United States v. King-Gore, 875 F.3d 1141

Background

Kamal King-Gore pleaded guilty to distributing more than 28 grams of cocaine and was sentenced to 162 months’ imprisonment and 48 months supervised release; he appealed.
After arrest, King-Gore gave a voluntary, off-the-record debriefing under a government promise that statements provided would not be used directly against him; the government concedes it breached that promise at sentencing.
At sentencing the prosecutor characterized King-Gore as a “wholesale trafficker,” citing a quarter-kilo figure and valuation that derived from the debriefing statements.
The district court found the career-offender Guideline applicable (range 188–235 months) but imposed 162 months, citing seriousness of offense, career criminal history, and the government’s wholesaler characterization as part of its § 3553(a) analysis.
King-Gore raised the breach issue for the first time on appeal; the D.C. Circuit reviewed under the plain-error standard and focused on whether the breach prejudiced the sentence.
The court concluded there is a reasonable likelihood the breach increased the sentence, vacated the sentence, and remanded for resentencing before a different judge.

Issues

Issue	Plaintiff's Argument (King-Gore)	Defendant's Argument (Government)	Held
Whether the government’s use at sentencing of information from a promised-confidential debriefing was plain error	The government breached its promise and that improperly sourced information (portraying him as a wholesaler) reasonably likely affected his sentence	Government admits breach but contends the record independently justified the court’s characterization and sentence, so no prejudice	Breach was plain error and there is a reasonable likelihood the breach affected the sentence; vacated and remanded for resentencing
Whether the plain-error standard is satisfied where the district court could not have known of the breach	Plain error can be found on appeal even if the district court had no opportunity to know the error	Same; argues no prejudice so no reversal needed	Court applies plain-error review, noting appellate evaluation of obviousness is appropriate and finds error clear
Whether independent record evidence (sales, offers to sell larger amounts, prior convictions) cures the breach-prejudice defect	Breach tainted sentencing; defendant bears burden to show reasonable likelihood of effect, which he met	Government: ample independent evidence justified a higher sentence irrespective of debriefing material	Court: independent evidence supported a substantial sentence, but a reasonable likelihood exists that the improper wholesaler characterization pushed sentence higher — prejudice shown
Whether remand should be to a different judge	Not addressed by King-Gore as a main defense point	Government did not oppose but court should decide	Court orders resentencing before a different judge to avoid risk of subconscious influence from earlier improperly sourced statements

Key Cases Cited

Puckett v. United States, 556 U.S. 129 (plain-error standard for forfeited claims)
Henderson v. United States, 568 U.S. 266 (appellate plain-error review can find error obvious post-trial)
In re Sealed Case, 573 F.3d 844 (D.C. Cir.: resentencing prejudice standard relaxed; prejudice shown if reasonable likelihood sentence affected)
United States v. Bigley, 786 F.3d 11 (D.C. Cir.: plain-error burden in sentencing context requires reasonable likelihood of effect)
Santobello v. New York, 404 U.S. 257 (prosecutorial promise regarding sentencing and breach implications)
United States v. Dawson, 587 F.3d 640 (4th Cir. — government breach found clear even though district court unaware)
United States v. Mondragon, 228 F.3d 978 (9th Cir. — on remand to different judge after prosecutorial breach)
United States v. Fant, 974 F.2d 559 (4th Cir. — government breach and appellate correction)
United States v. Wolff, 127 F.3d 84 (D.C. Cir. — factors for remanding to different judge)