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Mickens v. United States

Court of Appeals of Columbia District

March 10, 2016

Paul Mickens, Appellant,
v.
United States, Appellee.

Submitted February 2, 2016

On Appeal from the Superior Court of the District of Columbia Criminal Division

Appeal from the Superior Court of the District of Columbia (CF2-5709-14) (Hon. William M. Jackson, Trial Judge)

Mindy A. Daniels was on the brief for appellant.

Vincent H. Cohen, Jr., Acting United States Attorney at the time the brief was filed, and Elizabeth Trosman, Suzanne Grealy Curt, Jeffrey S. Nestler, and Daniel J. Lenerz, Assistant United States Attorneys, were on the brief for appellee.

Before Washington, Chief Judge, Thompson, Associate Judge, and Ferren, Senior Judge.

JUDGMENT

This case was submitted to the court on the transcript of record, the briefs filed, and without presentation of oral argument. On consideration whereof, and for the reasons set forth in the opinion filed this date, it is now hereby

ORDERED and ADJUDGED that the judgment of conviction is reversed, and the case is remanded to the original sentencing judge to determine whether appellant wishes to withdraw his plea and, if so, whether a motion to do so should be granted. If appellant elects not to pursue withdrawal, or he files a motion to withdraw the plea which the original judge denies, the case shall be transferred to another judge for resentencing after appropriate allocutions.

John M. Ferren, Senior Judge

This case presents the following questions: whether the government violated its plea agreement with appellant, and, if so, whether the case should be remanded for resentencing by a different judge, preceded, if appropriate, by permitting appellant to request withdrawal of his plea. Answering these questions substantially in the affirmative, we reverse and remand.

I.

On April 1, 2014, Metropolitan Police Department (MPD) officers watched appellant, Paul Mickens, making what they perceived to be several crack cocaine transactions outside of 355 Ridge Road, S.E. Minutes later, the officers attempted to arrest Mickens, who had retreated to an apartment at that address and taken off most of his clothes, leaving on only his T-shirt, underwear, and socks. Mickens got away from the police, however, and fled on foot until he was caught some two blocks away in another apartment, where he had unlawfully "barged through the front door." The officers walked Mickens back to the Ridge Road apartment to get his clothes-the same clothes he had been wearing while the officers watched him making the sales. In the pocket of the jacket, the police discovered six, small, ziplock baggies of crack cocaine. Mickens was charged with assaulting a police officer, [1] burglary, [2] four counts of distribution of PCP, [3] two counts of distribution of cocaine, [4] and one count of possession with intent to distribute (PWID).[5] Mickens entered a plea agreement with the government in which he would plead guilty to all the charges (with the burglary reduced to unlawful entry), [6] and the government would waive all enhancements, other than the OCDR (offenses committed during release) enhancement, and would allocute for a sentence within the District of Columbia Sentencing Commission's Voluntary Sentencing Guidelines[7]

During the sentencing proceeding, the government asked for the PWID sentence to run consecutively to the sentences on the other drug charges, contending that the PWID was not part of the same "event" encompassing the other charges.[8] Defense counsel objected that this request during allocution was a violation of the plea agreement because, under the agreed-upon Guidelines, all the non-violent drug charges arose from a "single event, " within the meaning of the Guidelines, and thus all sentences must run concurrently.[9] Defense counsel, accordingly, asked the court for ...


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