Lying Down with Dogs – Update for December 7, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


Like 94 out of 100 defendants, Kamal King-Gore made a deal with the government after his arrest on drug charges. One of the terms of the plea agreement, a fairly common provision, stipulated that nothing Kamal told the government in his proffer would be used against him.

fleas171207At sentencing, however, the AUSA breached the agreement by telling the court what Kamal had said at the debriefing, specifically evidence Kamal had given the government that portrayed him in fairly bad light. While the government recommended a 188-month sentence like it was supposed to do, it did so while reporting to the judge that  Kamal was a wholesale drug seller and explaining in detail the quantities Kamal had moved.

Kamal should know that if you lie down with dogs, you’re going to probably get up with fleas. Speaking of dogs, the judge – who had no idea she was being treated to information  Kamal had told the government only because it promised not to use them against him – heard the government’s dog whistle loud and clear. She obligingly branded Kamal a wholesaler (a term first used by the government) with a serious record. Nevertheless, the court sentenced Kamal to 162 months, less than the time the government agreed to recommend.

Some people are never satisfied, and you can drop Kamal into that camp. He appealed, arguing that while the government kept its word on the amount of time it recommended, it talked out of school about things it learned in the proffer, such as that Kamal had cooked up a quarter kilo of cocaine into crack. 

ausalies171207On appeal, the government admitted it broke its word, but argued that its breach did not hurt Kamal because there was plenty in the record that would have set off the judge anyway, and anyhow, he got less than his Guidelines range. Even without its pulling a data dump on Kamal at sentencing, the government said, the district judge would have hammered him.

Last week, the D.C. Circuit disagreed, reversing the sentence. The AUSA argued the “record shows ample independent evidence for the district court to conclude” Kamal “deserved a higher sentence.” This is so, the D.C. Circuit said, 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.”

dogcouch171207Here, the sentencing judge picked up the term “wholesale seller” only after the government used it in its sentencing arguments. And the government supported its use of the “wholesaler” term by referring to a sale that appeared nowhere in the record. That was enough to convince the Court of Appeals that Kamal was entitled to resentencing in front of a different judge who had not heard about what Kamal said at his proffer.

United States v. King-Gore, Case No. 13-3010 (D.C. Cir. Nov. 28, 2017)

– Thomas L. Root


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