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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 11-CT-955

JEROME BRADLEY, APPELLANT,

 V.

DISTRICT OF COLUMBIA, APPELLEE.

Appeal from the Superior Court of the 

District of Columbia

(CTF-5276-10)

(Hon. Frederick J. Sullivan, Magistrate Judge)

(Hon. Florence Y. Pan, Associate Judge)

(Argued January 8, 2013 Decided January 22, 2015)

George Weiss, with whom Stephen F. Brennwald was on the brief, for 

appellant.

John J. Woykovsky, Assistant Attorney General, with whom Irvin B. Nathan, 

Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, and 

Rosalynn Calbert Groce, Deputy Solicitor General, were on the brief and 

supplemental brief, for appellee. 

James Klein and Samia Fam, Public Defender Service, filed an amicus 

curiae brief on behalf of appellant.

Before EASTERLY and MCLEESE, Associate Judges, and FERREN, Senior 

Judge.
2

EASTERLY, Associate Judge: “[S]entencing is a critical stage of a criminal 

trial; to a criminal defendant, perhaps the most important.”1 The goal is to have the 

punishment fit the individual defendant and the crime he committed. That goal is 

not served when a sentencing judge relies on a mistaken understanding of a 

defendant’s criminal history. 

In this case, Jerome Bradley was convicted of driving without a license,2

operating a vehicle after revocation or suspension,3reckless driving,4operating an 

all-terrain vehicle on public property,5and fleeing from the scene of an accident.

6

The charges arose from an incident in which Mr. Bradley lost control of the allterrain vehicle he was driving on a city street and hit a pedestrian. After finding 

Mr. Bradley guilty, the magistrate judge immediately proceeded to sentencing and

made a number of remarks about Mr. Bradley that lacked adequate support, either 

in the trial record, or in documents available on CourtView7that the magistrate 

 

1

 United States v. Hamid, 531 A.2d 628, 643 (D.C. 1987). 

2

 D.C. Code § 50-1401.01 (d) (2001).

3

 D.C. Code § 50-1403.01 (e) (2001).

4

 D.C. Code § 50-2201.04 (b) (2001).

5

 D.C. Code § 50-2201.04b (a) (2005 Supp.).

6

 D.C. Code § 50-2201.05 (a)(1) (2001) (repealed 2013).

7

 CourtView is the Superior Court’s electronic docketing system.
3

judge subsequently identified, after a record remand, as the basis for his sentencing 

determination. 

With this opinion we reaffirm that “[m]isinformation or misunderstanding 

that is materially untrue regarding a prior criminal record, or material false 

assumptions as to any facts relevant to sentencing, renders the entire sentencing 

procedure invalid as a violation of due process.” United States v. Hamid, 531 A.2d 

628, 644 (D.C. 1987) (quoting United States v. Malcolm, 432 F.2d 809, 816 (2d 

Cir. 1970)) (emphasis omitted). We also reinforce principles of transparency and 

make clear that if a sentencing court is considering extra-record information about 

a defendant in CourtView, i.e., pleadings and documents associated with other 

cases, the court must disclose that fact to the parties and make those documents 

part of the record. Applying these principles to this case, we hold that Mr. 

Bradley’s right to due process at sentencing was violated. Thus, although we 

affirm his conviction, we vacate his sentence and remand for resentencing. 
4

I. Facts and Procedural History

In the early evening hours on March 24, 2010, Mr. Bradley was driving an

all-terrain vehicle (“ATV”) on 8th Street Southeast when he came head-to-head 

with a police car. Mr. Bradley veered around the police car, lost control of the 

ATV, and drove over the curb and into a group of people standing on the other side 

of the street. The ATV hit Julius Mgongo, who flipped over the vehicle and 

suffered a broken leg. After the accident, Mr. Bradley ran, and the police caught 

up to him a few blocks away. 

Mr. Bradley’s case was tried before a magistrate judge in a single afternoon. 

With no pause in the proceedings, the magistrate judge heard testimony from the 

police, Mr. Mgongo, a number of bystanders, and Mr. Bradley;

8

heard closing 

arguments; and found Mr. Bradley guilty of all charges. 

 

8

 Before Mr. Bradley testified, the government stated that it intended to 

impeach him with certified records for three criminal convictions; but the 

prosecutor only elicited bare admissions that Mr. Bradley had two convictions: a 

2008 conviction for possession of cocaine, and another conviction (no date 

specified) for carrying a pistol without a license. The government elicited no 

testimony about the sentences Mr. Bradley received for these convictions. 
5

Immediately after announcing his verdict, the magistrate judge asked the 

government if it wanted “to get a presentence report” or to submit a victim impact 

statement; the magistrate judge acknowledged, however, that “it sounds like the 

victim has made peace with Mr. Bradley here.” The government responded that it 

was “ready to proceed with sentencing now” and saw no “need for a presentence 

report.” The magistrate judge then offered to order a presentence report if defense 

counsel wished one to be generated, but indicated that Mr. Bradley would be 

locked up pending sentencing, or, as the magistrate judge put it, Mr. Bradley was 

“going to jail tonight, right now.” Counsel responded, “then we better proceed 

today.” 

The magistrate judge directed the government to make its sentencing 

recommendation. The prosecutor requested a sentence of at least six months of jail 

time. In support of this request the prosecutor quickly reviewed what the 

government considered to be the salient facts: that Mr. Mgongo suffered a broken 

leg which required surgery; Mr. Bradley had run from the scene of the accident; 

Mr. Bradley had prior convictions, including “run-ins with the law around drug[s]

and guns”; and Mr. Bradley was on probation at the time of the accident. 
6

Defense counsel and Mr. Bradley spoke next, with counsel representing that 

Mr. Mgongo did not want Mr. Bradley to go to jail, and Mr. Bradley explaining 

that he had apologized to Mr. Mgongo and had tried to help him out financially. 

Mr. Bradley also explained that he needed to keep working at his autobody 

business to support his wife and three children. 

The magistrate judge then said the following: 

THE COURT: All right, Mr. Bradley, I have listened to 

you. I listened to the evidence here. It’s now 20 minutes 

of 6:00. I don’t like putting people in jail. I really don’t. 

The system has been really kind to you, see, and I don’t 

know where you get this attitude that the system’s against 

you and every police are[] against you, but the system’s 

been very, very kind to you. That last charge that you 

were charged with, the 30-year, you could have gone to 

jail for about 40 years, 60 years maybe, I don’t know, 

and Judge Jackson gave you probation. Took a chance 

that Mr. Bradley’s going to do right, and what happens, 

he almost kills a guy while he’s on a probation, almost 

kills a guy. That’s the pay, pay back that Judge Jackson 

got for being kind to you. 

Now, the buck stops here. I’m not going to be kind 

because I don’t, you’ve engaged in risky conduct your 

whole life, selling drugs, being around guns, fleeing from 

the police. It’s all right here. It’s a picture of Jerome 

Bradley as we know him, and today the words out of 

your mouth would even confirm my suspicions. You 

have no regard for anybody but yourself. You’re only 

telling me this because you just don’t want to go to jail, 

but you’re not going to fool me. I know you and 

unfortunately I can’t put you away for longer than I can 
7

because I would, because I truly believe you’re a danger 

to society. I truly believe that you’re going to go back 

out there, no matter how much time I give you, you’re 

going to sell your drugs, you’re going, you’re going to 

shoot somebody, you’re going to probably cause a lot of 

problems for innocent people, but I can only do what I 

can do here.

MR. BRADLEY: Can I say one thing?

THE COURT: And I say that – wait a second. You’re 

telling me what a good guy you are, but I got your 

alleged probation violation report here. As of this 

writing, this is, by the way this writing was in March of 

2010. As of this writing the defendant has not completed 

his community service hours. The judge spared you, the 

system spared you 40 years in jail and you didn’t do your 

community service hours to pay them back, a few lousy 

hours.

[DEFENSE COUNSEL]: Your Honor, he had just –

THE COURT: The defendant, wait a second, hold on a 

second. On 3/1/2010 the offender submitted a waterloaded specimen. He’s trying to fool the probation 

officer about his drug usage. The defendant has tested 

positive for cocaine, and then he goes out and he does 

what he did here. So, it wasn’t just this even that’s 

caused you to be in trouble with Judge, Judge Jackson 

and your probation. 

Having thus sketched this “picture of Jerome Bradley as we know him,” the 

magistrate judge concluded, “[s]o, I don’t have any sympathy whatsoever.” The 

magistrate judge then sentenced Mr. Bradley to the maximum imprisonment or 

fine permitted for a total of eighteen months incarceration and $2,000 in fines. 
8

Mr. Bradley filed a Motion for Judicial Review of Trial Court’s Judgment 

under Super. Ct. Crim. R. 117 (g)(1). He argued that the evidence was insufficient 

to support his reckless driving conviction. He also argued that he was improperly 

cut off from allocuting. Lastly, he argued that the magistrate judge made 

“improper and unfounded comments about [him] at the time of sentencing,” and

that it was not clear what information the magistrate judge had reviewed before 

sentencing, but whatever it was, the magistrate judge’s comments had no 

foundation and could only be attributable to judicial bias. As a consequence, Mr. 

Bradley argued, he received an overly harsh sentence for “offenses that, although 

serious, are basic traffic offenses.” 

An associate judge of the Superior Court considered Mr. Bradley’s motion

and rejected his challenges to his conviction and sentence. Specifically with 

respect to Mr. Bradley’s challenge to the magistrate judge’s sentencing 

determination, the associate judge acknowledged that “some of the words used by 

Magistrate Judge Sullivan at the sentencing hearing were ill chosen.” The 

associate judge elaborated, 

To be sure, the [trial] court made some statements that 

were overstated and exaggerated: it declared that it 

believed that defendant was going to “sell drugs” and 

“shoot somebody” upon release. It also averred 

(inaccurately) that defendant had “almost killed a guy”

while on probation. These words were ill chosen, and if 
9

read literally, were not based on any evidence in the 

record. Defendant had not previously been convicted of 

selling drugs or shooting anyone; and the court was 

certainly aware that Mr. Mgongo had not, in fact, almost 

died from being struck by the ATV. 

Nonetheless the associate judge concluded that “a fair reading of the sentencing 

transcript does not reveal any improper prejudice or bias on the part of the trial 

judge” and discerned no reversible error in the imposition of Mr. Bradley’s 

sentence. Mr. Bradley appealed the associate judge’s ruling to this court. 

After hearing oral argument, this court retained jurisdiction but remanded 

the record to the Superior Court for identification of any and all documents the 

magistrate judge relied upon in making his sentencing determination. In response, 

the associate judge transmitted to this court a one-paragraph statement from the 

magistrate judge. In that statement the magistrate judge explained that the parties 

had “requested immediate sentencing following the trial; therefore, no pre-sentence 

report was prepared.” He further stated that he had “no present recollection of 

particular documents he relied upon for his sentencing determination.” Even so, 

the magistrate judge recalled that he had “studied the Defendant’s juvenile and 

criminal history by examining images of documents contained in CourtView; a 

total of 16 juvenile and adult criminal matters,” and that these “records contained 

numerous complaints, indictments, petitions, affidavits, probation violation reports, 
10

pleadings and images of other documents which the Court reviewed.” An 

accompanying statement by the associate judge noted, however, that there were 

only 15 juvenile and adult criminal matters on CourtView as of the date of Mr. 

Bradley’s sentencing in this case, and that only seven of these matters (one of 

which was this case) had any corresponding documents that could be viewed in 

CourtView. The associate judge transmitted to this court the documents available 

in CourtView related to these seven matters, which amounted to 68 pages in all. 

The volume of Mr. Bradley’s records perhaps suggests a more serious 

criminal history than Mr. Bradley in fact possesses. After weeding out dismissed 

charges and matters that appear to have proceeded no further than an arrest, these 

records document four convictions from two incidents, both in 2008. The first 

incident resulted in convictions for felony carrying a pistol without a license9and 

misdemeanor possession of cocaine,

10 for which Mr. Bradley received consecutive 

sentences of twelve months’ incarceration (suspended except for four months) and

180 days’ incarceration (suspended) respectively, as well as concurrent terms of 

one year of supervised release and probation. The second incident resulted in 

convictions for felony fleeing from a law enforcement officer and misdemeanor 

 

9

 D.C.Code § 22-4504 (2001).

10

 D.C. Code § 48-904.01 (d) (2001). 
11

assault on a police officer for colliding with a police vehicle, for which Mr. 

Bradley received consecutive sentences of twelve months’ incarceration 

(suspended except for six months) and 120 days’ incarceration (suspended except 

for seven days) respectively, as well as one year of supervised release and one year 

of probation. 

Upon review of these supplemental record materials, this court ordered the 

parties to file supplemental briefs11 addressing three questions: 

1. Did the trial court’s statements that Mr. Bradley (a) had “engaged 

in risky conduct his whole life, selling drugs, being around guns, 

fleeing the police”; (b) was “going to sell . . . drugs”; (c) was going 

to “shoot somebody”; (d) “could have gone to jail for 40 years, 60 

years maybe” but had instead received probation; and (e) “almost 

kills a guy while he’s on a probation” run afoul of this court’s and 

the Supreme Court’s precedent that a defendant’s right to Due 

Process is violated if he is sentenced based on “misinformation or 

misunderstanding that is materially untrue regarding a prior 

criminal record or material false assumptions as to any facts 

relevant to sentencing”? United States v. Hamid, 531 A.2d 628, 

644 (D.C. 1987); see Townsend v. Burke, 334 U.S. 736, 741 (1948) 

(a sentencing determination based on “assumptions concerning [a 

defendant’s] criminal record which [are] materially untrue . . . is 

inconsistent with due process of law.”).

 

11

 PDS was invited to participate in this case as amicus in this court’s 

supplemental briefing order; Mr. Bradley subsequently moved to adopt the 

arguments made in PDS’s brief.
12

2. In conducting an inquiry under Hamid and Townsend regarding the 

foundation for a trial court’s sentencing determination, should this 

court take into account whether documents establish prior criminal 

conduct by a preponderance of the evidence? See United States v. 

Watts, 519 U.S. 148, 156 (1997).

3. Was it permissible for the sentencing judge to consider information 

in court records from other cases without identifying on the record 

for the parties which records it was considering and without 

formally making those records part of the record in this case? 

Supplemental briefs have been filed and we now resolve this case.

II. ANALYSIS

A. Scope of Review 

We begin by clarifying the scope of our review. In our system, magistrate 

judges may conduct certain non-jury criminal proceedings. See D.C. Code § 11-

1732 (j)(5) (2012 Repl.); Super. Ct. Crim. R. 117 (c). While judgment by a 

magistrate judge is final for the purposes of the parties, D.C. Code § 11-1732 

(j)(5); see Arlt v. United States, 562 A.2d 633, 634-35 (D.C. 1989), it is not final 

for the purposes of this court. Rather, any “appeal to the District of Columbia 

Court of Appeals may be made only after a judge of the Superior Court has 

reviewed the order or judgment.” D.C. Code § 11-1732 (k) (2012 Repl.). A 

defendant initiates this review by filing a motion pursuant to Super. Ct. Crim. R. 
13

117 (g)(1), which provides that an associate judge reviewing the order or judgment 

of a magistrate judge has plenary authority to “affirm, reverse, modify, or remand, 

in whole or in part, . . . and enter an appropriate order or judgment.” Id. We have 

held that, “absent extraordinary circumstances,” a defendant “ordinarily” must 

present in his Rule 117 (g) motion “all the issues to be raised [on appeal] or else 

forego their consideration later by this court.” Dorm v. United States, 559 A.2d 

1317, 1318 (D.C. 1989). 

Mr. Bradley did not seek review in Superior Court of one of the issues he 

seeks to raise on appeal to this court: his argument that his conviction must be 

overturned because his cross-examination of a witness was improperly constricted. 

Because of the very short time within which a Rule 117 (g) motion must be filed, 

we construe Mr. Bradley’s motion “more generously than we might otherwise for 

an indication that the issues raised on appeal were noted below.” See Dorm, 559 

A.2d at 1318. Nevertheless, because Mr. Bradley made only passing reference in 

the factual summary section of his Rule 117 (g) motion to a ruling by the 

magistrate judge limiting his ability to “further confirm” a point of impeachment of 

a particular witness, and then said nothing about this ruling in his legal argument, 

we cannot say that Mr. Bradley gave any indication that he believed that the 
14

magistrate judge’s ruling limiting cross-examination was reversible error (as he 

now argues to this court). Therefore, we do not address this claim.12

With respect to Mr. Bradley’s two remaining and related claims on 

appeal—that the magistrate judge’s sentencing determination was based on 

material misinformation indicative of bias and that Mr. Bradley was prevented 

from fully allocuting at sentencing—the government argues that our review is 

restricted to plain error. But Mr. Bradley raised these claims in his Rule 117 (g)

motion in Superior Court, and in that forum, the government did not argue these 

claims were unpreserved. We have held in other contexts that the government may 

waive “waiver” as an argument on appeal. See, e.g., In re T.L., 859 A.2d 1087, 

1090 n.6 (D.C. 2004). Here, we are mindful of the fact that Mr. Bradley’s appeal 

 

12

 In the heading for this argument in his appellate brief to this court, Mr. 

Bradley asserts that the magistrate judge’s “refusal to permit full crossexamination” of this witness “was plain error.” But the body of his brief contains 

no discussion of the plain error test. Assuming that a demonstration of plain error 

constituted “extraordinary circumstances” so as to permit appellate review 

notwithstanding a failure to raise such a claim in a Rule 117 (g) motion, see Dorm, 

559 A.2d at 1318, Mr. Bradley has failed to develop any argument that the plain 

error standard was met in this case. See Hensley v. District of Columbia Dep’t of 

Emp’t Servs., 49 A.3d 1195, 1206 (D.C. 2012) (“[I]ssues adverted to in a 

perfunctory manner, unaccompanied by some effort at developed argumentation, 

are deemed waived.”) (internal citation and quotation marks omitted); see also 

Stone v. Alexander, 6 A.3d 847, 853 (D.C. 2010) (concluding that an argument was 

not properly before the court where appellant “fail[ed] to develop [it] any further 

than listing it in a section heading”).
15

is taken from the order of an associate judge,

13 who has full authority to “affirm, 

reverse, modify or remand in whole or in part the magistrate judge’s order or 

judgment and enter an appropriate order of judgement.

14

 We are also mindful of 

our previous pronouncements that “the plain error rule is not meant to be punitive; 

instead its purpose is to allow the trial judge [to] fully . . . consider issues and 

thereby avoid potential error, and to afford prosecutors the opportunity to present 

evidence on the issue raised.” Williams v. United States, 966 A.2d 844, 847 (D.C. 

2009) (internal quotation marks omitted). Accordingly, we determine that where a 

defendant raises an issue in a motion for judicial review under Rule 117 (g), the 

government does not advocate for plain error review in Superior Court, and an 

associate judge conducts a plenary review of the merits of defendant’s claim, we 

will not restrict our appellate review to plain error.

Lastly, we note that, although we are reviewing the associate judge’s denial 

of Mr. Bradley’s Rule 117 (g) motion, we do not defer to the associate judge’s

 

13

 See Bratcher v. United States, 604 A.2d 858, 861 (D.C. 1992) (explaining 

that when a defendant appeals a magistrate judge’s order or judgment after first 

seeking review under Rule 117 (g), “[t]hat appeal . . . is taken not from the 

[magistrate judge’s] ruling but from the Superior Court judge’s final order or 

judgment” (quoting Arlt, 562 A.2d at 635)); see also D.C. Code § 11-721 (a)(1) 

(2012 Repl.).

14

 Super. Ct. Crim. R. 117 (g)(1). 
16

assessment of Mr. Bradley’s claims. Our review and the associate judge’s review

are the same,

15 and our focus therefore must be on what the record reflects the 

magistrate judge said and did. 

We turn now to examine Mr. Bradley’s preserved challenge to the 

sentencing procedure in this case. 

B. Mr. Bradley’s Sentencing 

On appeal to this court, Mr. Bradley challenges the “trial judge’s improper 

and unfounded comments about [a]ppellant at the time of sentencing,” and alleges 

a violation of his due process rights. Although Mr. Bradley ascribes bias to the 

magistrate judge, the foundation of his argument on appeal is, as it was in his Rule 

117 (g) motion in Superior Court, that “the [magistrate] judge’s comments, if taken 

 

15

 See Super. Ct. Crim. R. 117 cmt. (“The standard of review of a magistrate 

judge’s decision pursuant to subparagraphs (g)(1) and (2) is the same as applied by 

the Court of Appeals on appeal of a judgment or order of the Superior Court.”). 
17

literally, were not based on anything in the record.”16 We sought and obtained 

supplemental briefing on that issue, and we review that claim.17

1. The Nature of the Claim and the Standard of Review

Preliminarily we acknowledge that, ordinarily, “this court does not review 

sentences for substantive reasonableness.” Saunders v. United States, 975 A.2d 

165, 167 (D.C. 2009). “This does not mean, of course, that the sentencing process 

. . . is immune from appellate scrutiny.” Matter of L.J., 546 A.2d 429, 434-35

(D.C. 1988) (providing examples of some of the defects in the sentencing process 

 

16

 In his motion for review, Mr. Bradley asserted that a number of the 

magistrate judge’s statements at sentencing were “inappropriate, improper, and 

shocking, as they are not based on any evidence in the court’s possession or in the 

record.” Although Mr. Bradley attempted to attach an improper motive—bias—to 

the magistrate judge’s actions, the government, in its opposition to Mr. Bradley’s 

Rule 117 (g) motion, understood that Mr. Bradley’s challenge to the record 

foundation for the magistrate judge’s statements could serve as an independent 

basis to invalidate his sentence. It addressed this argument separately in its 

pleading, acknowledged case law holding that the due process clause is violated if 

the sentencing judge “relie[d] on information or assumptions that are ‘materially 

false,’” and asserted that the magistrate judge had relied on “permissible 

considerations.” Thus the associate judge ruling on Mr. Bradley’s Rule 117 (g) 

motion was aware of the due process implications when she determined there was 

no reversible error in the imposition of Mr. Bradley’s sentence. 

17

 We do not address Mr. Bradley’s bias claim other than to observe that we, 

like the reviewing court, see no manifestation of improper prejudice or bias on this 

record.
18

that this court reviews). The standard by which we review sentencing procedures 

varies based on the measure of discretion given to the court under the 

circumstances. For example, we review for abuse of discretion a sentencing

court’s denial of a request for a continuance, which is intimately related to a 

court’s discretionary management of its docket. See, e.g., Wheeler v. United 

States, 977 A.2d 973, 991-92 (D.C. 2009). We also afford a sentencing court 

considerable discretion in marshalling the factual foundation for a sentence; a court 

“may examine any reliable evidence, including that which was not introduced at 

trial, and may consider a wide range of facts concerning a defendant’s character 

and his crime.” Caldwell v. United States, 595 A.2d 961, 966 (D.C. 1991) (internal 

citation and quotation marks omitted). But “this discretion has some limitations 

arising from the constitutional guarantee of due process”; in particular, “due 

process is violated when the sentencing judge relies on “material false assumptions 

as to any facts relevant to sentencing.” Id. at 967 (quoting Hamid, 531 A.2d at

644).

18

 

 

18

 See Harris v. United States, 612 A.2d 198, 208 (D.C. 1992) (similarly 

acknowledging due process limitations on a sentencing court’s exercise of 

discretion and citing United States v. Tucker, 404 U.S. 443, 446 (1972)).
19

We explained in Hamid that “[n]o [judge] can make valid judgments without 

knowledge of the facts,” 531 A.2d at 645 (quoting Malcolm, 432 F.2d at 819), and 

that “[f]air administration of justice demands that the sentencing judge will not act 

on surmise, misinformation and suspicion.” Id. (concluding that a court may not 

“rely on mistaken information or baseless asumptions”) (internal citation and 

quotation marks omitted). As support for this pronouncement, we relied on United 

States v. Tucker, 404 U.S. 443, 447 (1972) (distinguishing between a sentence 

based on informed discretion and one “founded at least in part upon 

misinformation of constitutional magnitude”), and Townsend, 334 U.S. at 741 

(observing that “whether caused by carelessness or design,” a sentencing 

determination based on inaccurate information “is inconsistent with due process of 

law”).

Hamid examined a sentencing court’s reliance on misinformation in the 

context of reviewing a trial court’s grant of writ of error coram nobis; thus it did 

not address the standard of review that would apply on direct review of such 

claims. We have, in other contexts, observed that “[w]e review fundamental legal 

errors in the sentencing process . . . de novo.” Dalton v. United States, 58 A.3d 

1005, 1015 (D.C. 2013) (internal quotation marks omitted) (affirming that it 
20

violates due process to enhance a defendant’s sentence as a punishment for 

exercising his right to go to trial). But this court, in Caldwell, stated without 

further exposition that we reviewed for abuse of discretion the appellant’s claim 

that the sentencing court had “relied on the prosecutor’s recitation of unsworn 

evidence, unverified statements of persons unavailable for cross-examination, and 

incidents of assault which were never adjudicated and which appellant denied but 

had no opportunity to rebut.” 595 A2d at 966. This court then determined that 

there was adequate information in the presentence report and in the defendant’s 

own sentencing memorandum on which the sentencing court could have 

legitimately relied and that the defendant had “an adequate opportunity to rebut the 

substance of the prosecutor’s recitation.” Id. at 967-68. Caldwell leads us to 

conclude that a sentencing-based-on-misinformation claim presents a mixed 

question of law and fact that requires “unmixing.” See Simms v. United States, 41 

A.3d 482, 486 (D.C. 2012). In this case, that means we examine whether there is 

information in the record that reasonably supported the magistrate judge’s

statements at sentencing, and then, in light of that determination, we consider de 

novo whether Mr. Bradley’s due process rights were compromised at sentencing.19

 

19

 This appears to be the analytic structure used in Wallace v. United States, 

936 A.2d 757, 780 (D.C. 2007). After explaining that a defendant making a

sentencing-based-on-misinformation claim “must prove that the sentencing judge 

(continued...)
21

2. Whether the magistrate judge’s statements at Mr. Bradley’s 

sentencing were adequately supported

The magistrate judge described Mr. Bradley as an inveterate gun-wielding,

drug-dealing criminal who had managed to evade any real consequences for his 

actions. But, as the government conceded in supplemental briefing, that portrait

lacked an adequate foundation in the record evidence.20 

 

(...continued)

actually relied on the unreliable evidence,” it concluded that the trial court’s 

statements at sentencing were well supported by “a substantial amount of 

uncontested information and uncontested evidence presented during the sentencing 

hearing and during prior proceedings” and thus that the court’s statements at 

sentencing did not “reflect[] an abuse of discretion or den[y] appellant due 

process.” Id. at 780-81 (emphasis added). 

20

 Because we determine that the trial court’s statements about Mr. Bradley 

were not reasonably supported in the record by any measure, we need not address 

the question on which we ordered additional briefing, i.e., whether, in conducting 

an inquiry under Hamid and Townsend, this court should assess whether a 

defendant’s prior criminal conduct has been proved by a preponderance of the 

evidence. Thus, we need not resolve whether United States v. Watts, 519 U.S. 148, 

157 (1997) (holding that proof of a prior acquitted charge by a preponderance of 

the evidence satisfies due process and allows its consideration at sentencing) 

overruled this court’s decision in Powers v. United States, 588 A.2d 1166, 1172 

(D.C. 1991) (holding that “reliable evidence” of a prior uncharged crime, not “a 

preponderance of the evidence or any other evidentiary standard,” allows its 

consideration at sentencing). We note, however, that both the government and 

amicus (whose arguments Mr. Bradley adopted, supra note 11) agree that, to 

comply with due process, the standard of proof is, at a minimum, a preponderance 

of the evidence. 
22

The magistrate judge said that Mr. Bradley had “engaged in risky conduct 

[his] whole life, selling drugs, being around guns, fleeing from the police,” a 

statement that the reviewing associate judge recognized as “overstated and 

exaggerated.” Mr. Bradley was thirty years old at the time of his sentencing in 

2010 and his four 2008 convictions—a felony and misdemeanor each from two 

discrete incidents—were his only priors.21 These convictions coupled with his 

convictions in this case do not adequately support a statement that Mr. Bradley had 

been “selling drugs” and had been “around guns” his “whole life.”22

The magistrate judge further observed, “no matter how much time I give 

you, you’re going to sell your drugs, you’re going, you’re going to shoot 

somebody.” But as the reviewing associate judge noted, not only had Mr. Bradley 

never been convicted of selling drugs, there also was no indication that Mr. 

Bradley had ever used or attempted to use a gun to threaten or injure anyone. 

 

21

 The CourtView records that the magistrate judge later identified as a 

foundation for his statements show a number of other arrests and charges, but 

either there is no information about the disposition of these charges or the records 

indicate that these charges were dismissed. Such entries, on their own, do not 

establish the commission of prior criminal conduct. 

22

 Even if we assume the court meant Mr. Bradley’s whole adult life, we do 

not think the court’s statement is supported by the two prior incidents on Mr. 

Bradley’s record (the first of which occurred when he was approximately 28 years 

old), coupled with his conviction in this case. 
23

Although Mr. Bradley’s prior possession of a gun was illegal, carrying a pistol 

without a license is a far cry from assault with a dangerous weapon. In fact, the 

government never specifically pressed the point that Mr. Bradley was a dangerous 

person. Rather, the prosecutor argued that Mr. Bradley deserved jail time because 

he had “had run-ins with the law around drug[s] and guns, which are not small 

potatoes,” and his past convictions showed “disregard for police officers and for 

their orders.” Mr. Bradley’s single prior conviction for drug possession, in 

conjunction with his present convictions related to illegally and recklessly driving 

an ATV, did not provide an adequate foundation for a prediction that he would sell 

drugs in the future. Nor did his single conviction for illegal possession of a gun, 

either alone or in conjunction with his past or present convictions, reasonably 

support the judge’s prediction that Mr. Bradley would shoot someone in the future. 

Lastly, the magistrate judge determined that Mr. Bradley was a bad apple 

who had duped the judge in his 2008 cases and had gotten off too easily. The 

magistrate judge asserted that Mr. Bradley “could have gone to jail for about 40 

years, 60 years maybe, I don’t know, and Judge Jackson gave you probation.” But 

that statement has no record foundation, as the government volunteered at oral 

argument. As a result of his 2008 convictions, Mr. Bradley was required to serve 

an aggregate of 10 months in jail; he was not merely given probation. Perhaps 
24

more importantly, he never faced anything approaching 40 to 60 years of prison 

time on the charges for which he was convicted.

23

 By our calculation, the 

maximum sentence the court could have imposed in 2008, if it had thought Mr. 

Bradley was the worst of offenders (and there is no record evidence that it did),

was approximately eleven years imprisonment,24 and we note, as we are certain 

that the sentencing court in the 2008 cases did, that Mr. Bradley was accepting 

responsibility and pleading guilty. Thus, as the government has conceded, the 

magistrate judge vastly overstated Mr. Bradley’s sentencing exposure in his 2008 

cases and erroneously understood the sentences Mr. Bradley had received to be 

unduly lenient.25

 

23

 Particularly in the absence of further information, it would have been 

unreasonable for the magistrate judge to consider the charges for which Mr. 

Bradley had not been convicted; those charges obviously could not have defined 

Mr. Bradley’s potential sentencing exposure. 

24

 The two felonies, carrying a pistol without a license and fleeing from a 

law enforcement officer, both carry maximum sentences of five years. D.C. Code 

§ 22-4504 (a)(1) (2001); D.C. Code § 50-2201.05b (b)(2) (2005 Supp.). And the 

two misdemeanors, assault on a police officer and drug possession, carry 

maximum sentences of 180 days. D.C. Code § 22-405 (b) (2001); D.C. Code § 48-

904.01 (d)(1) (2001). 

25 The magistrate judge, also noted that Mr. Bradley “almost kills a guy 

while he’s on a probation, almost kills a guy.” As the associate reviewing judge 

acknowledged, however, the magistrate judge “was certainly aware that Mr. 

Mgongo had not, in fact, almost died from being struck by the ATV.” Indeed, 

although Mr. Mgongo had to have surgery, followed by physical therapy, to repair 

his broken leg, the record contained no testimony that Mr. Mgongo was ever near 

death, and, in fact, the government had “no papered” the charge for aggravated 

(continued...)
25

3. Whether Mr. Bradley’s due process rights were violated

Having determined that the magistrate judge’s statements at sentencing 

contained a number of unfounded assertions regarding Mr. Bradley, we consider 

whether Mr. Bradley’s due process rights were violated. We conclude they were,

for two, interrelated reasons. 

To begin with, “courts must be concerned . . . when the sentencing process 

[has] created a significant possibility that misinformation infected the decision.” 

(internal citation and quotation marks omitted). Here there can be no question that 

the magistrate judge’s unfounded statements were material to his decision-making. 

See Hamid, 531 A.2d at 644. Indeed, the reason the magistrate judge made these 

statements was to explain why he, unlike the judge who had sentenced Mr. Bradley 

 

(...continued)

assault, a charge that requires the defendant to cause serious bodily injury to 

another person. See D.C. Code § 22-404.01 (2001). 

Nevertheless, we acknowledge the possibility that the magistrate judge 

meant to say that Mr. Mgongo “could have died” as a result of the accident. 

Caldwell, 595 A.2d at 967-68 (finding permissible judge’s statement at sentencing 

that the victim “could have died” even though victim never went to the hospital for 

her injuries). And if that is what the magistrate judge meant, we would not 

question such an assessment of the severity of the injury that a pedestrian could 

suffer as the result of being hit by an ATV, and ultimately of the riskiness of Mr. 

Bradley’s conduct driving an ATV in the District. 
26

in 2008, was “not going to be kind.” The magistrate judge announced that “the 

buck stops here,” and that Mr. Bradley was “not going to fool [him].” Rather, the 

magistrate judge asserted he “knew” Mr. Bradley and that he had “a picture of 

Jerome Bradley as we know him.” And it was with that “picture” in mind that the 

magistrate judge sentenced Mr. Bradley, expressing disappointment that he could 

not “put [Mr. Bradley] away for longer . . . because [he] would.” For this reason 

alone, remand for resentencing is thus necessary.

In addition, a due process violation warranting remand arises from the 

record in this case, or, more to the point, from the lack of a record—a condition 

that was only cured by this court’s order of a record remand. The magistrate judge

failed to document his reliance on extra-record information, namely, Mr. Bradley’s 

records in CourtView. Although the magistrate judge was unable to recall, by the 

time of the record remand, which CourtView records in particular he relied upon, 

he represented to this court that he had “studied” the entirety of Mr. Bradley’s 

“juvenile and criminal history.” We can only conclude that this study at least 

contributed to the magistrate judge’s inaccurate portrait of Mr. Bradley; 

meanwhile, Mr. Bradley was left entirely in the dark about the source of the court’s 

information about him and was unable to correct the court’s mistaken 

understanding of his criminal history. Indeed, unaware that the magistrate judge 
27

had an extra-record source of information, Mr. Bradley could only make sense of 

the magistrate judge’s sentencing statements by ascribing bias to the magistrate 

judge. 

It is fortuitous that this court even ordered a record remand, as it is not 

obvious from the trial transcript that the magistrate judge examined materials 

outside the trial record, other than an alleged violation report that the magistrate 

judge referenced in passing in rendering Mr. Bradley’s sentence.

26 We presume 

that the magistrate judge did not review Mr. Bradley’s CourtView records prior to 

issuing his verdict27 and this case went directly from verdict to sentencing without 

 

26

 The only express reference in the trial record to this document is the 

magistrate judge’s statement,“[y]ou’re telling me what a good guy you are, but I 

got your alleged probation violation report here.” 

It is not evident that Mr. Bradley’s trial counsel (who did not represent Mr. 

Bradley in his 2008 cases) either possessed a copy of this report prior to sentencing 

or knew that the magistrate judge had a copy and would be relying on information 

therein to make his sentencing determination. Rather, in his Rule 117 (g) motion, 

Mr. Bradley expressed some uncertainty about the identity of the document to 

which the magistrate judge had referred. We possess a copy of this report only 

because the government, in the proceedings before Judge Pan, first moved to 

supplement the record with this document and then, in conjunction with its initial 

briefing to this court, moved to include it in the appellate record. 

27 The magistrate judge had no apparent, legitimate cause to do so (e.g., to 

assess a detention ruling or to rule on an evidentiary issue at trial), and it would 

have been inappropriate for him to prepare for sentencing before an adjudication of 

Mr. Bradley’s guilt. See Super. Ct. Crim. R. 32 (b)(1) (a trial court may not look at 

presentence reports until after the defendant “has pleaded guilty, or nolo 

contendere, or has been found guilty,” unless the defendant gives consent on the 

record to such inpection); see also Gregg v. United States, 394 U.S. 489, 491-92 

(continued...)
28

any break in the proceedings. The court opted not to order a presentence report28

and gave no indication that it needed more information beyond that which had 

been presented at trial to make an informed sentencing decision. 

This court ordered a record remand only because it seemed improbable that 

the record available to us had served as the basis for the magistrate judge’s harsh 

statements about Mr. Bradley. The trial transcript29 reflected only that Mr. Bradley 

had one felony conviction for CPWL and one misdmeanor conviction for 

possession of cocaine, see supra note 8, and the alleged violation report referenced 

only one additional felony, fleeing a law enforcement officer. Accordingly, we 

deemed it necessary to direct the magistrate judge to identify any and all 

 

(...continued)

(1969) (“To permit the ex parte introduction of this sort of material to the judge 

who will pronounce the defendant's guilt or innocence or who will preside over a 

jury trial would seriously contravene the ... purpose [of Criminal Rule 32] of 

preventing possible prejudice from premature submission of the presentence 

report.”); In re D.M., 993 A.2d 535, 542 (D.C. 2010) (expressing concern about 

pre-adjudication review of a probation report in a case where the trial judge also 

sits as finder of fact: “This was dangerous.”). 

28

 We acknowledge that the magistrate judge consulted with the prosecutor 

and defense counsel, but, pursuant to Super. Ct. Crim. R. 32, it is the court’s 

decision whether to order a presentence report. 

29

 The transcript was the entirety of the trial record prior to the litigation 

concerning the Rule 117 (g) motion. 
29

documents he had relied upon to see if adequate support for his sentencing

statements in fact existed. 

But by ordering such a record remand, we did not mean to imply that it was 

acceptable for the magistrate judge to examine extra-record CourtView documents

without identifying them and without making them part of the record in this case.

And we now clarify that the magistrate judge should not have done this. 

We have previously acknowledged that a “defendant has the right to be 

informed of [the] information” a trial court considers “in evaluating the appropriate 

sentence for a defendant.” Foster v. United States, 615 A.2d 213, 220-21 (D.C. 

1992). This right is intertwined with a defendant’s right to allocute and speak to 

the issue of appropriate punishment, a right which is acknowledged by statute30

and court rule,31 but ultimately is “a fundamental one which implicates the due 

process clause.” Warrick v. United States, 551 A.2d 1332, 1334 (D.C. 1988). In 

 

30

 D.C. Code § 23-103 (a) (2012 Repl.) (requiring that “prior to imposing 

sentence” the trial court “shall afford counsel an opportunity to speak on behalf of 

the defendant and shall address the defendant personally and ask him if he wishes 

to make a statement in his own behalf and to present any information in mitigation 

of punishment”).

31

 Super. Ct. Crim. R. 32 (c)(1) (at sentencing defendant’s counsel shall be 

given the opportunity to address the court and “present any information in 

mitigation of punishment”). 
30

order to have a meaningful opportunity to allocute, a defendant must know what 

information is under consideration. Likewise, a defendant’s ability to seek a 

sentence correction or reduction via Super. Ct. Crim. R. 35 or appellate review by 

this court may be compromised if the information that the sentencing court relied 

upon in making its sentencing determination is not part of the record. See Johnson

v. United States, 398 A.2d 354, 364 (D.C. 1979) (“[T]he act of compiling and 

preserving a factual record enables the reviewing court to determine whether the 

decision-maker’s choice was both reasonable and proper in the specific factual 

context.”).

We acknowledge that the extra-record documents consulted by the 

magistrate judge in this case were located in the Superior Court’s own electronic 

filing system; and we do not question that a court may take judicial notice of these 

records,

32 even though Rule 32 suggests the better course is to allow Court 

 

32 See Daniels v. United States, 33 A.3d 324, 330 (D.C. 2011) (concluding 

that the trial judge did not “err in taking judicial notice of the Superior Court’s 

electronic records database, CourtView, in determining Mr. Daniels’ release status.

CourtView is the modern equivalent of the case jacket. [I]t has long been settled 

that a court may take judicial notice of its own records, which is precisely what the 

trial court did here”) (internal quotation marks omitted). 

Of course, beyond court records and matters that are properly the subject of 

judicial notice, there are limits on a court conducting its own investigation of 

(continued...)
31

Services and Offender Supervision Agency (CSOSA)33 to compile this information 

for the court. See infra at note 37; see also Harrison v. United States, 76 A.3d 826, 

833 (D.C. 2013) (cautioning that taking judicial notice of court records sua sponte

“may create an appearance of partiality”). What is objectionable is for a court to 

take judicial notice of CourtView records sub silentio. Cf. Harrison, 76 A.3d at

833 (where court took judicial notice of court records, “the procedures employed . . 

. were fair”: “[t]he trial court disclosed the facts that were being noticed, explained 

why, and gave appellant an opportunity to contest those facts”); FED. R. EVID. 201

(e) (entitling a party upon request “to be heard on the propriety of taking judicial 

notice and the nature of the fact to be noticed,” thus assuming that the court will 

notify the parties that judicial notice is being contemplated or has been taken). 

This limitation on the court’s review of CourtView materials is critical, because 

even court records may contain inaccurate or incomplete information. And 

accurate records can be misinterpreted or misunderstood. 

 

(...continued)

matters related to sentencing. See Belton v. United States, 581 A.2d 1205, 1214-15

(D.C. 1990).

33

 Rule 32 refers to the Social Services Division, but sentencing information 

is now compiled by CSOSA. D.C. Code § 24-133 (b)(2)(H) (2012 Repl.).
32

Indeed, this is precisely what happened in this case. See supra.

34

 It is also 

precisely what happened in Townsend, a case we relied on heavily in Hamid.

35

 

While the Supreme Court in Townsend acknowledged that “[f]air prosecutors and 

conscientious judges sometimes are misinformed” and that not all mistakes give 

rise to constitutional concerns, the Court held that the due process violation in that 

case stemmed from appellant’s inability (there caused by a lack of counsel36) to 

“take[] steps to see that the conviction and sentence were not predicated on 

misinformation or misreading of court records . . . .” 334 U.S. at 741. This,

according to the Court, was “a requirement of fair play.” Id. In our view, the same 

requirement of fair play required the sentencing court here to identify the 

CourtView records consulted and to make them a part of the record.37 

 

34

 It is a mystery when exactly the magistrate judge “studied” the 68 pages 

of documents available on CourtView regarding Mr. Bradley. But his examination 

could only have been quick and cursory, given that there were no apparent breaks 

in the proceedings from the beginning of trial to the pronouncement of sentence. 

35

 As we recounted in Hamid, 531 A.2d at 644, “[t]he sentencing judge in 

Townsend read aloud a list of eight convictions, passing sentence in reliance 

thereon too quickly for the uncounseled defendant to object that, in fact, in two of 

the cases he had been found not guilty, and that the charge at the basis of a third 

‘conviction’ had indeed been dismissed.” 

36

 Townsend was decided prior to Gideon v. Wainwright, 372 U.S. 335 

(1963).

37

 The principles of due process that undergird this rule of transparency are 

reflected in Rule 32. Subsection (b) spells out when CSOSA must conduct a 

presentence investigation and report, or at least generate documentation of the 

defendant’s prior criminal record, for use by the parties and the court at sentencing.

(continued...)
33

In short, we conclude that Mr. Bradley’s due process rights were violated 

both because the magistrate judge relied on misinformation in making its 

sentencing determination and because the magistrate judge failed to disclose and 

make a record of the extra-record information in CourtView that it erroneously 

thought provided a foundation for its sentencing determination.

38

C. Mootness

The government suggested for the first time at oral argument that any 

challenge to Mr. Bradley’s sentencing determination is moot because Mr. Bradley 

has already served his jail sentence. “Although we, unlike the federal courts, are 

not bound by the ‘case or controversy’ requirement of Article III of the 

 

(...continued)

That rule does not expressly address cases, such as this one, in which guilt of a 

misdemeanor is ascertained and sentencing is conducted on the same day. 

Nonetheless, it would be contrary to the spirit of Rule 32 to conclude that judges 

may consult any extra-record information they like, without informing the parties, 

in sentencing proceedings that immediately follow a misdemeanor trial or a guilty 

plea.

38

 Because we resolve Mr. Bradley’s case on this basis, we need not address 

Mr. Bradley’s separate argument that his right to allocute was compromised in this 

case by the magistrate judge’s refusal to let him respond to and challenge the 

magistrate judge’s unfounded sentencing statements. 
34

Constitution, we have adopted this requirement for prudential reasons, and 

therefore we will not normally decide questions that have become moot.” District 

of Columbia v. Grp. Ins. Admin., 633 A.2d 2, 12 (D.C. 1993). An event that 

“renders relief impossible or unnecessary”—even one that occurs while an appeal 

is pending—renders the appeal moot. Vaughn v. United States, 579 A.2d 170, 175 

n.7 (D.C. 1990). “The burden of demonstrating that a case is moot falls heavily 

upon the party asserting it,” however. In re Morris, 482 A.2d 369, 371 (D.C. 

1984). 

The government had ample opportunity and incentive to raise mootness 

earlier if it had a basis for this argument.39 But the government has not presented 

this court with a sufficient factual foundation to support a determination of 

mootness.

40 Indeed, it has never presented a mootness argument to this court in 

 

39

 As noted above, Mr. Bradley was required to seek review of his sentence 

by an Associate Judge of the Superior Court before he could appeal to this court, a 

process that took nine months. Thereafter, another thirteen months passed before 

the government filed its initial brief with this court. 

40

 Even assuming Mr. Bradley has served his jail sentence, we have no 

record evidence that Mr. Bradley has paid his $2,000 worth of fines, and the 

government at oral argument acknowledged that it did not know if the fines had 

been paid. It has long been the rule in this jurisdiction that a criminal appeal 

becomes moot “when the judgment has been satisfied by the payment of a fine or 

the completion of the sentence.” Rosenau v. District of Columbia, 147 A.2d 445, 

446 (D.C. 1959); see Hanback v. District of Columbia, 35 A.2d 189, 190 (D.C. 

(continued...)
35

writing.41 Because the government has provided us with nothing to substantiate its 

claim of mootness, “we should be slow to rule that the appeal is moot, and we 

think it more wise and fair to proceed to decide the case on its merits.” See Davis 

v. District of Columbia, 91 A.2d 14, 15 (D.C. 1952).

III. Conclusion

Because the magistrate judge relied on misinformation to sentence Mr. 

Bradley, misinformation derived from CourtView records the magistrate judge 

failed either to disclose to the parties or to make part of the record, we remand for 

resentencing.42 Pursuant to our general supervisory authority, we also direct that 

the resentencing be conducted by a different judge. See McPhaul v. United States, 

452 A.2d 371, 374 (D.C. 1982) (finding that, because actions by the trial court 

 

(...continued)

1943); see also M.A.P. v. Ryan, 285 A.2d 310, 311-12 (D.C. 1971) (acknowledging 

that decisions of the Municipal Court of Appeals for the District of Columbia 

constitute binding precedent).

41

 After raising mootness as an issue at oral argument, the government filed 

a supplemental brief with this court in which it made no mention of mootness. 

42

 In its supplemental brief to this court, the government argues that the trial 

court on remand may consider any new criminal conduct by Mr. Bradley postdating his sentencing in this case. But this court does not possess any record 

information concerning further criminal activity and we decline to reach an issue 

not presented by the record before us. 
36

were “inappropriate and could well raise constitutional questions[,]” the best 

course was “to remand the case, pursuant to our general supervisory authority, for 

resentencing before another judge”) (internal citation omitted). We take this action 

because it is important for us to consider “the appearance of justice, as well as its 

reality.” See Thorne v. United States, 46 A.3d 1085, 1093 (D.C. 2012) (internal 

quotation mark omitted).

So ordered.