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

Defendant Alan Sajous pleaded guilty to possessing 15 or more unauthorized access devices in violation of 18 U.S.C. § 1029(a)(3) and was sentenced to 52 months’ imprisonment after a Rule 35(b) reduction from 108 months.
Sajous filed an out-of-time appeal raising several arguments for the first time: invalid information, government breach of the plea agreement, government’s failure to introduce favorable evidence at sentencing, procedural unreasonableness of the sentence, and ineffective assistance of counsel.
The information tracked the statute’s language alleging Sajous knowingly possessed 15+ unauthorized access devices.
At sentencing the district court had the presentence report (which included a government low-end recommendation) and considered a sworn statement implicating a cohort in using the identification information found at Sajous’s residence.
The plea agreement contained an appellate waiver of most sentence-related appeals; the court explained and Sajous acknowledged the waiver during the plea colloquy.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Validity of the information	Information mischarged because offense involved SSNs/IDs, not access devices	Information cites and tracks § 1029(a)(3); plea waived nonjurisdictional challenges	Waived by guilty plea; information valid to invoke jurisdiction
Ineffective assistance of counsel	Plea was based on counsel misinformation	Ineffective-assistance claims should be addressed first by district court	Declined to consider on direct appeal; remediable via § 2255 postconviction motion
Government breach of plea agreement	Gov’t failed to recommend low-end guideline sentence as promised	Any omission was not plain error; court knew government position and government supported downward variance and moved under Rule 35(b)	No plain error; lack of recommendation did not affect substantial rights
Government’s failure to introduce favorable evidence at sentencing	Gov’t should have proved cohort, not Sajous, used stolen IDs	No statute, precedent, or plea term required gov’t to present such evidence; court had defendant’s objections and cohort statement	No error; district court considered cohort information
Procedural reasonableness / appellateability of sentence	Sentence procedurally unreasonable	Plea agreement includes valid appellate waiver of sentence challenges, and waiver was knowingly made	Appeal barred by sentence-appeal waiver; waiver enforceable

Howard v. United States, 420 F.2d 478 (5th Cir. 1970) (guilty plea waives nonjurisdictional defects including challenges to the information)
United States v. Brown, 752 F.3d 1344 (11th Cir. 2014) (indictment/ information that cites a valid federal statute invokes subject-matter jurisdiction)
United States v. Bender, 290 F.3d 1279 (11th Cir. 2002) (ineffective-assistance claims ordinarily addressed first by the district court)
Puckett v. United States, 556 U.S. 129 (2009) (plain-error standard requires showing of error that affected substantial rights)
United States v. Romano, 314 F.3d 1279 (11th Cir. 2002) (procedural default/plain error principles on appeal)
United States v. Hoffman, 710 F.3d 1228 (11th Cir. 2013) (no binding precedent that government’s failure to request a promised recommendation when court already knew the government’s position is plain error)
United States v. Grinard-Henry, 399 F.3d 1294 (11th Cir. 2005) (validity and enforceability of appellate waivers explained)