Appeals from the Superior Court of the District of Columbia (F-3442-02, F-3474-02, F-3475-02, F-3499-02, F-3457-02, F-3461-02). (Hon Susan R. Winfield, Trial Judge).
Before Terry and Ruiz, Associate Judges, and Ferren, Senior Judge.
The opinion of the court was delivered by: Terry, Associate Judge
Gregory Abbott appeals from the denial of his post-sentence motion to withdraw his guilty pleas in six related cases. On appeal he contends that the prosecutor's remarks at the sentencing hearing did not meet a standard of strict compliance with the plea agreement. He argues that "[w]hile not explicitly asking for incarceration greater than four years, the government implicitly suggested that it favored a greater sentence" when the prosecutor summarized the charges against him and recommended "a significant period of incarceration." We affirm the denial of appellant's motion because the government was entitled to explain its recommendation and because appellant has not shown manifest injustice.
On May 29, 2002, appellant was charged with seventeen counts of distributing cocaine, sixteen of them alleging distribution within a drug-free zone.*fn1 These charges arose from eight different drug sales in the Dupont Circle area of Northwest Washington between July 2001 and February 2002. Appellant, along with other persons who were later arrested, had been under surveillance by Metropolitan Police officers from the Third District for approximately nine months as part of an undercover drug investigation in Dupont Circle known as "Operation Gold Coast." On September 6, 2002, appellant pleaded guilty to seven counts of distributing cocaine. In exchange, the government agreed to dismiss all the remaining counts, to waive the drug-free school zone sentencing enhancements, and to limit its allocution to recommending a total of four years' incarceration for all the counts to which appellant pleaded guilty.
During the plea hearing,*fn2 the court asked the prosecutor if there was a cap on allocution, and the prosecutor replied, "Yes, four years." Later in the hearing, the court asked appellant, "Has anybody promised you what my sentence would be if you did plead guilty?" Appellant responded, "No, ma'am." The court then explained to all three defendants:
Every one of you has got a deal with the government that they're not going to ask for more than a certain amount of time. Please be very, very clear, I'm not in on that deal. If I think any one or all of you should get all thirty years - actually, the most you can get at the beginning is twenty-seven years, that's exactly what I'm going to give you. Do you understand that?
Appellant answered, "Yes, ma'am," as did each of his co-defendants.
At appellant's sentencing a few weeks later,*fn3 the prosecutor made the following statement:
Your Honor, to use defense counsel's language, the government was in a sense following Mr. Abbott around, and . . . they were watching Dupont Circle, as you know, for an extended period of time. We were also making purchases from others, and those others did not have seven separate cases, twelve separate cases, fourteen separate cases. This defendant really made a lot of sales. He is different from most of the defendants in the Gold Coast operation, if you will. And he has pled guilty to seven separate distribution counts in six separate felony cases. We capped our allocution for this defendant higher than all of the others, I believe, except for one, that are before Your Honor, with a four-year allocution cap.
The defendant has had the benefit of probation. . . .
[A]nd what was he doing on that probation? We know what he was doing. He was selling drugs in Dupont Circle, and he should receive a ...