In the
United States Court of Appeals
For the Seventh Circuit

No. 00-1408

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOHN WARDA,

Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 92 CR 134--Thomas J. Curran, Judge.

ARGUED APRIL 3, 2001--DECIDED April 1, 2002



  Before POSNER, KANNE, and ROVNER, Circuit
Judges.

  ROVNER, Circuit Judge. The district
court vacated John Warda’s sentence for
narcotics conspiracy after a separate
charge of escape, the pendency of which
had affected the terms of his plea on the
conspiracy charge, was dismissed.
However, on re-sentencing, the court
ordered Warda to serve a prison term five
months longer than his original sentence.
Warda contends that the dismissed escape
charge tainted his conviction, and that
the district court should have allowed
him to withdraw his guilty plea.
Alternatively, Warda argues that the
district court was precluded from re-
sentencing him to a longer term of
incarceration and that the court acted
vindictively in doing so. We affirm.

I.

  A 1992 indictment charged Warda with
conspiring to possess with the intent to
distribute more than five kilograms of
cocaine. Federal marshals arrested Warda
in Florida and returned him to the
Eastern District of Wisconsin following
an unsuccessful escape attempt.

  Warda signed a written plea agreement
with the government on December 1, 1993,
and in accordance with the agreement
pleaded guilty to the conspiracy charge
on that same date. Warda also agreed to
lend the government assistance with
ongoing investigations, and in
anticipation that Ward’s assistance might
turn out to be substantial, the parties
persuaded the district court to postpone
his sentencing until September 7, 1994.
One week before he was to be sentenced,
however, Warda broke out of the Ozaukee
County Jail (where he had been
transferred when his efforts to escape
another facility came to light) and fled
the country. He was apprehended in Mexico
in January 1995, and one year later he
was extradited to the United States.

  Upon his return to Wisconsin, a grand
jury indicted Warda for the crime of
escape, see 18 U.S.C. sec. 751(a), and in
late March 1996, Warda entered into a
plea agreement addressing that charge, as
well as an addendum to his 1993 plea
agreement regarding the conspiracy
charge. The former agreement provided,
among other things, that the government
would urge the district court to sentence
Warda to the maximum prison term
specified by the Sentencing Guidelines,
such term to be served consecutively to
his sentence on the conspiracy charge.
The government also agreed, however, to
supply information regarding Warda’s
cooperation to the United States Attorney
in the Northern District of Illinois,
where yet another charge against Warda
was pending, and not to refer for
prosecution the family members who had
helped Warda while he was a fugitive. In
compliance with this agreement, Warda
pleaded guilty to the escape charge
before Judge Warren on March 29, 1996.
The addendum to the 1993 conspiracy plea
agreement, on the other hand, provided
that in exchange for Warda’s guilty plea
on the escape charge, the government
would recommend a sentence on the
conspiracy charge at the low end of the
applicable sentencing range. Pursuant to
the addendum, Warda agreed to withdraw
all objections to the pre-sentence report
("PSR") that the Probation Office had
prepared in anticipation of his
sentencing on that charge. Warda
subsequently honored this obligation and
withdrew his objections to the PSR. See
R. 96 at 3-4.

  On March 29, 1996, Judge Curran
sentenced Warda on the conspiracy charge.
The government, as it had agreed,
recommended that the judge sentence Warda
to a prison term of 188 months--the low
end of the Guidelines range. However,
Judge Curran rejected that
recommendation. He reasoned that in view
of the sentences he had imposed on
Warda’s co-conspirators, the length of
time Warda had been involved in the
conspiracy, Warda’s role as a major
supplier of cocaine to the organization,
and Warda’s belated demonstration of
remorse, the proposed sentence was too
lenient. See R. 96 at 13,15-17. He
ordered Warda to serve a term of 220
months in prison.

  Subsequently, an obstacle to prosecution
of the escape charge arose that
ultimately resulted in the dismissal of
that charge. The 1978 extradition treaty
between Mexico and the United States
contains a provision referred to as the
Rule of Specialty, which does not allow
the country to which an individual is
extradited to prosecute that person for a
crime unless the extraditing nation has
expressly authorized such a prosecution.
It turned out that Mexico, when it made
the decision to extradite Warda, had not
authorized the United States to prosecute
him for escape. It withheld such consent
because it did not view the circumstances
of Warda’s flight as meeting the criteria
for the felony offense of escape under
Mexican law. Neither the United States
Attorney nor the district court was
apprised of this impediment to
prosecution until after Warda had already
pleaded guilty to the escape charge.
Through diplomatic channels, the
Department of Justice sought a waiver of
the Rule of Specialty, but Mexico
declined the request. On August 13, 1997,
Judge Warren granted the government’s
motion to dismiss the escape charge.

  In April 1997, anticipating the
dismissal of the escape charge, Warda
filed a motion requesting Judge Curran to
vacate, set aside, or correct his
sentence on the conspiracy charge
pursuant to 28 U.S.C. sec. 2255. In
pertinent part, Warda contended that his
attorney had failed to represent him
effectively when, in order to resolve the
escape charge, he advised Warda to, inter
alia, sign the addendum (and thereby
relinquish his objections to the
conspiracy PSR), apparently without
realizing that the extradition treaty
precluded the government from prosecuting
Warda on that charge./1

  Although the district court did not
believe that Warda had been deprived of
his right to the effective assistance of
counsel, the court nonetheless vacated
Warda’s sentence. Judge Curran thought
that it would place too great a burden on
a defense attorney to insist that he
investigate the terms of international
treaties. Still, Warda had agreed to sign
the addendum to his plea agreement in the
conspiracy case based on the mistaken
belief that the escape charge was valid.
The legal impediment to the escape charge
had not become apparent until after he
was sentenced and the time in which to
appeal had expired, so Warda had cause
for failing to challenge the addendum and
his sentence in a more timely fashion. At
the same time, Warda had agreed to
surrender his objections to the PSR in
compliance with the addendum, and in that
respect had suffered prejudice.
Accordingly, the court recognized Warda’s
belated challenge to his sentence, and
granted him a re-sentencing. The court
ordered the Probation Department to
prepare an update to the PSR and gave
both parties the opportunity to file
objections.

  Warda took full advantage of the
opportunity to raise objections to the
PSR. Warda’s counsel filed an eighteen-
page memorandum identifying twelve
separate objections. R. 130. Among other
things, Warda argued that the PSR
exaggerated his role in the conspiracy,
that he was entitled to an offense-level
reduction based on his limited
involvement in the conspiracy, see
U.S.S.G. sec. 3B1.2, that he was
responsible for a lesser quantity of
cocaine than the fifteen to fifty
kilograms attributed to him in the PSR,
that his offense level should not be
increased for obstruction of justice, see
U.S.S.G. sec. 3C1.1, that he was entitled
to a decrease in his offense level for
acceptance of responsibility, see
U.S.S.G. sec. 3E1.1, that his offense
level should be reduced further pursuant
to the safety-valve provision of the
Guidelines, see U.S.S.G. sec.
2D1.1(b)(6), and that he was entitled to
credit for providing substantial
assistance to the government, see
U.S.S.G. sec. 5K1.1.

  Warda also filed a motion to withdraw
his guilty plea. In that motion, Warda
repeated a number of arguments that he
had made in his section 2255 motion and
that the district court had rejected. See
n. 1, supra. He also argued that the
addendum to his plea agreement, based as
it was on the escape charge, tainted his
guilty plea and entitled him to withdraw
that plea.

  On February 3, 2000, the court re-
sentenced Warda. Finding that Warda had
not identified a fair and just reason why
he should be allowed to withdraw from his
plea agreement, see Fed. R. Crim. P.
32(e), the court denied the motion to
withdraw his guilty plea. R. 148 at 7.
The court noted that the addendum, which
Warda believed had tainted the plea
agreement, was now a "nullity" in view of
the fact that the court had ordered a new
sentencing and permitted Warda to make
objections to the PSR. Id. at 3.
Accordingly, the court proceeded with the
sentencing hearing. The court addressed
each of Warda’s objections to the PSR and
where necessary heard testimony from both
the defense and the government in order
to resolve those objections. The court
also heard testimony and argument in
mitigation from the defense, and in
aggravation from the government, which
was no longer bound by the addendum to
recommend a term of incarceration at the
low end of the sentencing range. At the
conclusion of the hearing, the court
ordered Warda to serve a prison term of
225 months-- the top of the applicable
sentencing range.

  The court explained that it was imposing
a higher sentence upon Warda than it had
previously for a number of reasons and
based on additional information not
available to the court at the time of his
original sentencing. R. 148 at 200.
First, it had come to light that Warda
had lied under oath at his change of plea
hearing with respect to the extent of his
education. Id. at 197. Previously, Warda
had represented to the court that he had
completed high school and had had some
college-level instruction. At his second
sentencing however, Warda’s counsel
disclosed that Warda had not completed
his high school education until he began
serving his prison term on the conspiracy
conviction. See id. at 182, 183.
Similarly, when first sentenced, Warda
had denied any prior abuse of drugs or
alcohol; but in preparation for his
second sentencing, he acknowledged having
abused both from 1989 to 1992. See id. at
10. Further, in his section 2255 motion,
Warda had also contradicted the
representations he had made at the time
of his guilty plea--in particular, that
he had not been induced to plead guilty
based on any promises not contained in
the written plea agreement, and that his
guilty plea was knowing and voluntary.
Id. at 197-98; see n. 1, supra. Finally,
several weeks after he was originally
sentenced in 1996, Warda had testified at
the trial of Thomas Mavridis, an attorney
and friend who had been indicted for
assisting Warda in escaping from the
Ozaukee County Jail. See United States v.
Mavridis, 114 F.3d 1192 (7th Cir. 1997)
(unpublished), text in Westlaw, 1997 WL
284607. Judge Curran had presided over
that trial. Judge Curran found that Warda
had perjured himself on that occasion as
well. Id. at 200.

  As I stated before, there are so many
contradictory examples here that the
court is not going to take the time at
this late hour to go into them, but I do
find that I have learned additional
information that I didn’t possess at the
time of your original sentencing . . . .

  Everything else that I’ve learned today
is bad for you, even to the point of
where you now admit that you have abused
alcohol and other drugs during 1989 to
1992, and particularly the fact that you
perjured yourself in the Mavridis trial.

  Frankly, I had been very tempted to
recommend to the United States Attorney’s
office that they pursue an investigation
after that trial was over, but determined
that perhaps, as your mother has said,
the court could extend some pity to a man
who has made a mistake.

  The problem is that you didn’t just make
a mistake, you made hundreds of mistakes
and compounded them, and you caused great
devastation among many families, many
children, both economically and
physically.

  It is for that reason that the court,
after giving careful consideration today
to what has been offered, has determined
that based upon this new information,
that the court can no longer impose the
same sentence.

Id. at 200-01.

II.

  At this juncture, Warda challenges his
conviction and sentence on two grounds.
Warda contends that his conviction is
invalid based on the government’s
"injection" of the escape charge into the
conspiracy plea agreement via the March
1996 addendum to that agreement. Warda
Br. at 10. Alternatively, Warda contends
that his new sentence is invalid because
it is more harsh than his first. Having
already been sentenced once, Warda
reasons, he had a reasonable expectation
of finality in the length of his prison
term that precluded the court from
imposing anything but an equal or lesser
term of incarceration upon re-sentencing.
That the court nonetheless ordered him to
serve a longer period of incarceration
after he had succeeded in having his
first sentence vacated evinces
vindictiveness, in Warda’s eyes.

A. Warda was not denied the benefit of his
plea agreement

   Warda entered into the 1996 addendum to
his 1993 plea agreement as to the
conspiracy charge based on his
intervening indictment for the crime of
escape. That addendum, along with the
separate plea agreement concerning
theescape charge, were a package intended
to resolve the conspiracy and escape
charges together. As it turned out,
however, the terms of extradition treaty
with Mexico, coupled with the Mexican
government’s decision not to authorize a
prosecution for escape, precluded the
government from prosecuting Warda for
that offense. Thus, the assumption
underlying the addendum--that the escape
charge was valid--was wrong. By the time
the error came to light, however, Warda
had already been sentenced on the
conspiracy charge, and in keeping with
the terms of the addendum, Warda had
foregone his objections to the pre-
sentence report. Given the invalidity of
the escape charge, Warda argues, he was
deprived of the benefit of his original
plea bargain on the conspiracy charge,
and the district court was obligated to
accede to his request to withdraw his
guilty plea. We review the court’s
decision to deny Warda’s motion to
withdraw his plea for abuse of
discretion. E.g., United States v.
Wallace, 276 F.3d 360, 366 (7th Cir.
2002).

  The district court did not abuse its
discretion. In view of the court’s
decision to re-sentence Warda, we do not
agree that Warda ultimately was deprived
of the benefit of his original bargain
with the government. The district court
acknowledged that the addendum to the
1993 plea agreement was based on a
separate charge for escape that turned
out to be invalid. The court further
acknowledged that in accepting the
addendum to his plea agreement, Warda had
surrendered his right to object to the
probation officer’s PSR. But as Judge
Curran recognized, a new sentencing
hearing sufficed to correct any detriment
that Warda had suffered as a result of
the ill-fated escape charge. Warda’s
original sentence was vacated, he was
given an opportunity to object to the
PSR--of which he took full advantage--and
he was re-sentenced with the
misunderstanding as to the viability of
the escape charge having been resolved.
These steps restored to Warda any and all
rights of which he had been deprived by
virtue of the 1996 addendum. The district
court was not obliged to take the
additional step of allowing Warda to
withdraw his guilty plea. Warda made the
decision to plead guilty in 1993, well
before he escaped and long before the
escape charge resulted in the 1996
addendum to the plea agreement. Once
Warda was released from the addendum, he
was restored to his original bargain with
the government. Indeed, although he
argues that "[g]ranting Mr. Warda
resentencing did not fully alleviate the
problems associated with this plea . .
.," Warda Reply Br. at 1, Warda has
identified no concrete respect in which
the effects of the invalid escape charge
lingered once the district court had
granted him a new sentencing with the
accompanying right to make objections to
the PSR. Cf. United States v. Carr, 170
F.3d 572, 576 (6th Cir. 1999) (where
trial court has sentenced defendant in
violation of previously approved plea
agreement, proper remedy is a new
sentencing hearing where defendant can be
re-sentenced in accordance with that
agreement; only if court cannot do this
should it permit defendant to withdraw
plea), cert. denied sub nom. Snyder v.
United States, 527 U.S. 1028, 119 S. Ct.
2381 (1999).

B. The district court did not act
vindictively in sentencing Warda to a
longer prison term

  Warda makes two related challenges to
the lengthier sentence that the district
court imposed on re-sentencing. First,
Warda contends that he had a reasonable
expectation of finality in his original
sentence and that, as a consequence of
that expectation, the Fifth Amendment’s
double jeopardy bar precluded the
district court from ordering him to serve
a longer term than the court had first
ordered him to serve. See, e.g., United
States v. Foumai, 910 F.2d 617, 619-20
(9th Cir. 1990) ("the double jeopardy
clause prohibits augmentation of a
criminal sentence when it would violate
the defendant’s reasonable expectation of
finality"). Second, Warda argues that the
district court’s decision to impose a
harsher sentence than it did originally
gives rise to a presumption that the
court acted vindictively, and that the
court failed to articulate reasons for
imposing the longer sentence that are
sufficient to rebut that presumption,
thus establishing a violation of his due
process rights. See North Carolina v.
Pearce, 395 U.S. 711, 726, 89 S. Ct.
2072, 2081 (1969).

  We do not agree, in the first instance,
that the double jeopardy clause required
the district court on re-sentencing to
impose a prison term either shorter than,
or at most, the same as, the term that
the court originally ordered Warda to
serve. As the Supreme Court observed in
United States v. DiFrancesco, 449 U.S.
117, 137, 101 S. Ct. 426, 437 (1980),
"[t]he Double Jeopardy Clause does not
provide the defendant with the right to
know at any specific moment in time what
the exact limit of his punishment will
turn out to be." See also Pennsylvania v.
Goldhammer, 474 U.S. 28, 30, 106 S. Ct.
353, 353-54 (1985). Here, it was Warda
who asked the district court to vacate
his original sentence pursuant to section
2255. He sought that relief on the
premise that he had been induced to
accept the 1996 addendum to his plea
agreement by his indictment for the
offense of escape, a charge which,
unbeknownst to him, was foreclosed by the
terms of his extradition. When the court
granted Warda’s request for relief in the
form of a re-sentencing, it not only
wiped the slate clean of the original
sentence, but also lifted the constraints
that the addendum had imposed on each
party. Warda was no longer precluded from
making objections to the PSR, and the
government was no longer obligated to
recommend a sentence at the bottom of the
applicable sentencing range. The
sentencing process itself changed, in
other words. Under these circumstances,
Warda could not have had any reasonable
expectation that his first sentence
established a ceiling on the potential
punishment that he could receive. See
United States v. Moulder, 141 F.3d 568,
571-72 (5th Cir. 1998) (defendants’
successful effort, based on intervening
Supreme Court decision, to vacate
convictions on firearms charges to which
they had pleaded guilty did not foreclose
the subsequent imposition of longer
sentences on narcotics charges that
government pursued upon vacation of
firearms convictions); see also United
States v. Smith, 103 F.3d 531, 535 (7th
Cir. 1996) (district court was not
precluded from re-sentencing defendant to
increased term on surviving counts of
conviction after granting defendant’s
motion to vacate conviction on firearms
charge, notwithstanding fact that
defendant had already completed his
original sentence on the surviving
counts), cert. denied, 520 U.S. 1248, 117
S. Ct. 1861 (1997).

  Nor do we find that the imposition of a
lengthier term bespeaks vindictiveness on
the part of the sentencing judge. "To
punish a person because he has done what
the law plainly allows him to do is a due
process violation ’of the most basic sort.’"
United States v. Goodwin, 457 U.S. 368,
372, 102 S. Ct. 2485, 2488 (1982),
quoting Bordenkircher v. Hayes, 434 U.S.
357, 363, 98 S. Ct. 663, 668 (1978). Yet,
we may presume such vindictiveness, as
Warda argues that we should, only when
the circumstances underlying the re-
sentencing give rise to "a ’reasonable
likelihood’ . . . that the increase in
sentence is the product of actual
vindictiveness on the part of the
sentencing authority." Alabama v. Smith,
490 U.S. 794, 799, 109 S. Ct. 2201, 2205
(1989), quoting Goodwin, 475 U.S. at 373,
102 S. Ct. at 2488. The classic instance
triggering the presumption is the one in
which the same judge tries and sentences
a person for a second time after he has
succeeded in having his original
conviction reversed. E.g., Pearce, 395
U.S. at 725-26, 89 S. Ct. at 2080-81; see
Smith, 490 U.S. at 798-99, 109 S. Ct. at
2204. We are not convinced that the facts
of this case present such a scenario. As
we have noted, the relief that Warda
obtained by virtue of his section 2255
motion was not simply a re-sentencing,
but re-sentencing based on a materially
different record. When sentenced for the
second time, Warda objected to many
facets of the PSR, and in fact presented
substantial evidence in support of his
objections. Pursuant to the addendum to
his plea agreement, Warda had pursued
none of these objections when he was sen
tenced for the first time. The
government, for its part, no longer
argued for a sentence at the low end of
the sentencing range, and presented
substantial evidence in response to
Warda’s objections and in an effort to
justify a prison term greater than the
188 months it had originally proposed. In
short, Judge Curran re-sentenced Warda in
2000 against a backdrop materially
different from the one present in 1996.
See id. at 801-02, 109 S. Ct. at 2205-06.
The difference is highlighted by the fact
that the original sentencing hearing in
1996 barely took forty-five minutes,
whereas the second hearing in 2000 took
the better part of a day. Compare R. 96
with R. 148. His decision to impose a
sentence longer by five months than the
first sentence he imposed therefore does
not reasonably suggest that the disparity
was due to vindictiveness.

  Even assuming, arguendo, that the
circumstances would support a presumption
of vindictiveness, Judge Curran
articulated reasons for the increased
sentence, based on objective information
regarding Warda’s conduct, which were
sufficient to rebut that presumption. See
Pearce, 395 U.S. at 726, 89 S. Ct. at
2081. The judge expressly found that the
longer sentence was justified by the new
information made available to him on re-
sentencing, noting that Warda previously
had lied about his education, failed to
disclose his history of drug and alcohol
abuse, had contradicted his statements
under oath regarding the knowing and
voluntary nature of his guilty plea and,
in particular, had perjured himself at
the trial of attorney Mavridis. R. 148 at
197-201. Warda contests neither the
accuracy nor the pertinence of the
court’s findings with respect to these
inconsistencies. We believe that these
findings are more than sufficient to
justify a five-month increase in the
sentence that the court imposed on Warda,
and thus to dispel any suggestion of
vindictiveness.

III.

  For the reasons we have discussed, we
conclude that the district court did not
abuse its discretion in declining to
permit Warda to withdraw his guilty plea.
We further find that the district court
was entitled to impose a lengthier
sentence on Warda upon re-sentencing, and
that the court’s decision to do so was
not due to any vindictiveness on the
court’s part. We therefore AFFIRM Warda’s
conviction and sentence.

FOOTNOTE

/1 Warda sought to vacate his sentence and convic-
tion on other grounds as well. He asserted that
his attorney had promised him that he would
receive a sentence of less than forty months in
prison in exchange for his guilty plea--a sen-
tence far lower than the one he actually re-
ceived. He further alleged that he was taking
prescribed medications on the day that he entered
his guilty plea that made it difficult for him to
completely understand what transpired during the
change of plea hearing. Warda contended that his
guilty plea was not knowing and voluntary for
these reasons. The district court rejected these
assertions. The court noted that it had taken
"extraordinary measures to insure that the plea
was voluntary, that Mr. Warda was not affected by
his medications, and that he received no promises
other than those contained in the plea agree-
ment." R. 110 at 5.
