United States v. Larry Gilliam

• Court: Court of Appeals for the Third Circuit
• Decided: February 8, 2022
• Docket: 21-1478
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________

No. 21-1478 _____________

UNITED STATES OF AMERICA

v.

LARRY GILLIAM,

Appellant

Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Criminal Action No. 3-17-cr-00258-001) District Judge: Honorable Robert D. Mariani ________________

Argued on November 17, 2021

Before: AMBRO, JORDAN and ROTH, Circuit Judges

(Opinion filed: February 8, 2022)

Frederick W. Ulrich (ARGUED) Quin M. Sorenson Office of Federal Public Defender 100 Chestnut Street Suite 306 Harrisburg, PA 17101

Counsel for Appellant Todd K. Hinkley (ARGUED) Office of United States Attorney 235 North Washington Avenue P.O. Box 309, Suite 311 Scranton, PA 18503

Counsel for Appellee

________________

OPINION * ________________

ROTH, Circuit Judge

Larry Gilliam pleaded guilty to one count of distribution and possession with

intent to distribute heroin and carfentanil, in violation of 21 U.S.C. § 841(a)(1). The

District Court sentenced him to fifty-seven months’ imprisonment.

Before pleading guilty, Gilliam moved to suppress some of the drugs confiscated

by the police. The District Court granted his motion. Nevertheless, as part of Gilliam’s

plea agreement, the government proposed that Gilliam’s sentencing range under the

United States Sentencing Guidelines would be based on all the drugs seized by police,

including the drugs that the District Court had suppressed before sentencing. The Pre-

Sentence Investigation Report based its recommended sentencing range on the total

quantity of drugs seized by police.

* This disposition is not an opinion of the full Court and under I.O.P. 5.7, does not amount to binding precedent.

2 At the sentencing hearing, Gilliam objected to the fact that his proposed

sentencing range involved all the drugs seized by police; according to Gilliam, his

sentencing range should have been calculated based on only the quantity of drugs legally

obtained by police. In other words, Gilliam wanted the District Court, when calculating

his sentencing range, not to consider the suppressed evidence. Relying on our decision in

United States v. Torres, 1 which held that a district court may consider evidence

suppressed for being obtained in violation of the Fourth Amendment when deciding the

appropriate sentencing range, 2 the District Court overruled Gilliam’s objection.

Gilliam appealed. 3 He invites us to adopt the United States Court of Appeals for

the Ninth Circuit’s decision in Verdugo v. United States. 4 There, where the district court

had found that the drugs were illegally seized for the purpose of enhancing the sentence,

the Ninth Circuit determined that the exclusionary rule should apply and that the illegally

obtained evidence should not have been considered when determining the defendant’s

sentence. 5 However, we refused to follow Verdugo in Torres because the facts in Torres

did not present a situation “where the record showed that evidence was illegally seized

for the purpose of enhancing the sentence.” 6

1 926 F.2d 321 (3d Cir. 1991). 2 See id. at 325. 3 The District Court had subject-matter jurisdiction under 18 U.S.C. § 3231. We have appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We review issues of law raised by a district court’s application of the United States Sentencing Guidelines de novo, and we review a district court’s factual findings for clear error. See, e.g., United States v. Williams, 917 F.2d 112, 113 (3d Cir. 1990). 4 402 F.2d 599 (9th Cir. 1968), cert. denied, 402 U.S. 961 (1971). 5 Id. at 612–13. 6 Torres, 926 F.2d at 325 (emphasis added). 3 Here too, we decline the invitation to follow Verdugo. As in Torres, Gilliam’s

case does not present a situation “where the record show[s] that evidence was illegally

seized for the purpose of enhancing [Gilliam’s] sentence.” 7 In fact, in overruling

Gilliam’s objection, the District Court implicitly made a factual finding that no evidence

in the record suggests that police illegally seized drugs for the purpose of enhancing

Gilliam’s sentence. The District Court specifically overruled Gilliam’s objection “on

th[e] basis” of Torres’s refusal to adopt Verdugo. 8 We agree.

For these reasons, we will affirm the District Court’s judgment of sentence.

7 See id. 8 App. 129. 4