Submitted: April 17, 2019
from United States District Court for the Western District of
Missouri - Kansas City.
SMITH, Chief Judge, KELLY and KOBES, Circuit Judges.
Gilliam was convicted by a jury on two counts of being a
felon in possession of a firearm, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2), and sentenced to two
consecutive 90-month imprisonment terms. On appeal, he argues
four points: that he was charged with multiplicitous crimes
in error, that prejudicial hearsay was admitted at trial,
that his criminal history category was miscalculated, and
that a prior Missouri second-degree robbery conviction should
not have counted as a crime of violence when calculating his
Guidelines base offense level. Finding no error, we affirm
the district court.
October 17, 2014, near midnight, Harding "Pops"
Jeffrey called Gilliam to his residence. Jeffrey called
Gilliam because he was concerned for his own safety following
the angry departure-and likely return-of an intoxicated Joe
Scrivo. Carla Offield was also present at Jeffrey's
apartment. Scrivo returned and began arguing with Gilliam.
Gilliam drew a .40 caliber Glock Model 23 from his waistband
and fired three times. The third shot hit Scrivo in the leg.
Scrivo left, reported the incident to the police, and told
them that Gilliam shot him.
shooting Scrivo, Gilliam fled Jeffrey's residence but
left the gun there. Witness accounts differ, but apparently
Gilliam either threw the gun on the couch or handed it to
Jeffrey before he left. Afterward, Jeffrey picked up the
shell casings he could find and then took the gun to Donna
Bailey's apartment, known by acquaintances as "the
funny farm." Trial Tr., Vol I., at 60, United
States v. Gilliam, No. 4:15-cr-00354-BP (W.D. Mo. May
22, 2018), ECF No. 78. Police investigating the disturbance
at Jeffrey's residence found a .40 caliber shell casing
that had been fired from the gun.
November 6, 2014, a confidential informant relayed to Kansas
City, Missouri Police Detective Brandon Bray that Gilliam,
now with an outstanding arrest warrant, was staying at
Bailey's apartment. Detective Bray began watching the
apartment and confirmed Gilliam's presence. Detective
Bray knocked at the apartment door and spoke to Bailey.
Bailey acknowledged that Gilliam was inside the apartment and
that he had a gun. Detective Bray then instructed everyone to
leave. Gilliam refused. Because of Gilliam's refusal,
Detective Bray called for tactical backup and directed that a
downstairs apartment be evacuated for occupant safety. The
apartment's occupants reported to Detective Bray that
Gilliam had a gun. About 30 minutes later, Gilliam
voluntarily came out of the apartment and surrendered. He was
unarmed and coated with drywall and insulation.
consented to a search of her apartment. Once inside, law
enforcement observed a hole in the ceiling in one room, next
to the attic access. It appeared as though someone had fallen
through the ceiling. Officers observed a pile of clothes
coated in drywall dust beneath the hole. Bailey told officers
the ceiling had no hole before she left the apartment. In the
attic, officers found a handgun-the same handgun used to
shoot Scrivo-underneath some insulation.
his arrest, Gilliam admitted to shooting Scrivo at
Jeffrey's house but denied possessing the handgun after
he gave it to Jeffrey. Gilliam was charged with two counts of
being a felon in possession of a firearm for the shooting at
Jeffrey's house and for possessing the weapon again at
Bailey's apartment. While in prison awaiting trial,
Gilliam spoke to April Calvillo. The call was recorded.
Gilliam instructed Calvillo to write a letter to the
prosecutor explaining that she hid the gun in the attic at
Bailey's apartment two days before Gilliam's arrest.
Calvillo did as directed.
trial, Detective Bray testified on direct examination about
evacuating the neighbors below Bailey's apartment as a
precaution in case of gunfire in the building. Without a
question from the prosecution, Detective Bray volunteered
that he "was also advised by people inside that place
that [Gilliam] had a gun possibly on him." Trial Tr.,
Vol. II, at 14, United States v. Gilliam, No.
4:15-cr-354-BP (W.D. Mo. May 22, 2018), ECF No. 79. Gilliam
objected to the hearsay. The court overruled Gilliam's
objection. The court agreed with Gilliam that the response
was hearsay, but it determined the statement was
unintentional and not so prejudicial that an instruction to
the jury to disregard it was necessary.
conclusion of trial, the jury found Gilliam guilty of both
counts. At sentencing, after hearing objections, the district
court adopted the presentence investigation report (PSR) and
its recommended total offense level of 30. This calculation
was based in part on Gilliam having two prior