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Mickens v. United States

Court of Appeals of Columbia District

March 10, 2016


         Submitted February 2, 2016

          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.


         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.


         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 permission to confer with Mickens so that Mickens could reconsider his plea, and also asked that sentencing, in any event, be reassigned to another judge.

         Denying these requests, the trial court proceeded to sentence Mickens as scheduled. Counsel for Mickens suggested a total of less than four years of incarceration, whereas the prosecutor asked for a total of twelve years premised on a consecutive sentence for PWID. Ultimately, the trial court limited the sentences for the non-violent drug offenses to concurrent terms, and sentenced Mickens to a total of forty-eight months plus the 360 days (reserved as an enhancement under the plea agreement) required to be served consecutively for the OCDR offense. Mickens filed a timely appeal.



          When determining whether a plea agreement has been violated, we construe its terms de novo[10] and apply the following rule: " [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" [11]--failing which, the breach invites relief for the defense.

         In Santobello, for example, the Supreme Court remanded the case for an appropriate remedy even though the Court had " no reason to doubt" that the sentencing judge was not influenced by the prosecutor's recommendation in breach of the plea agreement.[12] In doing so, the Court left up to the state courts whether the ultimate remedy should be " resentenc[ing] by a different judge" or granting the defendant an " opportunity to withdraw his plea of guilty." [13]

         We tracked Santobello in White :[14] " If the government violates its bargain, it is irrelevant that the government's remarks may not have influenced the sentencing judge; the court must remand the case for resentencing or, in appropriate cases, to allow withdrawal of the defendant's plea." [15] We stressed that the government must strictly comply with ...

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