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D.C. Circuit Vacates Sentence Because Government Breached Plea Agreement by Providing Defendant’s Confidential Statements to Sentencing Court

by Dale Chappell

The government’s use of incriminating statements made by a defendant at a confidential debriefing breached the plea agreement and constituted “plain error” when the government disclosed that information to the sentencing court to push for a longer sentence, the U.S. Court of Appeals for the D.C. Circuit held.

Kamal King-Gore was arrested on June 10, 2010, for selling 60.6 grams of cocaine base to a confidential informant. After being indicted, he met with prosecutors in a voluntary, off-the-record debriefing. In a written agreement, prosecutors promised that “no statements made by or other information provided by” him would “be used directly against [him] in any criminal proceeding.”

He subsequently pleaded guilty. At sentencing, despite its promise not use any statements or information obtained during the debriefing, the government told the sentencing court that King-Gore was a major drug “wholesaler” responsible for more drugs than the court knew. The term “wholesaler” was used by King-Gore during the debriefing to describe himself. The court sentenced King-Gore to well above the mandatory minimum sentence.

He appealed the government’s breach of the agreement. On appeal, the government admitted it breached the agreement, but argued that it did not prejudice King-Gore because the court still would have imposed the same sentence without the confidential information.

The Court of Appeals disagreed.

Because King-Gore raised the issue for the first time on appeal, he had to show that the error was “plain,” meaning that it affected the outcome of the case and the fairness and integrity of the proceedings, the Court said. It determined that King-Gore had met that standard.

At sentencing, the court did, in fact, rely on the government’s information about King-Gore being a wholesale drug dealer. The sentencing court stated: “As the Government argues legitimately, Mr. King-Gore was a wholesale trafficker, not just a retail trafficker in drugs. That means it’s a serious offense and suggests a higher sentence.” As such, the Court of Appeals concluded that King-Gore’s confidential statement influenced the sentencing court’s decision, and thus he was prejudiced by the government’s breach.

“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,” the Court said. “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,” the Court concluded.

The Court said it cannot justify keeping King-Gore “in prison longer for improper reasons,” which would undermine the integrity of court proceedings. Accordingly, it vacated King-Gore’s sentence and remanded for resentencing before a different judge, stressing that “the fault here rests on the prosecutors, not on the sentencing judge.” See: United States v. King-Gore, 875 F.3d 1141 (D.C. Cir. 2017). 

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Related legal case

United States v. King-Gore,



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