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United States v. King-Gore

United States Court of Appeals, District of Columbia Circuit

November 28, 2017

United States of America, Appellee
Kamal King-Gore, Appellant

          Argued October 23, 2017

         Appeal from the United States District Court for the District of Columbia (No. 1:12-cr-00023-1)

          A. J. Kramer, Federal Public Defender, argued the cause for appellant. With him on the briefs was Rosanna M. Taormina, Assistant Federal Public Defender. Tony Axam Jr., Assistant Federal Public Defender, entered an appearance.

          Anne Y. Park, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Elizabeth Trosman, and John P. Mannarino, Assistant U.S. Attorneys.

          Before: Srinivasan, Circuit Judge, and Williams and Randolph, Senior Circuit Judges.



         On September 19, 2012, Kamal King-Gore pleaded guilty to distribution of more than 28 grams of cocaine in violation of 21 U.S.C. § 841(a), (b)(1)(B)(iii). Shortly thereafter, he was sentenced to prison for 162 months and supervised release for 48 months. He appeals that sentence.

         Among King-Gore's challenges to the sentence, we need discuss only one: the government's breach of its agreement with King-Gore not to use against him any incriminating statements he provided during a confidential debriefing session. At sentencing, the prosecutor breached the agreement by relaying to the court information derived from the debriefing, notably information portraying King-Gore as a wholesale drug trafficker. The government acknowledges that transmittal of this information breached the agreement, but argues that the breach did not prejudice King-Gore. The district court judge, it says, would have imposed the same sentence absent the breach. Because we believe that there is at least a reasonable likelihood that King-Gore would have received a lower sentence in a proceeding untainted by the government's violation, we vacate the sentence and remand for resentencing.

         On June 10, 2010, King-Gore sold 60.6 grams of cocaine base to a confidential informant in exchange for $2, 350. During the transaction, King-Gore offered to sell the informant larger amounts of cocaine and to set up other deals, including for PCP, though the record offers us no detail to quantify "larger." Twenty months later, he was arrested for the June 10 sale and was found to have, on his person and in his car and home, an additional 11.8 grams in cocaine base, 30.3 grams in cocaine hydrochloride, and over $1, 500 in cash.

         This was not King-Gore's first run-in with the law. He was arrested on April 14, 2002, with $500 worth of ecstasy and cocaine, and again a month later, with 12 grams of cocaine, eight ecstasy tablets, and 66 grams of crack cocaine. For the former, he was sentenced in Superior Court for the District of Columbia to two years; for the latter, he was sentenced in federal district court in West Virginia to 84 months in prison (later reduced to 71 months). King-Gore appears to have been in custody by virtue of these arrests and the resulting sentences from May 2002 to March 2010. Three months after his release, he committed the offense at issue.

         After being arrested and indicted for the present offense, King-Gore met with the government in a voluntary, off-the-record debriefing. The government promised that "no statements made by or other information provided by" King-Gore would "be used directly against [him] in any criminal proceeding." The agreement allowed certain exceptions, but the parties agree that none of them is relevant.

         After King-Gore pleaded guilty, the district court judge found that the career offender guideline provision applied and determined that the proper guidelines range was 188 to 235 months. The court imposed a 162-month sentence with four years of supervised release.

         Because King-Gore raises his objection to the government's disclosure for the first time on appeal, the plain error standard of review applies. Fed. R. Crim. P. 52(b). It requires that we find (1) an error, (2) that is clear or obvious, (3) that affected the outcome of the district court proceedings, and (4) that seriously affects the fairness, integrity, or public reputation of judicial proceedings. Puckett v. United States, 556 U.S. 129, 135 (2009).

         At sentencing, the government recommended a 188-month sentence-the low point on the applicable guidelines range. But its language in urging that sentence is what defendant claims, and the government ...

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