United States Court of Appeals, District of Columbia Circuit
October 23, 2017
from the United States District Court for the District of
Columbia (No. 1:12-cr-00023-1)
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.
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.
WILLIAMS SENIOR CIRCUIT JUDGE.
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.
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
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
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.
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
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.
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).
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 ...