In the
United States Court of Appeals
For the Seventh Circuit

No. 01-1236

United States of America,

Plaintiff-Appellee,

v.

Christopher B. Matchopatow,

Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 00-CR-31--Charles N. Clevert, Judge.

Argued June 7, 2001--Decided August 3, 2001


  Before Coffey, Easterbrook, and Rovner,
Circuit Judges.

  Coffey, Circuit Judge. On March 27,
1998, a Menominee Tribal police officer
discovered the body of Mary Tomow, a
Menominee Indian, along Spirt Rock Road
on the Menominee Indian Reservation
located in Wisconsin. After an
investigation, the defendant was charged
in a one-count indictment with the murder
of Mary Tomow. On September 19, 2000,
Christopher Matchopatow pleaded guilty to
one count of second degree murder, 18
U.S.C. sec. 1111(a)./1 Pur-suant to the
plea agreement, Matchopatow waived, among
other things, the right to challenge his
conviction or sentence in any appeal or
post-conviction proceeding, with some
limited exceptions. The district court
imposed a 9-level upward departure in
offense level, pursuant to U.S.S.G. sec.
5K2.8 due to the brutality and heinous
nature of Matchopatow’s crime, though
the government had recommended only a 5-
level upward departure. Matchopatow now
appeals, despite the waiver in his plea
agreement.

I.  Factual Background
  On September, 27, 1998, Menominee Tribal
Police Officer Robert Summers discovered
the partially clothed body of Mary Tomow
along Spirt Rock Road on the Menominee
Indian Reservation approximately 30 yards
off the gravel road in a heavily wooded
area. Tomow’s body had also been severely
burned, with the burned area being
confined to her upper torso, neck and
head. The burns were sufficiently severe
to expose the bone along Tomow’s
shoulder. A medical autopsy revealed that
she had multiple lacerations to the face
and nose and a fracture of the nasal
bone. In addition, Tomow suffered a
depressed and fractured skull. According
to the medical examiner, the cause of
Tomow’s death was blunt-force trauma to
the head.

  The investigation revealed that
Matchopatow, also a Menominee Indian, had
been at the War Bonnet Tavern with
several members of Tomow’s family during
the early morning hours of March 21,
1998. After leaving the tavern,
Matchopatow had driven home several
members of Tomow’s family. Sometime later
that night, Matchopatow returned to
Tomow’s residence. Matchopatow informed
Mary Tomow that he had some beer in his
vehicle and asked her to accompany him to
share the beers. Tomow agreed and, unfor
tunately, did not return from the
excursion with Matchopatow. Not
surprisingly, the government’s
investigation focused on Matchopatow,
even though when first interviewed he
denied having had any contact with Tomow
the night of her disappearance.

  Despite Matchopatow’s initial denial
that he had been with Tomow the night of
her disappearance, the government
continued to investigate him. Pursuant to
a grand jury subpoena, FBI agents
submitted Matchopatow’s DNA to an FBI
crime laboratory, along with semen
samples taken from Tomow’s body. The
government also tested several other
suspects, but the DNA analysis revealed
that the semen taken from Tomow’s body
matched only Matchopatow.

  Ultimately Matchopatow was arrested in
the spring of 2000. Shortly after his
arrest, Matchopatow gave a statement
admitting to the murder of Tomow.
According to Matchopatow, he and the
deceased had driven to Spirit Rock Road,
drank the beer, and engaged in
consensual, unprotected sex. Matchopatow
claimed that afterwards Tomow stated that
she could have him charged with sexual
assault or rape. Matchopatow told the
government that Tomow’s threat upset him
and he retrieved a tire iron from the
truck of his vehicle. He stated that when
Tomow approached him he struck her about
her head three or four times.

  Even though Matchopatow had struck Tomow
several times, he reported that she had
still been alive when she fell to the
ground for she had made noises and had
difficulty breathing. Matchopatow
admitted that he smoked several
cigarettes for approximately ten or
fifteen minutes while standing over
Tomow, as she lay dying. After Tomow
died, Matchopatow dragged her by her
ankles into the woods and left her body.
He claimed not to remember how the
victim’s body was burned. The
government’s investigation revealed that
some type of accelerant was placed upon
the victim’s body and ignited. After
hiding the body, Matchopatow drove home
and disposed of the tire iron along the
roadside. The day after Tomow’s murder,
Matchopatow stated that he had remained
at home, rather than having gone to work,
so that he could clean out his car and
remove any trace of Tomow’s presence.

  After his motion to suppress his
confession was denied, Matchopatow agreed
to plead guilty to one count of second
degree murder, 18 U.S.C. sec. 1111(a).
The plea agreement provided, among other
things, that the government "will
recommend a 5-level upward departure from
the applicable sentencing guideline range
based on the brutality and heinous nature
of the offense, the use of a dangerous
weapon, and the mutilation by burning of
the corpse pursuant to [U.S.S.G.] sec.
5K2.8." The plea agreement further
acknowledged that the defendant
understood and agreed "that neither the
sentencing court nor the United States
Probation Office is a party to or bound
by the agreement . . . [and that] the
sentencing court will make its own
determination regarding any and all
issues relating to the application of the
sentencing guidelines." Most importantly,
Matchopatow agreed in the plea agreement
to waive the right to challenge his
conviction or sentence in any appeal or
post-conviction proceeding except one
based on a punishment in excess of the
statutory maximum, the sentencing court’s
reliance on any constitutionally
impermissible factor, or ineffective
assistance of counsel. The government
reserved the right to support any
decision made by the district court, even
if that decision differed from the
government’s recommendation.

  The district court accepted
Matchopatow’s plea. But rather than
follow the government’s recommendation to
give Matchopatow a 5-level upward
departure under sec. 5K2.8, the court
gave him a 9-level upward departure. The
court noted that the case was:

well outside the heartland of what would
ordinarily be a case of second degree
murder. Mr. Matchopatow’s use of a tire
iron which fractured Miss Tomow’s skull,
his use of an accelerant which charred
the upper portions of [her] body and
face, and [his] concealment of the body
after dragging it into the woods warrants
a very stiff penalty which would be
consistent with the crime which was
committed. The guideline range which I
described [108 to 135 months] cannot
adequately address this type of brutal,
heinous, stomach retching crime . . . .
For each one of the matters which I’ve
touched upon . . . the Court is going to
depart upward three levels for a total of
nine levels in this particular case.

  As a result of the court’s 9-level
upward departure, Matchopatow’s adjusted
offense level was 39, which together with
his criminal history category of II,
yielded a guideline imposed sentencing
range of 292 to 365 months. The district
court then asked whether the parties took
any exception to the court’s finding.

  Matchopatow’s counsel admitted that an
upward departure was warranted, but asked
the court to accept the agreement reached
between the parties and impose only a 5-
level upward departure. In short, counsel
suggested that the penalty with the 9-
level upward departure was as stiff as
the penalty for first degree murder, thus
depriving Matchopatow of the benefit of
his plea.

  The government asked to respond, and the
district court allowed it to do so.
Initially, the government explained that
the statute for first degree murder
imposed a mandatory term of life
imprisonment, and thus even with the
court’s imposition of a 9-level upward
departure, Matchopatow still received a
lesser sentence by pleading guilty to
second degree murder. The government also
concluded briefly that "the Court’s
rationale and basis for its upward
departure is correct and the government
will support that position." The district
court then sentenced Matchopatow to a
term of 360 months imprisonment to be
followed by 5 years of supervised
release. Matchopatow now appeals, arguing
that the district court’s imposition of a
9-level upward departure was an abuse of
discretion.

II.   Discussion

  It is difficult to conceive what the
basis of Matchopatow’s argument is in
view of the fact that he signed a waiver
in which he expressly and unambiguously
waived his right to challenge the
sentence imposed. United States v.
Jemison, 237 F.3d 911, 917 (7th Cir.
2001); United States v. Woolley, 123 F.3d
627, 631-32 (7th Cir. 1997). He admits
that the plea agreement was knowingly and
voluntarily made. United States v.
Joiner, 183 F.3d 635, 644 (7th Cir. 1999)
(deeming right to appeal waived where
defendant did not contend that the plea
was not knowingly or voluntarily made);
United States v. Cavender, 228 F.3d 792,
803 (7th Cir. 2000). Normally, that
should be the end of Matchopatow’s case,
and his appeal dismissed.

  Matchopatow attempts to preserve his
right to appeal by claiming that the
government breached the plea agreement.
In short, Matchopatow contends that when
the government told the district court
that it supported its decision to impose
a 9-level upward departure, it breached
the plea agreement, which required the
government to recommend a 5-level
departure.

  But there are numerous problems with
Matchopatow’s argument. We note initially
that he never objected to the court
during sentencing and notified the trial
judge that he believed the government had
violated the plea agreement.
Matchopatow’s failure to raise the issue
of the government’s alleged breach during
sentencing limits our review to one for
plain error. United States v. Hicks, 124
F.3d 376, 378 (1997); United States v.
Flores-Sandoval, 94 F.3d 346, 352 (7th
Cir. 1992); United States v. Phillips, 37
F.3d 1210, 1215 (7th Cir. 1994).

  This is not all, for Matchopatow never
raised the government’s alleged breach in
his initial brief to this court. Instead,
he raised only the issue of whether the
district court abused its discretion in
imposing a 9-level, as opposed to the
recommended 5-level, upward departure.
Only after the government had pointed out
that Matchopatow waived his right to
appeal, did he suggest in his reply brief
that the government had breached the plea
agreement. It is well recognized that
arguments not raised in the
proceedinguntil the reply brief are
waived. United States v. Turner, 203 F.3d
1010, 1019 (7th Cir. 2000). But whether
we consider Matchopatow’s failure to
timely raise his claim as a forfeiture or
a waiver matters little, for we cannot
fathom even a scintilla of support for
his argument that the government broke
its promise to him. Indeed, at oral
argument, Matchopatow’s counsel admitted
that he could point to no language in the
plea agreement that the government failed
to perform.

  "Plea agreements are contracts, and
their content and meaning are determined
according to ordinary contract
principles." United States v. Schilling,
142 F.3d 388, 394 (7th Cir. 1998)
(quoting United States v. Ingram, 979
F.2d 1179, 1184 (7th Cir. 1992)). "The
government must fulfill any promise that
it expressly or impliedly makes in
exchange for a defendant’s guilty plea."
Id. at 395. Although the government is to
be held to the literal terms of the plea
agreement, id., we will not require the
government to do more than it intended.
See United States v. Williams, 198 F.3d
988, 992 (7th Cir. 1999); Schilling, 142
F.3d at 395; United States v. Jimenez,
992 F.3d 131, 134 (7th Cir. 1993).
Indeed, in our civil contract
jurisprudence, we consistently have held
that we will not ignore the plain
language of the contract where there is
no ambiguity. See, e.g., River v.
Commercial Life Ins. Co., 160 F.3d 1164,
1169 (7th Cir. 1999); Heller v. Equitable
Life Assurance Soc. of the United States,
833 F.2d 1253, 1256 (7th Cir. 1987).

  In determining whether the government
broke its promise, we look to "the
parties’ reasonable expectations upon
entering the agreement." Schilling, 142
F.3d at 395. All the government promised
to do in this case was to make a
sentencing recommendation. The plea
required the government to "recommend a
5-level upward departure from the
applicable sentencing guideline range . .
. pursuant to [U.S.S.G.] 5K2.8," and
further acknowledged that "the sentencing
court will make its own determination
regarding any and all issues relating to
the application of the sentencing
guidelines." The government fulfilled its
promise, and the sentencing court
disagreed with that recommendation.
Matchopatow insists that the government
broke the spirit of this promise when it
stated that it "will support [the
district court’s] position." But despite
Matchopatow’s cry of foul, the government
never made a promise to stand mute in the
face of efforts on behalf of Matchopatow
to challenge the sentencing court’s
findings. Indeed, the plea agreement
specifically contemplated the opposite--
that the government could take any
position consistent with the sentencing
court’s findings. Cf. United States v.
Brooks, 708 F.2d 1280, 1282 (7th Cir.
1983) (holding that a government promise
to refrain from making a sentencing
recommendation does not preclude the
government from opposing the defendant’s
efforts to reduce his sentence after the
sentence has been handed down).

  "Defendants who appeal from sentences
following plea agreements always point to
unanticipated and unwelcome
developments." Woolley, 123 F.3d at 637.
This case is no different. In this case
it was the judge’s independent decision
to impose a 9-level upward departure, as
opposed to the recommended 5-level
departure. The trial judge gave reasons
for his decision, noting that he was
imposing a 3-level departure for each of
three factors--the heinous nature of the
crime, defendant’s mutilation of the body
after the murder, and defendant’s
concealment of the body. The plea
agreement clearly specifies the
government’s obligations, and to accept
Matchopatow’s argument that the
government breached that agreement would
force us to revise the plea agreement and
strain to find that the government
assumed an obligation to convince the
sentencing court to reconsider its
decision where it never expressly did so.
An unanticipated departure on the part of
the sentencing court simply does not
support a claim that the government broke
its promise. We refuse to revise the
written contract to benefit either the
government or the defendant.

  Although plea agreements are not simply
ordinary contracts and require the
government to deal fairly and
forthrightly with defendants, it is the
"duty of defense counsel to examine
carefully the contours of the plea
agreement and to advise carefully the
defendant as to those matters that are
covered by the agreement and those
matters that are not." United States v.
Williams, 102 F.3d 923, 927 (7th Cir.
1996). Matchopatow was represented by
counsel throughout the proceedings, and
does not claim that he was unaware of the
ramifications of his plea.

  We hold that the government did not
breach the terms of the plea agreement
and that Matchopatow’s waiver of his
right to appeal is therefore binding and
valid. Accordingly, we see no need to
address the merits of his
sentencingargument and DISMISS his appeal.

FOOTNOTES

/1 Federal jurisdiction was premised on the fact
that the murder occurred on the Menominee Indian
Reservation. See 18 U.S.C. sec. 1153; United
States v. Olsen, 846 F.2d 1103, 1106 n.1 (7th
Cir. 1988); United States v. Torres, 733 F.2d
449, 453-54 (7th Cir. 1984).
