United States v. Gonczy

United States Court of Appeals
For the First Circuit
No. 02-2399

UNITED STATES OF AMERICA,

Appellee,

v.

DONALD L. GONCZY,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Torruella, Circuit Judge,

Cyr, Senior Circuit Judge,

and Oberdorfer,* Senior District Judge.

Benjamin D. Entine, for appellant.
Kirby A. Heller, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, Joshua Levy, Assistant
United States Attorney, Carmen Ortiz, Assistant United States
Attorney, and Monica S. Abrams, Attorney, Appellate Section,
Criminal Division, were on brief, for appellee.

February 2, 2004

*
Of the District of Columbia, sitting by designation.
 TORRUELLA, Circuit Judge. Defendant-appellant Donald L.

Gonczy ("Gonczy") appeals his sentence on the grounds that the

government breached its plea agreement with him. We vacate the

judgment and sentence, and remand for resentencing.

I.

Pursuant to a plea agreement with the government, Gonczy

pled guilty to one count of conspiracy to commit wire and mail

fraud, in violation of 18 U.S.C. § 371; eight counts of wire fraud,

in violation of 18 U.S.C. § 1343; and twenty-three counts of mail

fraud, in violation of 18 U.S.C. § 1341. Gonczy was part of a

highly sophisticated telemarketing scheme, by which a large number

of timeshare owners were induced to buy an appraisal provided by

Gonczy and his companies at $400 each. All appraisals, however,

were worthless, no timeshare unit having ever been inspected. The

government estimated that there were roughly 38,000 victims, thus

causing over $15 million in collective losses to the timeshare

owners.

Under the plea agreement, the government was obligated to

recommend "incarceration at the low end of the [United States

Sentencing] [G]uideline[s] range calculated by the court. . . .,"

although the agreement specified that such recommendation was not

binding on the district court. Gonczy also specifically reserved

the right to argue for a downward departure.

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 At the disposition hearing, the district court calculated

the sentencing range to be between 70 and 87 months, which both

parties agreed was within the appropriate range. However, after

hearing arguments, the district court sentenced Gonczy to the top

end of the range; viz. 84 months' imprisonment.

II.

One issue controls the outcome of Gonczy's appeal, and

that is whether the government breached the plea agreement,1 for

if the statements of the Assistant United States Attorney ("AUSA")

constitute a breach of the plea agreement, we will remand for

resentencing. See, e.g., United States v. Riggs, 287 F.3d 221, 226

(1st Cir. 2002). An alternative remedy is to allow withdrawal of

the guilty plea. Santobello, 404 U.S. at 263; United States v.

Clark, 55 F.3d 9, 14-15 (1st Cir. 1995). However, Gonczy has

requested that the case be remanded for resentencing.

If a proper objection is brought before the district

court, breaches of plea agreements present questions of law for

plenary review. United States v. Canada, 960 F.2d 263, 269 (1st

Cir. 1992). When a defendant does not object to the breach of the

1
Gonczy argued that there were two issues on appeal: whether the
plea agreement was breached, and whether the district judge erred
in sentencing Gonczy. A breach of a plea agreement is deemed a
violation of that agreement by the government, not by the
sentencing judge. See generally Santobello v. New York, 404 U.S.
257, 262 (1971).

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plea agreement at the sentencing hearing, this court reviews for

plain error. Riggs, 287 F.3d at 224.

The government argues that Gonczy's counsel did not

properly object because he neither stated the reason for his

objection when the alleged breach occurred, nor did he request the

plea be withdrawn, or ask the district court for the remedy of

specific performance. The government further argues that, even if

counsel effectively objected, the district court did not address

the issue of the breach and Gonczy therefore waived his objections.

We see it differently.

The government's argument fails not only because Gonczy's

counsel did object, but because the record shows that the district

court was aware of both the objection and the underlying reasons.

We have held that an objection is sufficiently raised as long as

it brings the purported breach of the plea agreement to the

district court's attention. See, e.g., United States v. Giraud-

Piñeiro, 269 F.3d 23, 25 (1st Cir. 2001)(holding defendant failed

to object because he had "knowledge of the conduct that purportedly

amounts to a breach[,] but nevertheless fail[ed] to bring it to the

attention of the district court"). The government does not cite

any authority to support its argument that counsel is required to

present a more specific objection. In the present case, when the

AUSA concluded her statement as to the sentencing range, Gonzcy's

counsel stated:

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 Your Honor, I object to the government
characterizing that what should proceed in
this [c]ourt at a minimum represents the
guidelines when the government has entered
into a plea agreement in which they have
agreed to recommend the bottom of the
guidelines in connection with that plea
agreement. Counsel's statement tends to
undermine the very agreement that the
government has entered into.

So, your Honor, with all the flourish that we
heard concerning this case just now, I think
the [c]ourt is well aware of the facts of this
case and all of those facts which were
presented by counsel are merged into the
government's conclusions that what should be
done in this case is a sentence of 70 months.

Gonczy's counsel's purpose and reasons are clear both

from the phrase "I object" and the subsequent discussion of the

prosecutor's argument before the district court. More to the

point, near the conclusion of the hearing, Gonczy's counsel alerted

the district court that "[t]he defense does not waive any objection

to [the AUSA's] remarks in the context of this argument." The

district judge specifically noted, after sentencing Gonczy, that

the "objection is not only appropriate but [counsel is] wise to

maintain it." Therefore, we consider Gonczy's objection to have

been sufficiently raised, and thus accord Gonczy's appeal plenary

review.

III.

Gonczy argues that the AUSA violated the plea agreement

when she argued for a sentence in excess of the agreed-upon

recommendation of 70 months. The government disagrees, alleging

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that the prosecutor did recommend 70 months. It argues that the

prosecutor's statements were merely anticipating Gonczy's motion

for a downward departure.

A plea agreement is a binding promise by the government

and is an inducement for the guilty plea; a failure to support that

promise is a breach of the plea agreement, whether done

deliberately or not. See Santobello v. New York, 404 U.S. 257, 262

(1971); see also United States v. Saxena, 229 F.3d 1, 6-8 (1st

Cir. 2000), United States v. Kurkculer, 918 F.2d 295, 302 (1st Cir.

1990).

At the sentencing hearing, the AUSA's remarks began with

the statement that "in line with th[e plea] the government would be

recommending 70 months' imprisonment . . . ." The AUSA then

reviewed the facts of the offense, as required at a sentencing

hearing. The government's review of the facts of the case and of

Gonczy's character cannot constitute a breach of the plea agreement

as they were relevant to the court's imposition of sentence; no

limitation can be placed, by agreement or otherwise, on this

information. See Saxena, 229 F.3d at 6 (noting that under 18

U.S.C. § 3661 no limitation is permitted on the type of character

information a district court may receive for consideration in

imposing sentence). The government has a duty to bring all facts

relevant to sentencing to the judge's attention. See id. This

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duty coexists with the government's duty to abide by a plea

agreement.

We are mindful, however, that a defendant entering into

a plea agreement with the government undertakes to waive certain

fundamental constitutional rights; because of that waiver, the

government is required to meet "the most meticulous standards of

both promise and performance." Riggs, 287 F.3d at 224 (citations

omitted); see also Santobello, 404 U.S. at 261. In this case, the

substance of the prosecutor's argument at the sentencing hearing

can only be understood to have emphasized Gonczy's wrongdoing and

his leadership role in the offense, advocating for the imposition

of a higher sentence than the agreed-upon term of 70 months. After

summarizing the facts of the case, she argued to the district court

as follows:

I would submit, your Honor, that the
defendant was the brains behind this operation
. . . that he set up these appraisal companies
that obtained the moneys from innocent victims
that exist in this case . . . .

Your Honor, the defendant through his
conduct ruined many lives. He set up this
elaborate operation that involved numerous,
numerous individuals. He ruined the lives of
his own children. Although they willingly and
voluntarily participated in this scheme, he is
the one that brought them and involved them in
this through his own promises.

This was also, I want to inform the Court,
this was a very blatant fraud. Despite being
aware of law enforcement investigations
locally initially that were conducted by the
Florida Department of Law Enforcement, the

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 defendant basically laughed in the face of law
enforcement efforts and even upon becoming
aware of federal law enforcement efforts
through the investigation that we were
conducting and the numerous searches that we
conducted throughout the country, continued to
operate this scheme to defraud and continued
to operate it after he left to go to St.
Marten [sic] and fled there. And I would
submit, your Honor, that this scheme did not
come to a halt despite our investigation,
despite our searches and seizures, until Mr.
Gonczy himself was finally arrested in January
of 2001 and then extradited back to this
country from St. Marten [sic].

The district court chided the AUSA for being repetitive and

effectively ended her argument. The prosecutor then concluded,

stating that "the defendant at a minimum deserves what the

guidelines provide for and those are his just deserts [sic]."

We have found in similar circumstances that an AUSA

violated a plea agreement when she "never . . . affirmatively

recommended a 36-month sentence and her comments seemed to undercut

such a recommendation." Canada, 960 F.2d at 268. In Canada, we

found that while the AUSA's comments "stopped short of explicitly

repudiating the agreement, Santobello prohibits not only explicit

repudiation of the government's assurances, but must in the

interests of fairness be read to forbid end-runs around them." Id.

at 269 (citations and quotation marks omitted).

The government argues that this appeal is distinguishable

from Canada because the AUSA in fact recommended 70 months. No

magic formula exists for a prosecutor to comply with the agreed-

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upon sentence recommendation, but the prosecutor's "overall conduct

must be reasonably consistent with making such a recommendation,

rather than the reverse." Id. at 268; see also Saxena, 229 F.3d at

6 ("[s]atisfying this obligation [under the plea agreement]

requires more than lip service on a prosecutor's part."). The

initial recommendation in Gonczy's case was undercut, if not

eviscerated, by the AUSA's substantive argument to the district

court.

The government's argument that the prosecutor was merely

anticipating the request for a downward departure is unavailing.

The district court in the sentencing hearing clearly designated the

first part of the hearing for the sentence recommendation and the

second part for the issue of downward departure. Moreover, the

downward departure related to Gonczy's medical condition. Nowhere

in the initial argument related to sentencing was that condition

mentioned.

We agree with the district court that "no fair reading of

[the prosecutor's] argument to the [c]ourt would lead an impartial

observer to think that [she] thought 70 months' was an adequate

sentence." The district judge admonished the prosecutor, saying

that "if you plea bargain out a case at 70 months then the entire

argument should be devoted to a sentence of 70 months." While

paying lip service to a term of 70 months' imprisonment, the AUSA

substantively argued for a sentence at the higher end of the

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guidelines. In doing so, the government violated the plea

agreement it entered into with Gonczy.

IV.

For the foregoing reasons, we vacate the judgment and

sentence and remand for resentencing.

Vacated and Remanded.

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