United States v. Gonczy, 357 F.3d 50 (1st Cir. 2004). · Go Syfert
United States v. Gonczy, 357 F.3d 50 (1st Cir. 2004). Cases Citing This Book View Copy Cite
“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 the sentence; no limitation can be placed, by agreement or otherwise, on this information.”
103 citation events (101 in the last 25 years) across 10 distinct courts.
Strongest positive: United States v. Ubiles-Rosario (ca1, 2017-08-16)
Treatment trajectory · 2005 → 2026 · click a year to view as-of
2005 2015 2026
Top citers, strongest first. 30 distinct citers. How cited ↗
examined Cited as authority (verbatim quote) United States v. Ubiles-Rosario (3×) also: Cited as authority (rule), Cited "see"
1st Cir. · 2017 · quote attribution · 1 verbatim quote · confidence high
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 the sentence; no limitation can be placed, by agreement or otherwise, on this information.
examined Cited as authority (verbatim quote) United States v. Reyes-Santiago (2×) also: Cited as authority (rule)
1st Cir. · 2015 · signal: see · quote attribution · 1 verbatim quote · confidence high
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.
discussed Cited as authority (rule) United States v. Melendez-Rivera (2×)
1st Cir. · 2025 · confidence medium
United States v. Gonczy, 357 F.3d 50, 54 (1st Cir. 2004).
examined Cited as authority (rule) United States v. Castillo (4×) also: Cited "see", Cited "see, e.g."
1st Cir. · 2025 · confidence medium
United States v. Gonczy, 357 F.3d 50, 54 (1st Cir. 2004).
discussed Cited as authority (rule) United States v. Acevedo-Osorio
1st Cir. · 2024 · confidence medium
While there is no "magic formula" for evaluating claims of breach, United States v. Gonczy, 357 F.3d 50, 54 (1st Cir. 2004), the government's "overall conduct must be reasonably consistent with making [the agreed-upon] recommendation, rather than the reverse," United States v. Canada, 960 F.2d 263, 269 (1st Cir. 1992).
discussed Cited as authority (rule) United States v. Burgos-Balbuena (2×)
1st Cir. · 2024 · confidence medium
United States v. Gonczy, 357 F.3d 50, 54 (1st Cir. 2004).
examined Cited as authority (rule) United States v. Luis Davis (3×)
3rd Cir. · 2024 · confidence medium
For instance, in United States v. Gonczy, the prosecutor noted that Gonczy had defrauded “innocent victims” and “ruined many lives,” including “the lives of his own children,” through an illegal telemarketing scheme. 357 F.3d 50, 53 (1st Cir. 2004).
discussed Cited as authority (rule) United States v. Aponte-Colon
1st Cir. · 2024 · confidence medium
And because there is "'[n]o magic formula' for assessing whether a prosecutor has complied with a sentencing recommendation in a plea agreement[,] . . . we examine the totality of the circumstances to determine whether 'the prosecutor's overall conduct [was] . . . reasonably consistent with making such a recommendation, rather than the reverse.'" Ubiles-Rosario, 867 F.3d at 283 (first alteration in original) (quoting United States v. Gonczy, 357 F.3d 50, 54 (1st Cir. 2004)).
discussed Cited as authority (rule) United States v. Mojica-Ramos
1st Cir. · 2024 · confidence medium
Discussion A. Mojica's Prosecutorial Breach Claim "If a proper objection is brought before the district court, breaches of plea agreements present questions of law for plenary review." United States v. Gonczy, 357 F.3d 50, 52 (1st Cir. 2004).
discussed Cited as authority (rule) United States v. Cortes-Lopez (2×)
1st Cir. · 2024 · confidence medium
When previously presented with this type of claim on appeal, this court has examined government conduct in its conveyance of a plea agreement and has explained when its actions have fallen short: The government presented the parties' sentence recommendation but undercut it by making "grudging and apologetic" references to the plea agreement and emphasizing the defendant's roles in the offense before urging the court to impose a lengthy sentence, Canada, 960 F.2d at 269 ; the government -- in its sentencing memorandum -- opposed an agreed-to acceptance-of- responsibility adjustment to the guide…
discussed Cited as authority (rule) United States v. Brown (2×) also: Cited "see"
1st Cir. · 2022 · signal: cf. · confidence medium
Cf. Gonczy, 357 F.3d at 54 (holding that the government breached its promise in a plea agreement to seek a low-end sentence by requesting a low-end sentence "at a minimum" and "undercut[ting], if not eviscerat[ing]," the initial recommendation (emphasis added)).
discussed Cited as authority (rule) United States v. Farmer
1st Cir. · 2021 · confidence medium
In evaluating whether a prosecutor has complied with a sentencing recommendation in a plea agreement, "we examine the totality of the circumstances[] to determine whether 'the - 18 - prosecutor's overall conduct is reasonably consistent with making such a recommendation, rather than the reverse.'" United States v. Ubiles-Rosario, 867 F.3d 277, 283 (1st Cir. 2017) (quoting United States v. Gonczy, 357 F.3d 50, 54 (1st Cir. 2004)) (internal citation and alterations omitted)).
discussed Cited as authority (rule) United States v. Montanez-Quinones
1st Cir. · 2018 · confidence medium
It cannot be gainsaid that "[a] plea agreement is a binding promise by the government and is an inducement for the guilty plea." United States v. Gonczy, 357 F.3d 50, 53 (1st Cir. 2004) (citing Santobello v. New York, 404 U.S. 257, 262 (1971)).
discussed Cited as authority (rule) United States v. Miranda-Martinez (2×)
1st Cir. · 2015 · confidence medium
On the one hand, several opinions of this court expressly provide that “[t]he government’s review of the facts of the case ... cannot constitute a breach of the plea agreement [when] they [are] relevant to the court’s imposition of sentence; no limitation can be placed, by agreement or otherwise] on this information.” United States v. Gonczy, 357 F.3d 50, 53 (1st Cir.2004); see also United States v. Saxena, 229 F.3d 1, 6 (1st Cir.2000) (noting that under 18 U.S.C. § 3661 , “[n]o limitation shall be placed on the information concerning the ' background, character, and conduct of a pe…
discussed Cited as authority (rule) United States v. Gale Rachuy
7th Cir. · 2014 · confidence medium
As support, he points to a ’First Circuit case, United States v. Gonczy, which states that an “objection is sufficiently raised as long as it brings the purported breach of the plea agreement to the district court’s attention.” 357 F.3d 50, 52 (1st Cir.2004).
discussed Cited as authority (rule) Moreno-Espada v. United States
1st Cir. · 2012 · confidence medium
Because a defendant who pleads guilty inescapably waives a number of fundamental constitutional rights, we have warned that “the government is required to meet ‘the most meticulous standards of both promise and performance’ ” when it enters a plea agreement, United States v. Gonczy, 357 F.3d 50, 53 (1st Cir.2004) (quoting United States v. Biggs, 287 F.3d 221 , 224 (1st Cir.2002)), and have articulated a government-held “duty to bring all facts relevant to sentencing to the judge’s attention,” id.
discussed Cited as authority (rule) United States v. Lewis
4th Cir. · 2011 · confidence medium
It is elementary that, “when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” Santobello v. New York, 404 U.S. 257, 262 , 92 S.Ct. 495 , 30 L.Ed.2d 427 (1971); see also Dawson, 587 F.3d at 645 (quoting Santobello); United States v. Gonczy, 357 F.3d 50, 53 (1st Cir.2004) (“[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 m…
discussed Cited as authority (rule) State v. Foster (2×)
Kan. Ct. App. · 2008 · confidence medium
See United States v. Salazar, 453 F.3d 911, 914 (7th Cir. 2006) (citing cases); United States v. Gonczy, 357 F.3d 50, 53-54 (1st Cir. 2004); Wills, 140 Idaho 773 ; Horness, 600 N.W.2d at 299-300 ; State v. Jerde, 93 Wash. App. 774 , 970 P.2d 781 (1999); State v. Williams, 249 Wis. 2d 492, 518-23 , 637 N.W.2d 733 (2002).
discussed Cited as authority (rule) United States v. Salazar, Julian
7th Cir. · 2006 · confidence medium
See, e.g., United States v. Vaval, 404 F.3d 144, 152-54 (2d Cir. 2005) (con- cluding that the government breached its plea agreement when it set forth an argument justifying an upward depar- ture despite provisions prohibiting it from doing so); United States v. Gonczy, 357 F.3d 50, 53-54 (1st Cir. 2004) (conclud- No. 05-1673 5 ing that the government breached its plea agreement when it argued for the agreed-upon term but then noted that “the defendant at a minimum deserves what the Guidelines provide for and those are his just deserts”); United States v. Saling, 205 F.3d 764, 765-67 (5th …
discussed Cited as authority (rule) United States v. Julian Salazar
7th Cir. · 2006 · confidence medium
See, e.g., United States v. Vaval, 404 F.3d 144, 152-54 (2d Cir.2005) (concluding that the government breached its plea agreement when it set forth an argument justifying an upward departure despite provisions prohibiting it from doing so); United States v. Gonczy, 357 F.3d 50, 53-54 (1st Cir.2004) (concluding that the government breached its plea agreement when it argued for the agreed-upon term but then noted that “the defendant at a minimum deserves what the Guidelines provide for and those are his just deserts”); United States v. Saling, 205 F.3d 764, 765-67 (5th Cir.2000) (concluding …
cited Cited as authority (rule) Soto-Lara v. United States
D. Mass. · 2005 · confidence medium
United States v. Gonczy, 357 F.3d 50, 53 (1st Cir.2004) Failure of the government to perform on its promises is a breach of the plea agreement.
cited Cited "see" United States v. Lessard
1st Cir. · 2022 · signal: see · confidence high
See United States v. Gonczy, 357 F.3d 50, 52 (1st Cir. 2004); United States v. Clark, 55 F.3d 9, 14 (1st Cir. 1995); United States v. Canada, 960 F.2d 263, 271 (1st Cir. 1992).
discussed Cited "see" United States v. Davis (2×)
1st Cir. · 2019 · signal: see · confidence high
See Gonczy , 357 F.3d at 52 ; see generally Lee v. Kemna , 534 U.S. 362 , 378, 122 S.Ct. 877 , 151 L.Ed.2d 820 (2002) ("[A]n objection which is ample and timely to bring the alleged federal error to the attention of the trial court and enable it to take appropriate corrective action is ... sufficient to preserve the claim for review.") (emphasis added) (quoting Osborne v. Ohio , 495 U.S. 103 , 125, 110 S.Ct. 1691 , 109 L.Ed.2d 98 (1990) ).
discussed Cited "see" United States v. Delgado-Flores
1st Cir. · 2015 · signal: see · confidence high
See United States v. Gonczy, 357 F.3d 50, 52 (1st Cir.2004) (observing that if a proper objection is brought before the district court, breaches of plea agreements present questions of law for plenary review, but unpreserved arguments are reviewed for plain error).
examined Cited "see" United States v. Almonte-Nunez (3×) also: Cited "see, e.g."
1st Cir. · 2014 · signal: see · confidence high
See United States v. Gonczy, 357 F.3d 50, 53 (1st Cir.2004).
discussed Cited "see" United States v. Garrasteguy
1st Cir. · 2009 · signal: see · confidence high
See United States v. Gonczy, 357 F.3d 50, 52 (1st Cir.2004)(where defendant objects and district court was aware of objection and underlying reasons, sentencing objection preserved for appellate review). 4 .
cited Cited "see, e.g." United States v. Massachusetts
D. Mass. · 2011 · signal: see also · confidence low
Sept. 12, 2003) (Woodlock, J.) (collecting cases); see also United States v. Gonczy, 357 F.3d 50 (1st Cir.2004), Mandate [01-cr-10055, Doc.
discussed Cited "see, e.g." State v. Miller.
Haw. · 2010 · signal: see also · confidence low
For example, in Barnes , the Sixth Circuit did not hesitate to notice the breach as plain error, while at the same time emphasizing that the error did not reflect on the circuit court judge. 278 F.3d at 647 (“We emphasize that this is in no sense to question the fairness of the sentencing judge; the fault here rests on the prosecutor, not on the sentencing judge.” (Emphasis added.) (Citations omitted.)); see also United States v. Gonczy, 357 F.3d 50 , 52 n. 1 (1st Cir.2004) (reviewing for plain error despite noting that “[a] breach of a plea agreement is deemed a violation of that agreem…
discussed Cited "see, e.g." United States v. E.V.
8th Cir. · 2007 · signal: see also · confidence medium
See, e.g., United States v. Keller, 413 F.3d 706, 708 (8th Cir. 2005) (finding no breach of plea agreement where prosecutor, when asked by the district court about agreed-upon base offense level, responded that the government was bound to its agreement and therefore had nothing to add); see also United States v. Gonczy, 357 F.3d 50, 53 (1st Cir. 2004) (duty to bring facts to judge’s attention “coexists with the government’s duty to abide by a plea agreement”). -11- however, well established that we may affirm a sentence on any grounds supported by the record,” and, notwithstanding th…
discussed Cited "see, e.g." United States v. E.V.
8th Cir. · 2007 · signal: see also · confidence medium
See, e.g., United States v. Keller, 413 F.3d 706, 708 (8th Cir.2005) (finding no breach of plea agreement where prosecutor, when asked by the district court about agreed-upon base offense level, responded that the government was bound to its agreement and therefore had nothing to add); see also United States v. Gonczy, 357 F.3d 50, 53 (1st Cir.2004) (duty to bring facts to judge’s attention "coexists with the government's duty to abide by a plea agreement”). 13 .
Retrieving the full opinion text from the archive…
UNITED STATES of America, Appellee,
v.
Donald L. GONCZY, Defendant, Appellant
02-2399.
Court of Appeals for the First Circuit.
Feb 2, 2004.
357 F.3d 50
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.
Torruella, Cyr, Oberdorfer.
Cited by 40 opinions  |  Published
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.

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[*52] 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, 92 S.Ct. 495; 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 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 Gonezy therefore waived his objections. We see it differently.

The government’s argument fails not only because Gonezy’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:

Your Honor, I object to the government characterizing that what should proceed in this [cjourt 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] re[*53] marks 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 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, 92 S.Ct. 495, 30 L.Ed.2d 427 (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 Gonezy’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 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, 92 S.Ct. 495. 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[*54] conducted by the Florida Department of Law Enforcement, the 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-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 (“[satisfying 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 [e]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 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.

1

. Gonezy argued that there were two issues on appeal: whether the plea agreement was breached, and whether the district judge erred in sentencing Gonezy. 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, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971).