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 ...