United States v. Alan Rene Sajous

Case: 17-10440 Date Filed: 08/21/2017 Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 17-10440
Non-Argument Calendar
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D.C. Docket No. 1:14-cr-20874-JAL-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ALAN RENE SAJOUS,

Defendant-Appellant.

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Appeal from the United States District Court
for the Southern District of Florida
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(August 21, 2017)

Before HULL, WILSON and WILLIAM PRYOR, Circuit Judges.

PER CURIAM:
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In this out-of time appeal, Alan Sajous challenges his conviction and

sentence of 52 months of imprisonment for possessing 15 or more unauthorized

access devices. 18 U.S.C. § 1029(a)(3). Sajous argues, for the first time, that the

information to which he pleaded guilty is invalid, that the government breached the

plea agreement, that the government failed to introduce favorable evidence at

sentencing, and that his sentence is procedurally unreasonable, but we affirm.

Sajous also argues his trial counsel was ineffective, but we decline to review that

issue at this juncture.

Sajous contends that his information “mischarged . . . possession of access

devices” because his crime involved possessing social security numbers and other

means of identification, but Sajous waived this nonjurisdictional challenge to his

information. A plea of guilty entered knowingly and voluntarily waives all

nonjurisdictional defects in the proceeding, including “allegations concerning the

invalidity of the information,” Howard v. United States, 420 F.2d 478, 480 (5th

Cir. 1970), and Sajous concedes that he pleaded guilty to the information. “So long

as [an] indictment charges the defendant with violating a valid federal statute as

enacted in the United States Code, it alleges an ‘offense against the laws of the

United States’ and . . . invokes the district court’s subject-matter jurisdiction.”

United States v. Brown, 752 F.3d 1344, 1354 (11th Cir. 2014). Because Sajous’s

information cites section 1092(a)(3) and tracks its language that he “did

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knowingly, and with intent to defraud, possess fifteen (15) or more unauthorized

access devices,” it empowered the district court to act on the information. See id.

Sajous waived his nonjurisdictional challenge to the validity of his information

when he entered his plea of guilty.

Sajous argues that he pleaded guilty based on “misinform[ation]” from his

trial counsel, but we ordinarily will not consider a claim of ineffective assistance of

counsel on direct appeal. The district court should be given the first opportunity to

address Sajous’s allegation of ineffectiveness and to develop the record. See

United States v. Bender, 290 F.3d 1279, 1284 (11th Cir. 2002). Sajous can present

his argument in a postconviction motion. See 28 U.S.C. § 2255.

Sajous argues that the government breached the plea agreement by failing to

recommend at sentencing that he receive a sentence at the low end of his guideline

range. Because Sajous raises this argument for the first time on appeal, he must

prove that an error occurred that is plain and that affected his substantial rights. See

Puckett v. United States, 556 U.S. 129, 140–43 (2009); United States v. Romano,

314 F.3d 1279, 1281 (11th Cir. 2002). The district court referenced the low-end

recommendation during the guilty plea colloquy, and that recommendation was

included in Sajous’s presentence investigation report, which the district court

adopted at sentencing. Sajous cites no binding precedent holding that the failure of

the government to request that the defendant receive a favorable sentence when its

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position was already known by the district court constitutes plain error. See United

States v. Hoffman, 710 F.3d 1228, 1232 (11th Cir. 2013). Additionally, at

sentencing, the government supported Sajous’s request for a downward variance,

which would have been more beneficial to Sajous than what he was promised in

the plea agreement. The government also moved to reduce Sajous’s sentence based

on his substantial assistance, see Fed. R. Crim. P. 35(b), which resulted in the

reduction of his sentence from 108 months to 52 months. And, even if we were to

assume that the government plainly erred, Sajous cannot prove that the lack of a

recommendation for a low-end sentence affected his substantial rights. See Puckett,

556 U.S. at 142. The district court stated at sentencing that, “even if the

Government had argued for the lowest end of the advisory guideline range, [it]

would not have granted [that relief].”

Sajous also fails to establish that the government erred, much less plainly

erred, by failing to introduce evidence that a cohort, not Sajous, used the personal

identification information discovered in Sajous’s residence. Sajous fails to cite any

statute, binding precedent, or provision in his plea agreement that obligated the

government to introduce evidence about his cohort’s conduct. See id. Sajous argues

that he was denied due process as contemplated under Federal Rule of Criminal

Procedure 32, but he availed himself of the opportunity to object to his presentence

investigation report and submitted a sworn statement in which his cohort admitted

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that he, not Sajous, used the stolen identification information, see Fed. R. Crim. P.

32(f), (i). The district court had before it information about Sajous’s cohort when it

selected Sajous’s sentence.

Finally, Sajous’s challenge to the procedural reasonableness of his sentence

is barred by the sentence appeal waiver in his plea agreement. The written

agreement provided that Sajous “waives all rights . . . to appeal any sentence

imposed . . . or to appeal the manner in which the sentence was imposed, unless the

sentence exceeds the maximum permitted by statute or is the result of an upward

departure and/or an upward variance from the advisory guideline range that the

Court establishes at sentencing.” The district court explained the waiver to Sajous

during the change of plea hearing, and Sajous acknowledged at that hearing that he

had agreed to waive his right to appeal his sentence. See United States v. Grinard-

Henry, 399 F.3d 1294, 1296 (11th Cir. 2005). Sajous knowingly and voluntarily

waived the right to appeal the procedural reasonableness of his sentence.

We AFFIRM Sajous’s conviction and sentence.

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