U.S. v. Januszewski

• Decision Date: 20 November 1985
• Docket Number: D,No. 289,289
• Parties: UNITED STATES of America, Appellee, v. Allen JANUSZEWSKI, Appellant. ocket 85-1220.
• Court: U.S. Court of Appeals — Second Circuit

Page 108

777 F.2d 108

UNITED STATES of America, Appellee, v. Allen JANUSZEWSKI, Appellant.

No. 289, Docket 85-1220.

United States Court of Appeals, Second Circuit.

Argued Oct. 9, 1985.

Decided Nov. 20, 1985.

Richard A. Fuchs, Bridgeport, Conn., (Koskoff, Koskoff & Bieder, P.C.), for appellant.

Linda K. Lager, Asst. U.S. Atty., Bridgeport, Conn., (Alan H. Nevas, U.S. Atty., D. Conn., of counsel), for appellee.

Before FEINBERG, Chief Judge, VAN GRAAFEILAND and MESKILL, Circuit Judges.

FEINBERG, Chief Judge.

Allen Januszewski appeals from an order of the United States District Court for the District of Connecticut, Jose A. Cabranes, J., which denied Januszewski's motion for reduction or modification of the sentence imposed after his plea of guilty. On appeal, Januszewski claims that the Assistant United States Attorney violated the plea agreement. We find that this is not so, and affirm the order of the district court.

I.

Allen Januszewski was indicted, in a multi-count indictment naming twenty individuals, on one count of conspiracy to distribute cocaine and one count of possession of cocaine with intent to distribute in violation of 21 U.S.C. Secs. 841(a)(1) and 846. He agreed to plead guilty to the conspiracy count. In return, the government agreed to dismiss the substantive count and to make a non-binding sentence recommendation for a sentence "not to exceed six years." The agreement was placed on the record of the plea hearing, at which time appellant indicated that he understood that the government's recommendation was not binding on the court. Several months later, at the sentencing hearing, defense counsel delivered a lengthy argument in support of lenient treatment of his client. He maintained that Januszewski's criminal involvement stemmed from his dependence on drugs and that he only made small sales to friends and that in any event, his drug transactions had not provided him with much money. Counsel suggested that a sentence of three years would be appropriate.

The Assistant United States Attorney then made the statements that appellant claims violated the plea agreement. She strongly opposed the three-year sentence, stating that "nothing less than six years would be an appropriate disposition of this case." She went on to characterize appellant as "a professional drug dealer" and to describe his "central involvement" in the drug operation that was the subject of the indictment.

Judge Cabranes sentenced appellant to a term of ten years imprisonment and a $10,000 fine. Appellant took no appeal. Three months later, however, he petitioned the district court pursuant to Fed.R.Crim.P. 35, seeking reduction or modification of his sentence, primarily on the ground that his drug addiction was responsible for his criminal acts. Judge Cabranes denied the motion. This appeal followed.

II.

As a preliminary matter, the government argues that we are foreclosed from considering a possible violation of the plea agreement on this appeal. In a footnote in its brief, the government contends that the issue was not adequately raised below, since appellant made the claim that the government had not lived up to its bargain only in a short supplemental memorandum supporting the Rule 35 motion, and even then principally in the context of an argument that the government was not sufficiently enthusiastic in support of its recommendation. The government also questions the use of a Rule 35 motion as the vehicle for raising this issue, citing United States v. Corbett, 742 F.2d 173, 178 n. 11 (5th Cir.1984) (per curiam).

It is true that in the district court Januszewski challenged the government's compliance with the plea agreement only briefly and cited a decision offering only indirect support for his present theory, United States v. Benchimol, 738 F.2d 1001 (9th Cir.1984), which was subsequently reversed, --- U.S. ----, 105 S.Ct. 2103, 85 L.Ed.2d 462 (1985) (per curiam). Nevertheless he did raise in the district court the point now made to us. Also, while a Rule 35 motion is not ordinarily the best way to press the issue of compliance with a plea agreement, the claim was joined in the district court with other arguments for which a Rule 35 motion was the proper vehicle. Moreover, there is some precedent for this method of raising plea-bargaining issues. See United States v. Bronstein, 623 F.2d 1327 (9th Cir.), cert. denied, 449 U.S. 842, 101 S.Ct. 122, 66 L.Ed.2d 50 (1980) (violation of plea agreement considered on Rule 35 motion to correct sentence); cf. United States v. Corsentino, 685 F.2d 48, 49-51 (2d Cir.1982) (considering merits of appeal from denial of Rule 35 motion, treated as section 2255 motion). Under the circumstances, therefore, although we share some of the government's procedural concerns, we believe that we should reach the merits of this appeal. United States v. Corbett, supra, relied on by the government, is distinguishable, since it involved an attempt to withdraw a plea, rather than to enforce a plea agreement. See Fed.R.Crim.P. 32(d) ("At any later time [after sentencing], a plea may be set aside only on direct appeal or by motion under 28 U.S.C. Sec. 2255.").

III.

Appellant argues that the prosecutor breached the plea agreement by recommending six years as a minimum, rather than a maximum, sentence and arguing in support of a longer sentence. The agreement is silent as to any statements to be made by the government in support of its recommendation at the sentencing hearing. Nevertheless, appellant argues that the prosecutor's statements effectively negated the bargained-for recommendation of six years or less. Appellant relies on such cases as United States v. Corsentino, supra, 685 F.2d at 51-52 (promise to take no position on sentencing violated by opposition to sentence making defendant eligible for early parole) and United States v. Grandinetti, 564 F.2d 723 (5th Cir.1977) (by expressing doubt as to the propriety and legality of the agreement, prosecutor effectively argued against the agreement). Appellant maintains that Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), requires enforcement of such agreements. He asks that his case be remanded for resentencing before a different district judge.

The record reflects that the prosecutor made the remarks objected to as part of her response to a...