November 3, 2011
D'ANGELO JOHNSON, APPELLANT,
UNITED STATES, APPELLEE.
Appeal from the Superior Court of the District of Columbia (CF1-24843-08) (Hon. Herbert B. Dixon, Jr., Trial Judge)
The opinion of the court was delivered by: Glickman, Associate Judge:
Submitted October 4, 2011
Before WASHINGTON, Chief Judge,GLICKMAN, Associate Judge, and TERRY, Senior Judge.
Pursuant to a plea agreement in which the government promised not to oppose concurrent prison sentences at the mid-point of the applicable sentencing guideline range, D'Angelo Johnson pleaded guilty to the crimes of second-degree murder and assault with a dangerous weapon ("ADW"). The trial court sentenced him to consecutive terms of imprisonment above the mid-point -- specifically, to 240 months for the homicide and eighteen months for the ADW. Johnson now appeals his sentence, contending that the government breached its plea agreement with him by implicitly asking for a longer sentence than the one it promised to support. We do not agree; the government fulfilled its promise, and thus appellant is not entitled to the re-sentencing he seeks.
The charges to which appellant pleaded guilty related to an incident on October 19, 2008, in which he shot at and killed one Karon Shannon and inadvertently wounded a bystander.*fn1 The plea agreement provided that the government reserved its right to allocute at appellant's sentencing but would not seek a term of imprisonment above "the mid point range" of the applicable sentencing guideline range or oppose concurrent sentences on the two counts of conviction.*fn2 Appellant and the government advised the court of these promises when appellant tendered his guilty pleas on April 17, 2009. At the time, appellant confirmed his understanding that the court was not bound by the government's agreement or the voluntary sentencing guidelines and could sentence him to up to forty years for second-degree murder and ten years for ADW.
Appellant's presentence report computed applicable sentencing guideline ranges of twelve to twenty-four years for second-degree murder (prison only) and one and one-half to five years for ADW (prison or "short split"*fn3 ). In a written submission prior to sentencing, appellant noted the government's agreement to "cap its allocution at the mid-point," i.e., eighteen years for the murder count, and not to oppose a concurrent sentence on the ADW count. Identifying a number of mitigating circumstances, however, appellant urged the court to sentence him to a period of incarceration "toward the low end of the [g]uideline range." In support of that request, appellant submitted, among other things, a report prepared by a developmental psychologist, who opined that twelve years in prison (the minimum under the guidelines) "would provide adequate time for [appellant] to address the problems arising from his background and experiences."*fn4
The government's memorandum in aid of sentencing confirmed its "promise . . . to cap its allocution on the homicide at the mid-point of [appellant's] guideline range, and not to oppose concurrent sentencing on the two counts." Specifically, the government asked the court to impose "a sentence at or near the mid-point of [appellant's] [g]uideline range, but in any event no higher than sixteen to eighteen years." In support of its recommendation, the government argued that despite the mitigating factors relied on by appellant, he had "prove[d] himself to be extremely dangerous." In particular, the government stated, appellant's shooting of Karon Shannon was clearly a "premeditated" act:
As he approached the decedent . . . that day, [appellant] had the revolver in his hand but up his sleeve. After decedent spoke to him, [appellant] merely extended his arm and shot [the decedent] at close range, and then shot him two more times as he ran away. He didn't need to pull the gun from his waistband -- he had it ready in his hand during the entire encounter.
At the sentencing hearing on October 23, 2009, the prosecutor reiterated the government's commitment to recommend a sentence at the mid-point of the guideline range and not oppose concurrent sentences. The prosecutor stated that he "was very proud" of the plea agreement and "want[ed] to emphasize . . . to the Court that we came up with a plea offer which was not the most that we thought we could get in this case, but it was what I thought was the appropriate sentence of 18 years." Elaborating on the reasons for that recommendation, the prosecutor acknowledged some of the factors in appellant's favor, such as his youth (appellant was under 18 years of age when he committed the offense); his troubled childhood and family situation; his early acceptance of responsibility; and his relatively clean criminal record. But countering such factors and calling for more than the minimum sentence within the guidelines, the prosecutor argued, was the seriousness of the crime. "[T]his was a first-degree murder," the prosecutor asserted: Appellant "walked up that block with the gun in his sleeve, planning all the time to murder Mr. Shannon."*fn5 Anticipating that appellant's counsel would ask for a sentence of only twelve years' imprisonment, the prosecutor urged the court "not to do that [because appellant] has been given all the appropriate breaks, in my opinion, and I think that [18 years] is the appropriate sentence."
Appellant's counsel allocuted for a lower sentence and disputed some of the prosecutor's comments -- especially the prosecutor's characterization of the shooting as a premeditated, first-degree murder.*fn6 Appellant's counsel concluded by asking the court to impose a sentence "towards the bottom end of the guidelines," as that would be "sufficient time to punish Mr. Johnson, to allow for rehabilitation and certainly to act as a deterrent." Appellant then addressed the court himself, expressing his sorrow for his actions. At no point during the proceeding did appellant or his counsel claim that the government had violated the plea agreement in any respect.
In announcing its sentence, the trial court said it had considered appellant's and the government's positions, along with the presentence report, correspondence from the victims' families, and other material it had received. In the end, the court stated, it did not consider a sentence at the bottom of the guidelines to be appropriate. For the offense of second-degree murder, the court sentenced appellant to 240 months in prison. For the ADW, it imposed a prison sentence of eighteen months. The court stated that the two prison sentences would run consecutively.
Appellant did not object to the sentence or seek to withdraw his guilty plea. He appealed, however, and he now claims that the government broke its promise to support his request for a sentence of imprisonment not exceeding the mid-point of the guideline range for second-degree murder. The government did so, appellant argues, by describing his offense as a first-degree, premeditated murder, stating that the government could have obtained a longer sentence than it had agreed to recommend, and urging the court not to impose a prison sentence of only twelve years' duration. To remedy the government's putative breach of the plea agreement, appellant asks us to vacate his sentence and remand for re-sentencing by a different judge.
"[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled."*fn7 The government is held to "a standard of strict compliance with its agreement."*fn8 The burden of showing that the government has broken its promise is on the defendant.*fn9 Ordinarily, in considering such a claim, this court construes the terms of the plea agreement de novo and defers to the trial court's factual findings regarding the alleged breach.*fn10 In this case, though, we have no relevant factual findings to consider because appellant never raised his claim of breach below. His claim is therefore subject to review only for plain error,*fn11 which means that he must show (1) "an error or defect -- some sort of deviation from a legal rule -- that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant"; (2) that the error is "clear or obvious, rather than subject to reasonable dispute"; and (3) that the error "affected the appellant's substantial rights" by influencing the sentence he received; in which case the appellate court has discretion to grant relief if it determines (4) that the error or defect "seriously affects the fairness, integrity or public reputation of judicial proceedings."*fn12
Our analysis of appellant's claim stops with the first of these requirements. As set forth above, the government promised in the plea agreement "not to oppose [appellant's] request that he be sentenced to a period of incarceration that does not exceed the mid point range of whatever guideline range is determined by the Court to apply in this case." The record confirms that both parties understood this to mean the government would seek a prison term of no more than eighteen years. The prosecutor explicitly, repeatedly, and unwaveringly advocated for just such a sentence. He clearly did not violate his commitment to do so by opposing appellant's request for a sentence not at the mid-point, but at the bottom, of the guideline range. "Agreeing to a maximum sentence cannot fairly preclude argument that, despite any defense appeal for a [lesser sentence], this cap should limit any leniency the court shows in punishing."*fn13
The prosecutor likewise did not break any promise by describing appellant's offense as, in reality, a first-degree premeditated murder, nor by stating that the "appropriate" sentence of eighteen years "was not the most that we thought we could get in this case." Even if these statements suggested that the recommended sentence of eighteen years in prison would be lenient -- the mandatory minimum sentence for first-degree murder is thirty years*fn14 -- the prosecutor's point, conveyed unmistakably, was not that the government had misgivings about an eighteen-year sentence, but rather that such a sentence was appropriate for appellant given the gravity of his offense (and that the shorter sentence sought by appellant was not appropriate). The prosecutor's description of the crime as a premeditated killing may have been open to dispute, but it was a fair interpretation of the facts to which appellant had agreed when he entered his plea. Having reserved its right of allocution, the government was entitled to offer that interpretation and discuss the serious nature of appellant's offense "to ensure that [he] received the maximum amount of incarceration the plea agreement would allow."*fn15 The agreement did not require the government to treat appellant "gently" or "minimize" his conduct.*fn16
In sum, we conclude that appellant has not shown that the government breached its plea agreement with him. The prosecutor "never stated or implied that the court should impose a harsher sentence than the one that the government had already agreed to recommend" and did in fact recommend without equivocation.*fn17 Accordingly, we affirm appellant's sentence and the judgment of conviction.