 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued October 23, 2017           Decided November 28, 2017

                       No. 13-3010

               UNITED STATES OF AMERICA,
                       APPELLEE

                             v.

                    KAMAL KING-GORE,
                       APPELLANT


        Appeal from the United States District Court
                for the District of Columbia
                   (No. 1:12-cr-00023-1)


    A. J. Kramer, Federal Public Defender, argued the cause
for appellant. With him on the briefs was Rosanna M.
Taormina, Assistant Federal Public Defender. Tony Axam Jr.,
Assistant Federal Public Defender, entered an appearance.

     Anne Y. Park, Assistant U.S. Attorney, argued the cause
for appellee. With her on the brief were Elizabeth Trosman,
and John P. Mannarino, Assistant U.S. Attorneys.

   Before: SRINIVASAN, Circuit Judge, and WILLIAMS and
RANDOLPH, Senior Circuit Judges.

   Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.
                                2

     WILLIAMS, Senior Circuit Judge: On September 19, 2012,
Kamal King-Gore pleaded guilty to distribution of more than
28 grams of cocaine in violation of 21 U.S.C. § 841(a),
(b)(1)(B)(iii). Shortly thereafter, he was sentenced to prison for
162 months and supervised release for 48 months. He appeals
that sentence.

     Among King-Gore’s challenges to the sentence, we need
discuss only one: the government’s breach of its agreement
with King-Gore not to use against him any incriminating
statements he provided during a confidential debriefing
session. At sentencing, the prosecutor breached the agreement
by relaying to the court information derived from the
debriefing, notably information portraying King-Gore as a
wholesale drug trafficker. The government acknowledges that
transmittal of this information breached the agreement, but
argues that the breach did not prejudice King-Gore. The district
court judge, it says, would have imposed the same sentence
absent the breach. Because we believe that there is at least a
reasonable likelihood that King-Gore would have received a
lower sentence in a proceeding untainted by the government’s
violation, we vacate the sentence and remand for resentencing.

                             * * *

     On June 10, 2010, King-Gore sold 60.6 grams of cocaine
base to a confidential informant in exchange for $2,350.
During the transaction, King-Gore offered to sell the informant
larger amounts of cocaine and to set up other deals, including
for PCP, though the record offers us no detail to quantify
“larger.” Twenty months later, he was arrested for the June 10
sale and was found to have, on his person and in his car and
home, an additional 11.8 grams in cocaine base, 30.3 grams in
cocaine hydrochloride, and over $1,500 in cash.
                               3

     This was not King-Gore’s first run-in with the law. He was
arrested on April 14, 2002, with $500 worth of ecstasy and
cocaine, and again a month later, with 12 grams of cocaine,
eight ecstasy tablets, and 66 grams of crack cocaine. For the
former, he was sentenced in Superior Court for the District of
Columbia to two years; for the latter, he was sentenced in
federal district court in West Virginia to 84 months in prison
(later reduced to 71 months). King-Gore appears to have been
in custody by virtue of these arrests and the resulting sentences
from May 2002 to March 2010. Three months after his release,
he committed the offense at issue.

     After being arrested and indicted for the present offense,
King-Gore met with the government in a voluntary, off-the-
record debriefing. The government promised that “no
statements made by or other information provided by” King-
Gore would “be used directly against [him] in any criminal
proceeding.” The agreement allowed certain exceptions, but
the parties agree that none of them is relevant.

    After King-Gore pleaded guilty, the district court judge
found that the career offender guideline provision applied and
determined that the proper guidelines range was 188 to 235
months. The court imposed a 162-month sentence with four
years of supervised release.

                             * * *

     Because King-Gore raises his objection to the
government’s disclosure for the first time on appeal, the plain
error standard of review applies. Fed. R. Crim. P. 52(b). It
requires that we find (1) an error, (2) that is clear or obvious,
(3) that affected the outcome of the district court proceedings,
and (4) that seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Puckett v. United States,
556 U.S. 129, 135 (2009).
                               4

    At sentencing, the government recommended a 188-month
sentence—the low point on the applicable guidelines range.
But its language in urging that sentence is what defendant
claims, and the government acknowledges, violated the
agreement governing the debriefing:

    The defendant wasn’t a retail level narcotics
    trafficker. We know by his own admission that he had
    previously bought up to a quarter kilo of cocaine. He
    had access to amounts even larger than that, and, in
    fact, he cooked the powder cocaine into crack cocaine.

    Now, I want to give Your Honor just a little bit of an
    indication of how much money we’re talking about
    here. A quarter kilo of powder cocaine in the D.C.
    area costs between $8,500 and $9,500. Well, once
    that’s cooked into crack cocaine and divided into retail
    level distribution amounts, it can [be] value[d] up to
    $35,000.

    The defendant was a wholesaler. Even the amounts
    sold to the [confidential informant] here, the 60 grams,
    that’s not a retail amount.

Sentencing Transcript 18:7-21. The government made a
similar point in its sentencing memorandum. It concedes here
that the source of the prosecutor’s “wholesaler” statement was
information King-Gore supplied during the debriefing.

     After hearing from both the government and the defendant,
the district court began its review of the 18 U.S.C. § 3553(a)
factors. The court started by discussing the seriousness of the
offense. The court concluded

    [T]he offense itself here is pretty serious because the
    quantities were large, and as the Government argues
    legitimately, Mr. King-Gore was a wholesale
                               5

    trafficker, not just a retail trafficker in drugs, which
    means that he was quite generous in trafficking with
    almost anybody, and, therefore, spreading the pain of
    drug use throughout the community. That means it’s
    a serious offense and suggests a higher sentence.

Sentencing Transcript 26:12-19.

     As is clear from our summary, King-Gore’s record—the
60-gram sale and the pattern of sales and possession—shows
him to have been dealing drugs, and in substantial quantities.
But whether one characterizes those activities as wholesale or
retail, the quarter kilo invoked by government counsel is a good
deal further from the retail end of the spectrum, and closer to
the wholesale end, than what is reflected in the record.

                            * * *

     Given the government’s concession that there was a clear
breach, we follow it in focusing on the question of prejudice.
But the context—an “error” of which the district court
presumably was not and could not have been aware—calls for
a brief discussion of the requirement that “the legal error must
be clear or obvious, rather than subject to reasonable dispute.”
Puckett, 556 U.S. at 135.

     Typically, a plain error (as determined by the appellate
court) will also have been obvious to the trial court; hence the
usual construction: “the district court plainly erred.” But to
use such a phrase where the district court had no ready way of
knowing of the error is a bit anomalous. Yet plain error is said
to have occurred in such cases, with some frequency, typically
because the obviousness of an error is evaluated at the time of
appellate review. Henderson v. United States, 568 U.S. 266,
269 (2013); United States v. Bostick, 791 F.3d 127, 149 (D.C.
Cir. 2015). In Henderson, the Supreme Court held that an
                                6

appellate court should find plain error even where a district
court’s ruling became obviously wrong only after the district
court had ruled, in light of developments that later clarified an
unsettled question of law. 568 U.S. at 273.

     Just as a district court judge should not be blamed for
failing to predict an about-face or similar twist in the law, see
Johnson v. United States, 520 U.S. 461, 467-68 (1997), the
district court judge here is not to be faulted for considering
information that she did not know had been improperly sourced
from a debriefing session. But that does not mean we cannot
also find the plain error standard satisfied. As the Supreme
Court recognized in Henderson, the “plain-error review is not
a grading system for trial judges”; it serves other “broader
purposes,” including “fairness and judicial integrity.” 568 U.S.
at 278.

     Although post-trial legal developments appear to be the
most usual context for finding an error to have been clear even
though the trial judge had no basis for discerning it, courts have
applied the same practice to government breaches of its
agreements. In United States v. Dawson, 587 F.3d 640 (4th Cir.
2009), the court observed explicitly that the issue had not been
“in any way brought to the attention of the district court,” id. at
644, but nonetheless found clear error. At least two other
decisions have found obvious errors in such breaches with no
apparent indication that the trial judge could have been aware
that the government had breached an agreement. United States
v. Puckett, 505 F.3d 377, 386 (5th Cir. 2007), aff’d, 556 U.S.
129 (2009); United States v. Fant, 974 F.2d 559, 564-65 (4th
Cir. 1992). We do the same here.

    We thus return to the question of whether King-Gore has
been prejudiced by the government’s breach. In the sentencing
context, the plain error standard “requires only that the
defendant ‘show a reasonable likelihood’ that the sentencing
                                7

court’s plain error ‘affected his sentence.’” United States v.
Bigley, 786 F.3d 11, 15 (D.C. Cir. 2015) (citations omitted).
Although the burden is on the defendant to show this
reasonable likelihood, the standard “is somewhat more relaxed
in the area of sentencing than it is for trial errors, since ‘a
resentencing is nowhere near as costly or as chancy an event as
a trial.’” In re Sealed Case, 573 F.3d 844, 852 (D.C. Cir. 2009);
see also United States v. Saro, 24 F.3d 283, 287-88 (D.C. Cir.
1994).

     The government directs us to evidence in the record—
other than material from the debriefing—that could have served
as the basis for the district court’s conclusion that King-Gore
was a “wholesale trafficker” deserving of a “higher sentence.”
Sentencing Transcript 26:11-19. Indeed, the district court
observed that the offense of conviction itself was “pretty
serious because the quantities were large,” a factor the
government says contributed to its finding that King-Gore was
a wholesaler. Id. at 26:12-14. The government emphasizes, as
it did at the sentencing, that King-Gore was also recorded
offering to sell the confidential informant larger quantities and
to set up other deals.

     But the district court’s use of the “wholesaler” moniker
appears traceable to the government’s language. The court said
that, “as the Government argues legitimately, Mr. King-Gore
was a wholesale trafficker, not just a retail trafficker in drugs.”
Id. at 26:14-16. And the government had supported its use of
the term by reference to an event that lacks any basis in the
record—a quarter-kilo transaction, which the government
dramatized by its account of the sale’s potential street value.
As we recognized above, the amounts sold to the confidential
informant can be characterized as more than retail; indeed the
prosecutor did so, saying that they were “not a retail amount.”
Id. at 18:19-21. But the quarter kilo alluded to without record
support would be four times greater, so that the weight of the
                                8

government’s wholesaler argument, and the court’s apparent
acceptance of it, seem to derive from the government’s breach
of its promise.

    At sentencing, the court also referred to King-Gore’s
criminal history and to the severe consequences of his illegal
dealing. These references may be taken two ways: either as
showing that there was plenty besides sheer volume to justify a
substantial sentence, or, especially when considered with the
court’s forceful phrasing of the points, as reflecting a likelihood
that the government’s breach moved the needle toward
severity. We recount them both.

     The district court described King-Gore’s criminal history
as a “critical” factor and referred to his drug dealing as his
“career lifestyle.” Id. at 5:9-15; 8:6-17. The judge highlighted
that, on the heels of more than seven years in jail for his two
prior convictions, King-Gore was right “back to it” dealing
drugs. Id. at 8:13-17. The judge stated that, while she had
opted not to apply the career offender guideline in other cases,
she was “much more troubled here because it seems to me
that . . . since [King-Gore] was in college, from then till now,
he’s either in jail or he’s drug dealing.” Id. at 7:23-8:5.

     Throughout the sentencing, the district court also
emphasized the dangerous consequences of King-Gore’s
conduct. The judge said that drug dealing “really is painful for
other people. It really visits pain on other people, adults, and
even more particularly children, and so it’s not a victimless
crime.” Id. at 27:15-18. The judge took note of the fact that
King-Gore was “from this community, he knows this
community, he knows the pain of drug dealing” to others. Id.
at 27:20-24. “To protect the public from further crimes,” the
district court judge found that a sentence higher than the
mandatory minimum was necessary. Id. at 27:25-28:2.
                                9

     The government asks us to find that the record therefore
“shows ample independent evidence” for the district court to
conclude that King-Gore “deserved a higher sentence.” We
agree that there was evidence justifying a substantial sentence
or a “higher” one than the 60 months King-Gore recommended.
But the “question isn’t whether defendant’s prison term would
have been drastically shorter—just whether it was reasonably
likely that the prison term would not have been as long had the
district court considered only permissible factors.” In re Sealed
Case, 573 F.3d at 852.

    We believe that there is at least a reasonable likelihood that
King-Gore received a higher sentence than he would have
absent the government’s breach.

     Having found the third factor satisfied, we turn our
attention to the fourth. As we have previously held, this prong
is ordinarily satisfied where the error, “if left uncorrected,
would result in a defendant serving a longer sentence.” Id. at
853. That is the case here. Because “[w]e cannot say that
keeping defendant in prison longer for improper reasons would
leave the fairness, integrity, and public reputation of judicial
proceedings unscathed,” id., we find the fourth prong
established.

     Thus we remand for resentencing. Having reviewed the
three factors outlined in United States v. Wolff, 127 F.3d 84, 88
(D.C. Cir. 1997), we remand to a different district court judge.
We recognize that as is typical in these cases, any judge
imposing a sentence after these proceedings will be aware of
information that he or she is required to disregard—a
challenging mental exercise at best. But we think that here it
would be unfair to put the initial sentencing judge in a position
where any decision might be mistakenly credited to her prior
involvement—either as failure to put the improperly sourced
statements out of her mind or bending over backwards to make
                               10

clear that she has done so. We reiterate “that this is in no sense
to question the fairness of the sentencing judge; the fault here
rests on the prosecutor, not on the sentencing judge.” United
States v. Mondragon, 228 F.3d 978, 981 (9th Cir. 2000)
(quoting Santobello v. New York, 404 U.S. 257, 262 (1971)).

    Although King-Gore asserts additional errors, they do not
require discussion in a published opinion.

                             * * *

    In accordance with this opinion, the sentence is vacated
and the case is remanded for resentencing.

                                                     So ordered.
