United States v. Alan Rene Sajous , 704 F. App'x 823 ( 2017 )

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[DO NOT PUBLISH]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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