APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. Crim. No. 80-00143)
Before Seitz, Chief Judge, and Van Dusen and Higginbotham, Circuit Judges.
This is an appeal from a final judgment of the district court denying Anthony Ligori's motion for elimination of a $5,000 fine. This court has jurisdiction under 28 U.S.C. § 1291 (1976).
Pursuant to a plea bargain, Anthony Ligori pleaded guilty to one count of a four-count indictment. The Government promised in the plea agreement that:
(It) will make no recommendation as to the sentence to be imposed by the Court, but of course reserves the right to correct any factual inaccuracies contained in the presentence report or that might be made at allocution. The United States further agrees to dismiss the remaining counts of the Indictment ... after the imposition of sentence. There are no other promises made to this defendant in connection with this plea.
The Government made no recommendation at sentencing. Ligori received a seven-year term of imprisonment, to be followed by four years of special parole. In addition, Ligori was ordered to pay a $5,000 fine upon his release from prison.
After sentencing, Ligori filed a motion pursuant to rule 35 of the Federal Rules of Criminal Procedure seeking elimination of the fine because he had not profited from his illegal activity and because his indigency rendered imposition of the fine an extreme financial burden. The Government responded with a letter opposing elimination of the fine and urging the district court to maintain Ligori's original sentence. Ligori then argued that the Government's opposition constituted a violation of the plea agreement. He requested that the rule 35 application be heard by a different judge or, alternatively, that the court "completely disregard the Government's letter."
Ligori's motion was argued before the district court, which refused to transfer the matter to a different judge; the district court noted that it was "not in any way going to consider (the Government's) letter." The court then denied the motion for elimination of the fine, and Ligori filed a notice of appeal.
Ligori argues on appeal that the district court erred when it failed to submit Ligori's motion for reduction of sentence to a different judge after the Government allegedly violated the plea agreement by opposing the motion. Ligori also claims that it was error to deny his motion for elimination of the fine.
It is uncontested that, when Ligori was sentenced, the Government adhered to the terms of the plea bargain. It made no recommendations as to the sentence to be imposed by the district court, and it moved to dismiss the remaining counts of the indictment. Ligori argues, however, that the Government breached the plea agreement when it submitted, ...