                              District of Columbia
                               Court of Appeals
No. 15-CF-0051
                                                                       MAR 10 2016
PAUL MICKENS,
                                          Appellant,

      v.                                               CF2-5709-14

UNITED STATES,
                                          Appellee.


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


     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.

                                             For the Court:




Dated: March 10, 2016.

Opinion by Senior Judge John M. Ferren.
Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.

             DISTRICT OF COLUMBIA COURT OF APPEALS

                                 No. 15-CF-0051                           3/10/16

                           PAUL MICKENS, APPELLANT,

                                         v.

                            UNITED STATES, APPELLEE.

                            Appeal from the Superior
                         Court of the District of Columbia
                                  (CF2-5709-14)

                      (Hon. William M. Jackson, Trial Judge)

(Submitted February 2, 2016                              Decided March 10, 2016)

      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.


      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
                                           2

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

      1
          See D.C. Code § 22-405 (b) (2012 Repl.).
      2
          See id. at § 22-801 (a).
      3
          See id. at § 48-904.01 (a)(1).
                                         3

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

      4
          See id.
      5
          See id.
      6
          See id. at § 22-3302.
      7
          See D.C. Voluntary Sentencing Guidelines (June 30, 2014).
      8
        Under the Voluntary Sentencing Guidelines § 6.3, for multiple non-violent
offenses that occur during more than one event, the trial court has discretion to
impose sentences that are either consecutive or concurrent. For multiple non-
violent offenses that occur during a ―single event,‖ however, § 6.2, of the
Guidelines provides that the sentences ―must be imposed concurrently.‖
                                        4

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.




      9
          See supra note 8.
                                          5


                                          II.


                                          A.


      When determining whether a plea agreement has been violated, we construe

its terms de novo10 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


      10
           Johnson v. United States, 30 A.3d 783, 787 (D.C. 2011).
      11
           Id. (quoting Santobello v. New York, 404 U.S. 257, 262 (1971)).
      12
           Santobello, 404 U.S. at 262.
      13
           Id. at 262-63.
                                            6


      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 its plea agreement, and that any ambiguity should be

construed against the government.16


                                           B.


      Alleging the government‘s breach of the plea agreement, Mickens maintains

that the trial court should have granted him a continuance in order to reconsider his

plea, and, absent a request to withdraw it, should have transferred his case for

resentencing by a different judge. He argues, more specifically, that because his

distribution and PWID charges were all part of a ―single event,‖ the government

breached the plea agreement by allocuting for consecutive sentences totaling

twelve years, in conflict with the Guidelines requirement of concurrent sentences

for non-violent crimes when all the charges arise from a ―single event.‖

      14
           White v. United States, 425 A.2d 616, 618 (D.C. 1980).
      15
           Id. (citing Santobello, 404 U.S. at 262).
      16
           Id.
                                          7


      In response, the government argues that it did not breach the plea agreement.

Moreover, even if there was a breach, says the government, Mickens suffered no

harm because the trial court rejected the government‘s request for consecutive

sentences and sentenced Mickens concurrently on the convictions for non-violent

crimes.17



      The government‘s first response—no breach—is premised on its contention

that Mickens‘s PWID offense was an event altogether separate from the event

during which the other offenses occurred, and thus was eligible for consecutive

sentencing.18 We cannot agree. Offenses are part of a ―single event‖ if ―they were

committed at the same time or place, or have the same nucleus of facts.‖ 19 It is

true that the police officers, after observing several crack cocaine transactions


      17
          In addition to responding to Mickens‘s arguments, the government raises
its own issue on appeal, claiming an ―illegal sentence‖ in the written commitment
order because that sentence conflicts with the court‘s oral pronouncement, which
the government says should prevail under our case law. The government asks us to
make the requested correction. This argument is raised for the first time on appeal.
Because an illegal sentence can be corrected ―at any time,‖ Super. Ct. Civ. R. 35 &
36, and requires ascertainment of facts, we leave it to the government to seek relief
in the trial court, if needed. In light of our disposition vacating the sentences,
however, it appears that the government‘s concern is moot.
      18
            See supra note 8.
      19
            See Voluntary Sentencing Guidelines § 7.10.
                                          8

outside 355 Ridge Road, S.E., and interacting with Mickens inside an apartment

there, did not discover the crack cocaine relied on for the PWID charge until they

had arrested Mickens over two blocks away, and returned to the Ridge Road

address, where they found the cocaine in the jacket that Mickens had abandoned

there. Arguably, perhaps, the PWID charge did not satisfy the ―same time and

place‖ requirement for a ―single event.‖20 But we are easily convinced that, based

initially on the free flow of relevant events during a very short time period, the

PWID charge assuredly flowed from the ―same nucleus of facts‖21 from which the

other drug charges arose.


      20
          See supra note 8. Under § 7.10 of the Guidelines, ―offenses are part of a
single event if they were committed at the same time or place, or have the same
nucleus of facts. Offenses are part of multiple events if they were committed at
different times and places or have a different nucleus of facts.‖ The Guidelines
offer the following examples:

                     One event: Defendant robs a convenience store at
              gunpoint. As he is leaving, but still inside the store, he
              engages in a gun battle with a police officer who has the
              store under surveillance.

                     Two events: Defendant robs a convenience store
              at gunpoint. He speeds away from the scene and is
              stopped for a traffic violation. He shoots at the police
              officer.

Id. at § 7.10. These examples reflect extremes that are not helpful here.
      21
           See supra note 20.
                                         9


      Of particular significance, there was an evidentiary nexus here; the officers‘

observations of the cocaine transactions outside the Ridge Road address were

relevant to proving that the crack cocaine found later in Mickens‘s jacket was

packaged for distribution. The government, in fact, effectively acknowledged this

nexus when it earlier opposed Mickens‘s motion to sever trial of the PWID charge

from the others. The government argued then that all ―the drug offenses are part of

the same common scheme and are connected in time and place.‖ The government

cannot convincingly take both positions, first arguing that all charges comprise the

same event, in order to have them tried together, and then, after obtaining a plea

agreement, taking a contrary position at sentencing. If there is a consistency here,

based on disparate legal rules, the government has not persuasively explained it.22

In sum, all offenses at issue here arose from a single event, as understood from the




      22
          The government argues that ―whether the offenses were committed at the
‗same‘ time and place,‖ pursuant to § 7.10 of the Guidelines, see supra note 20, ―is
not the same question addressed by the government‘s opposition‖ to Mickens‘s
motion to sever, which is whether, under Super. Ct. Crim. R. 8 (b), ―the offenses
were ‗so closely connected in time and place that there is necessarily a substantial
overlap in proof of the various crimes and it would be difficult to separate proof of
one from the other.‘‖ This distinction is too subtle to have meaning here,
especially when, as noted above, proof of the cocaine transactions outside the
Ridge Road address would help the government prove that the cocaine retrieved
later from Mickens‘s jacket was likely packaged for distribution.
                                          10

applicable Guidelines. But even if the situation were ambiguous, all ambiguity

would cut in favor of Mickens‘s single event contention.23



      Finally, the government proffers cases from several federal circuits

announcing, in dicta, a ―mitigating doctrine‖24 which each court finds inapplicable

in the case before it, but available as a harmless error exception to Santobello in

other cases where the breach of a plea agreement is merely ―technical‖ or

―immaterial,‖ ―minor‖ or ―insubstantial,‖25 commonly making the breach easily


      23
          See White v. United States, 425 A.2d 616, 618 (D.C. 1980) (―The court
will construe any ambiguity against the government.‖).
      24
           United States v. Purser, 747 F.3d 284, 292 (5th Cir. 2014) (―Most of our
sister circuits have . . . rejected the use of a harmlessness inquiry in situations of a
plea agreement breach where the error has been preserved. We do note that many
of these circuits have adopted a mitigating doctrine that stands in some contrast to
the no-harmlessness doctrine. Under this mitigating doctrine, there is no
harmlessness inquiry only in cases where there is a material breach of the plea
agreement. In other words, minor breaches do not count.‖) (emphasis added).
      25
           United States v. Diaz-Jimenez, 622 F.3d 692, 696 (7th Cir. 2010) (―no
relief . . . when the breach of the plea agreement is, in the court‘s view,
insubstantial, immaterial, technical – in short, minor – or cured on the spot and . . .
undeserving of substantial relief such as resentencing or withdrawal of a guilty
plea‖) (emphasis added); United States v. Vaval, 404 F.3d 144, 155-56 (2d Cir.
2005) (―There is also a very limited exception to the need for a remedy for a plea
agreement breach by the government where the violation is so minor that it does
not cause the defendant to suffer any meaningful detriment‖; in another case, no
remedy was required for a ―technical violation‖ of a plea agreement because ―the
sentence imposed ‗did comport with the reasonable understanding and expectations
of the defendant as to the sentence for which he had bargained.‘‖); United States v.
                                                               (continued . . .)
                                               11

―curable.‖26 Even if we were to recognize such exceptions in this jurisdiction,

however, we do not do so here, because the facts before us do not reflect a de

minimis violation.

                                               C.


       Having concluded that the government violated the plea agreement, we turn

to the question of remedy.          The government argues that Mickens ―received

precisely what he had asked for at sentencing—a concurrent sentence on the PWID

cocaine     charge.‖    Therefore,      says        the   government,   the   prosecutor‘s

recommendation (in the sentencing judge‘s words) did not ―control this Court‘s

reasoning.‖ In short: no prejudice, no remedy.




_____________________________________
(. . . continued)
Clark, 55 F.3d 9, 14 (1st Cir. 1995) (―[M]inor deviations from the plea agreement
will not mandate resentencing. This is because minor deviations do not affect the
consideration due the defendant under the plea agreement.‖); see Purser, supra
note 24.
       26
          Diaz-Jimenez, 622 F.3d at 696 (proposing hypothetical that court could
excuse as immaterial and curable, see supra note 25, in which prosecutor‘s
mistaken breach is pointed out, and prosecutor responds, ―I misremembered the
plea agreement. I agree unreservedly with the recommendation in the plea
agreement. . . . That sentence would in our opinion be sufficient; we do not think
there is any need for a longer sentence.‖); Vaval, 404 F.3d at 155 (no relief from
breach of plea agreement when breach ―has been previously cured by specific
performance[,]‖ for example, ―at a post-sentencing Rule 35 hearing‖).
                                         12

      The government‘s first statement, however, is only partly true; Mickens had

asked for concurrent sentences, but also for a total sentence lower than he received.

The second statement, moreover, is irrelevant. In Santobello, the Supreme Court

had ―no reason to doubt‖ that ―the prosecutor‘s recommendation did not influence‖

the sentencing judge, but the Court concluded nonetheless ―that the interests of

justice and appropriate recognition of the duties of the prosecution in relation to

promises made in the negotiation of pleas of guilty will be best served by

remanding the case.‖27 Similarly, as we said in White: if ―the government violated

its plea agreement[,] appellant‘s sentence cannot stand.‖28 We must remedy the

breach by remanding the case either to permit ―resentencing by a different judge

or, when appropriate, [to] allow[] the defendant to withdraw the plea.‖29



      At a minimum, therefore, we must remand the case for resentencing by a

different judge who becomes fully apprised of the plea agreement but is confronted

only by allocution in compliance with it. To eliminate any possible prejudice,

Mickens should have the opportunity to seek a sentence from a judge who has not

been subjected to the government‘s argument for a consecutive sentence for PWID

      27
           Santobello, 404 U.S. at 262; accord White, 425 A.2d at 618.
      28
           Id.
      29
           Id. at 620.
                                           13

The question then becomes whether, before resentencing, Mickens should also

receive the opportunity he requested to consider, and perhaps elect, withdrawal of

his plea.



       The government argues, in a footnote, that even if remand is required,

Mickens should not be given the option to withdraw his guilty plea because he

―abandoned that request below‖ when, after the court made clear that it was not

bound by the government‘s sentencing recommendation, defense counsel ―stated

that he was prepared to go forward with sentencing.‖             The government

misconstrues the record. It is clear from the colloquy that defense counsel did not

abandon his request to consider withdrawal of the plea. Rather, in light of the

court‘s refusal to grant Mickens‘s request to transfer the case for sentencing by

another judge, counsel was satisfied that he had adequately preserved the record on

the plea withdrawal issue for appeal and agreed to move forward with sentencing.30


      30
            The following is a transcription of the colloquy:

      THE COURT: I‘m not moving it to a different Judge. So –

      MR. MCDONALD: In light of that, Your Honor, what I‘m asking the Court
      to do is allow me to speak to Mr. Mickens to consider whether or not he
      should withdraw his plea based upon the Government‘s recommendation.

      THE COURT: The Government‘s recommendation doesn‘t control this
      Court‘s sentencing. I‘m the Sentencing Judge.
                                                    (continued . . .)
                                             14

We, too, are satisfied that the issue is preserved. Whether Mickens should be

given the opportunity to elect to withdraw his plea, however, should be answered,

in the first instance, by the trial court, not this court.




_____________________________________
(. . . continued)
         MR. MCDONALD: I understand that, Your Honor.

       THE COURT: Uh-huh. This is not, you know –

       MR. MCDONALD: But he has a right to the benefit of this plea agreement,
       as well.

       THE COURT: He very well may. But the Government doesn‘t control
       what this Court does for sentencing. The Government asked for 12 years on
       the drug case, essentially.

       MR. MCDONALD: I, I, I –

       THE COURT: Multiple drug case.

       MR. MCDONALD: I understand that.
       THE COURT: People got shot and don‘t get 12 years in this jurisdiction.
       So.

       MR. MCDONALD: I understand that, Your Honor. I think I sufficiently
       made my record. I‘m prepared to go to sentencing.

       THE COURT: All right.

       MR. MCDONALD: Your Honor, I still maintain my objection, though.

       THE COURT: All right. Noted.
                                         15

      It is not entirely clear whether Mickens is asking for the original sentencing

judge or the successor judge to decide the withdrawal issue. Mickens, however,

has offered no objection to the original judge‘s making the decision. Thus, for

reasons of judicial economy, we conclude that—absent a taint of some kind—the

original judge should do so, as the judicial officer most familiar with the case when

received upon remand.



      Accordingly, we reverse the judgment of conviction and remand the case to

the original sentencing judge to determine whether Mickens wishes to withdraw

his plea and, if so, whether a motion to do so should be granted. If Mickens elects

not to pursue withdrawal, or 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.



                                                    So ordered.
