If the Government Breaks the Plea Agreement, You Can Withdraw or Get Resentenced with a New Judge

Paul Mickens v. United States (decided March 10, 2016)

The Players: Chief Judge Washington, Associate Judge Thompson, Senior Judge Ferren. Opinion by Judge Ferren. Mindy A. Daniels for Mr. Mickens. Trial Judge: William M. Jackson.

Facts: Police officers watched Mickens appear to sell crack cocaine outside of an apartment building in Southeast, D.C. When officers tried to arrest Mickens, he fled into the apartment building, took off most of his clothes, and ran until he unlawfully barged into another apartment two blocks away. Officers caught Mickens there and brought him back to the first apartment building to retrieve his clothes. Officers found crack inside of his jacket. He faced a litany of charges – assaulting a police officer, burglary, four counts of distribution of PCP, two counts of distribution of crack, and possession with intent to distribute cocaine.

Mickens entered into a plea agreement with the government in which he would plead guilty to all charges with the burglary reduced to unlawful entry. The government agreed to waive all enhancements, other than the offenses committed during release enhancement, and allocute within the DC Voluntary Sentencing Guidelines.  At sentencing, the government asked for the PWID charge to run consecutively to the other drug charges because the PWID was not part of the same “event” as the other charges. Mickens contended that the government’s allocution violated the plea agreement as he argued that the Guidelines states that all of his non-violent drug charges arose from a “single event” which requires concurrent sentences. Mickens asked for time to decide whether to reconsider the plea and also for the sentencing to be reassigned to another judge. Judge Jackson denied the request and imposed concurrent sentences on the non-violent drug offenses.

Issue: Did the government violate the plea agreement by asking for consecutive sentences?

Holding: Yes. The Court has “stressed that the government must strictly comply with its plea agreement, and that any ambiguity should be construed against the government.” In this case, the distribution and PWID charges were all part of a “single event” because the those charges “assuredly flowed from the ‘same nucleus of facts.’” Thus, the government did not fulfill its promise to allocute within the Guidelines.

The Court rejected the government’s argument that Mickens should receive no remedy since the sentencing judge sentenced concurrently. “If the government violated its plea agreement, appellant’s sentence cannot stand.” The Court remanded the case so that a different judge could resentence, because the government’s illegal allocution had already tainted Judge Jackson. Alternatively, Mickens could withdraw his plea. JW

Read full opinion here.