fails to consider relevant factors, or gives an unreasonable
amount of weight to any pertinent factor.” United States v. Conatser, 514 F.3d 508, 520 (6th
Cir. 2008) (citing United States v. Webb, 403 F.3d 373, 385 (6th Cir. 2005)). “A properly
calculated advisory guidelines range represents the starting point for substantive-reasonableness
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review because it is one of the § 3553(a) factors and because the guidelines purport to take into
consideration most, if not all, of the other § 3553(a) factors.” Id. (citing Gall, 552 U.S. at 49)
“In reviewing the reasonableness of a sentence outside the Guidelines range, appellate courts
may therefore take the degree of variance into account and consider the extent of a deviation
from the Guidelines.” Gall, 552 U.S. at 47.
“[W]here a district court makes a mistake in calculating a guidelines range for purposes
of determining a sentence under section 3553(a), we are required to remand for resentencing
unless we are certain that any such error was harmless.” United States v. Young, 847 F.3d 328,
370 (6th Cir. 2017) (quoting United States v. Vicol, 514 F.3d 559, 561 (6th Cir. 2008)).
“A sentencing error is harmless if we are certain that the error ‘did not affect the district court's
selection of the sentence imposed.’” Id. (quoting United States v. Hazelwood, 398 F.3d 792, 801
(6th Cir. 2005)).
B. Analysis
At sentencing, the district court noted that the Guidelines range is advisory, that
Gillespie’s story was “tragic,” but that he had a “remarkable” criminal history and that a higher
sentence than the Guidelines recommended was necessary in order to “protect[] the public from
further crimes of the defendant.” Consequently, the district court imposed a 120-month
sentence—the statutory maximum for being a felon in possession of a firearm.
Gillespie argues that the district court inadequately explained the ten-year sentence and
neglected to consider factors, including the violent circumstances of his upbringing and his
mental illness. The government argues that the district court properly exercised its discretion
when it concluded a ten-year sentence was necessary in order to protect the public from
Gillespie. Additionally, with regard to any error in the district court’s application of the
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sentencing enhancements, the government argues the error was harmless because the court
concluded that an above-Guidelines sentence was necessary. Gillespie replies that the district
court’s erroneous conclusion that Gillespie pointed a gun at Officer Williams was not harmless
because it affected the district court’s analysis under the 18 U.S.C. § 3553(a) sentencing factors
by making the “nature and circumstances of the offense” factor look far more serious.
As discussed above, the district court erroneously found that Gillespie committed
aggravated assault against Officer Williams. Thus, the offense level should not have been
increased by 10 points and his Guidelines imprisonment range should not have been 57–71
months. Gillespie argues that his correct Guidelines range should be 21–27 months. Because
the district court did not start with a properly calculated Guidelines range and also based its
decision on a clearly erroneous fact, we find that the sentence was procedurally unreasonable.
We do not find this mistake in calculating the Guidelines range harmless. The district court’s
finding that Gillespie assaulted the police officer impacted the Guidelines range. On top of that,
it likely influenced the district court’s analysis under 18 U.SC. §3553(a), especially where the
district court was to consider “the nature and circumstances of the offense and the history and
characteristics of the defendant.” The circumstances of the offense certainly seem more serious
after finding that Gillespie is the kind of person who points a gun at a police officer. We cannot
say that the error did not affect the district court’s selection of the sentence imposed. Because
the district court abused its discretion when it sentenced Gillespie, we vacate his sentence and
remand the case for resentencing.
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CONCLUSION
For the foregoing reasons, we REVERSE the district court’s ruling on the sentencing
enhancements, VACATE Gillespie’s sentence, and REMAND for resentencing in light of the
properly scored guideline range.
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COOK, Circuit Judge, dissenting. I respectfully dissent. I would affirm the district
court’s ruling on the sentencing enhancements and the 120-month sentence.
I do not think the district court clearly erred in concluding that Gillespie pointed his gun
at Officer Williams. Judge Collier deemed the Officer’s testimony credible, finding no reason to
doubt his explanation that the gun-pointing took place off-camera. And Officer Williams had
ample opportunity—direct, cross, redirect, and recross examinations—to walk back his account,
but he remained steadfast even after watching the dash-cam video at various speeds and
reviewing the still frames.
I disagree that the dash-cam video “completely undermines the Officer’s testimony.”
(Maj. Op. at 7.) Rather, as in United States v. Braswell, “the video simply does not show the
events in question . . . . Therefore the video neither confirms nor disproves the government’s
argument” about the gun-pointing. No. 16-6092, 2017 WL 3588305, at *3 (6th Cir. Aug. 21,
2017). The Braswell panel did not overturn the lower court’s credibility determination, and
neither should we in the instant case. Id. at *4; see also United States v. Navarro-Camacho, 186
F.3d 701, 707 (6th Cir. 1999) (“[T]he simple fact that we have been able to evaluate [a
videotape] on direct review does not change the fact that we review the district court’s findings
of fact for clear error. . . . Where, as here, factual findings rest in large part on credibility
determinations, we afford district courts even greater deference.”).
The majority claims that, in order to accept Officer Williams’s testimony, we must
believe a laundry list of things about what Gillespie did upon exiting the car. (Maj. Op. at 7.)
But these actions need not occur seriatim. Surely you can open a car door while simultaneously
holding something else in your free hand and making eye contact with someone. It seems at
least plausible to me that Gillespie, while off-camera, exited the Ford Explorer pointing the gun
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at Officer Williams. See Anderson v. Bessemer City, 470 U.S. 564, 573–74 (1985) (“If the
district court’s account of the evidence is plausible in light of the record viewed in its entirety,
the court of appeals may not reverse it even though convinced that had it been sitting as the trier
of fact, it would have weighed the evidence differently.”).
Even if the gun-pointing finding was clearly erroneous, Gillespie nonetheless displayed
the firearm to Officer Williams. And that is what Tenn. Code Ann. § 39-13-102(a)(1)(A)(iii)
requires. Gillespie may not have wanted Officer Williams to fear for his physical safety. But in
Tennessee, one “can act knowingly irrespective of his or her desire that the conduct or result will
occur.” State v. Gray, 960 S.W.2d 598, 604 (Tenn. Crim. App. 1997).
I disagree with the majority’s conclusion that “nothing in the circumstances suggests that
Gillespie” knowingly caused Officer Williams to reasonably fear imminent bodily injury when he
displayed the gun. (Maj. Op. at 10.) Here are the circumstances. Gillespie was riding in a Ford
Explorer involved in two drive-by shootings earlier that day. The driver sped away when the
police attempted a traffic stop, leading to a high-speed nighttime chase through residential areas
of East Chattanooga. The Explorer eventually came to an abrupt stop within feet of the police
cruiser. Gillespie quickly opened the right rear passenger door of the car—the side closest to
Officer Williams—and bolted out with a gun in his right hand—the hand closest to Officer
Williams. Gillespie could have left his gun in the Explorer, but he didn’t. He could have thrown
the gun out the car window, but he didn’t. The majority describes this as a man “taking his
possessions with him,” as if Gillespie was getting out of the car holding a bag of groceries.
(Maj. Op. at 10.) Frankly, under these circumstances, I see no reason for Gillespie to have
carried his gun with him other than to threaten with it or use it.
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Turning to the district court’s ultimate sentencing decision, I would affirm because I
discern no abuse of discretion. I view Gillespie’s sentence as procedurally reasonable; the
district court evaluated both parties’ arguments, considered the 18 U.S.C. § 3553(a) factors, and
sufficiently articulated its reasons for imposing a 120-month sentence. See United States v.
Bolds, 511 F.3d 568, 581 (6th Cir. 2007). And to me the sentence passes muster as substantively
reasonable, with the record including ample evidence validating the district court’s decision. Per
his Presentence Investigation Report, Gillespie’s criminal history dates to 2003. In 2008 alone,
Gillespie was charged with aggravated assault (twice), disorderly conduct, driving without a
license, and attempted first degree murder. Given that these were juvenile adjudications,
however, Gillespie did not receive any points that would impact his criminal history
categorization. His adult criminal activities are similarly serious and include carrying weapons
on school property, threatening to burn down and shoot up multiple houses, using a pistol during
a domestic assault, and evading arrest.2 What’s more, the district court observed that Gillespie,
during his allocution, failed to demonstrate “any real appreciation of the danger that he posed,
the harm that he has caused, and . . . a way of life that is just replete with violence.”
For these reasons, I respectfully dissent.
2
And that says nothing of the charges against Gillespie that were dismissed for one reason or another—disorderly
conduct, aggravated assault, theft, and domestic assault, to name several.
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