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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