                             In the

United States Court of Appeals
               For the Seventh Circuit

No. 12-3351

U NITED S TATES OF A MERICA,
                                                  Plaintiff-Appellee,
                                 v.

JAVIER M UNOZ,
                                              Defendant-Appellant.


            Appeal from the United States District Court
     for the Southern District of Indiana, Indianapolis Division.
            No. 1:07-cr-22-1—Larry J. McKinney, Judge.



       A RGUED A PRIL 30, 2013—D ECIDED JUNE 10, 2013




 Before F LAUM, W OOD , and H AMILTON, Circuit Judges.
  H AMILTON, Circuit Judge. Pursuant to a plea agree-
ment, defendant Javier Munoz pled guilty in 2007 to
distributing and possessing cocaine with intent to dis-
tribute, but he fled to Mexico before his sentencing. It
took the government five years to track him down and
extradite him. When he finally faced sentencing in 2012,
the district court imposed a sentence of 181 months in
prison, which was below the advisory sentencing guide-
2                                              No. 12-3351

line range. Munoz has appealed, arguing that at the time
of sentencing, the government breached the plea agree-
ment by (1) advocating a base offense level higher
than the parties had agreed in the plea agreement, and
(2) recommending a sentence in the middle of the guide-
line range rather than at the bottom. As we view the
case, however, it was Munoz, not the government, who
materially breached the conditions of his release and
an implied term of the plea agreement by fleeing the
country rather than showing up for sentencing. Munoz’s
breach permitted the government to treat the plea agree-
ment as having been rescinded. We affirm.


I. Factual and Procedural Background
  Munoz was charged in 2005 with conspiring to dis-
tribute cocaine. See 21 U.S.C. §§ 846, 841(a)(1). At an
initial court appearance, he was released on personal
recognizance after he promised to appear at all court
proceedings and to remain in the district unless he re-
ceived permission to leave. He also acknowledged that
failing to appear at court proceedings or to serve his
sentence would be punishable by up to ten years in prison.
  Munoz then signed a plea agreement in January 2007
admitting that he had distributed cocaine and possessed
cocaine with intent to distribute in violation of 21 U.S.C.
§ 841(a)(1). In the plea agreement, the government prom-
ised “to recommend a sentence at the minimum of the
applicable sentencing guidelines range” and agreed to
a series of stipulations that would be “binding on
the parties,” though those stipulations would be only a
No. 12-3351                                            3

“recommendation to the Court.” Working from the rele-
vant quantity of drugs, the parties stipulated that the
base offense level should be 30 under the guidelines.
The government also stipulated that if Munoz “con-
tinue[d] to accept responsibility,” he would be entitled
to a two-level reduction under U.S.S.G. § 3E.1.1(a) and
the government would move for an additional one-
level reduction under U.S.S.G. § 3E.1.1(b). In addition,
Munoz waived his right to appeal if the district court
sentenced him “at the minimum of the applicable sen-
tencing guidelines range.” Munoz formally entered
his guilty plea at a hearing in February 2007, and the
court set a June 15 sentencing date.
  Munoz did not appear at that hearing. He fled to
his home country of Mexico. Nearly five years later, in
January 2012, U.S. Marshals Task Force officers arrested
him. Munoz was extradited to the United States to
appear for sentencing.
  In preparing for the delayed sentencing hearing, a
probation officer’s presentence report recommended
a base offense level of 32, two levels higher than the
base offense level in the plea agreement. The probation
officer believed Munoz was responsible for more drugs
than the parties had agreed. After adding upward adjust-
ments for obstruction of justice, U.S.S.G. § 3C.1.1, and
possession of a dangerous weapon, § 2D1.1(b)(1), and
declining to give Munoz credit for acceptance of respon-
sibility, § 3E.1.1(a), the probation officer calculated a
total offense level of 36 and a criminal history category
of II, yielding a guideline range of 210 to 262 months
4                                                  No. 12-3351

in prison. At the sentencing hearing, the government
endorsed these calculations. The government contended
that after Munoz’s flight from justice, it was no longer
bound by its stipulations in the plea agreement and
could advocate a base offense level of 32. Defense
counsel argued that the government was still bound
to support the stipulated base offense level of 30.
  The district court agreed with the government and
applied a base offense level of 32, reasoning that Munoz
lost “the benefit of [his] bargain on the plea” when he
absconded. The parties then debated whether Munoz
should still receive credit for accepting responsibility
because of his guilty plea. Munoz maintained that he
should. The government insisted that “fleeing to a
foreign country where extradition treaties typically
aren’t honored is completely inconsistent with ac-
cepting responsibility.” The court again agreed with the
government and applied the probation officer’s guide-
line calculations.1
  After the court accepted the guideline range of 210 to
262 months in prison, the parties debated the appro-



1
  Regarding the prosecutor’s comment about Mexico and
extradition treaties, Article 9 of the United States-Mexico
Extradition Treaty, May 4, 1978, 31 U.S.T. 5059, actually pro-
vides that neither nation is required to deliver its own
nationals to face prosecution or punishment in the other
nation. The executive authority of each nation has discretion to
honor such requests, as Mexico honored the United States
request for extradition of Munoz.
No. 12-3351                                              5

priate sentence in light of the statutory sentencing fac-
tors. See 18 U.S.C. § 3553(a). Munoz’s counsel urged
a sentence of 121 to 144 months, which he said was ap-
proximately three to five years more than Munoz
would have received if he had appeared at his initial
sentencing hearing. The government emphasized
Munoz’s flight from justice and sought a sentence in
the middle of the guideline range. The court recounted
Munoz’s underlying drug activity and decision to
leave the country and concluded that Munoz’s drug
convictions warranted a sentence around 121 months,
while his flight justified an additional 60 months. The
court imposed a 181-month sentence, which was
29 months below the bottom of the advisory guide-
line range.


II. Discussion
  On appeal Munoz argues that the government
breached the plea agreement when it argued for a base
offense level of 32 and a mid-range sentence instead of
a sentence at the bottom of the range. In Munoz’s view,
the government was not free to repudiate the plea agree-
ment despite his flight because the plea agreement did
not contain express language permitting it to do so.
Cf. United States v. Rivera, 954 F.2d 122, 123 (2d Cir.
1992) (plea agreement expressly provided that if de-
fendant failed to appear for sentencing, among other
types of breaches, “the Government may void this agree-
ment”). In addition, Munoz contends that the govern-
ment got all it bargained for — a guilty plea that relieved
6                                               No. 12-3351

it from going to trial — so that the government was
not harmed substantially by his flight.
  When considering claims that a plea agreement has
been breached, we generally use contract law principles,
though with an eye to “the special public-interest con-
cerns” that arise in this context, and we interpret a plea
agreement based on the parties’ reasonable expectations
and construe ambiguities against the government as the
drafter. United States v. O’Doherty, 643 F.3d 209, 217 (7th
Cir. 2011), quoting United States v. Monroe, 580 F.3d 552,
556 (7th Cir. 2009); see also United States v. Schilling,
142 F.3d 388, 394-95 (7th Cir. 1998) (recognizing special
public character of plea agreements). As a general rule,
the government is bound to honor the promises it
makes to induce the defendant to plead guilty,
see O’Doherty, 643 F.3d at 217, but a defendant who
substantially breaches a plea agreement cannot force
the government to uphold its end of the bargain. See
United States v. Kelly, 337 F.3d 897, 901-02 (7th Cir. 2003)
(defendant breached obligation to provide assistance
in other investigations); United States v. Ramunno, 133 F.3d
476, 484 (7th Cir. 1998) (defendant breached agreement
to provide complete and truthful information about crim-
inal activity). Where, as here, there is no dispute about
the relevant facts, we review de novo the interpretation
of a plea agreement. See Schilling, 142 F.3d at 394.
  When Munoz fled the country and spent nearly five
years as a fugitive in Mexico, he breached what we
believe was an implied but obvious term of the plea
agreement that he remain in the country and show up
No. 12-3351                                              7

for sentencing. Plea agreements are interpreted under
contract law principles in light of the parties’ reasonable
expectations concerning the meaning of the terms. See
O’Doherty, 643 F.3d at 217. No defendant could rea-
sonably expect that he could abscond for five years and
still hold the government to its promises under the
plea agreement. Even in the absence of a statement in a
plea agreement itself explicitly requiring the defendant
to show up for sentencing, any reasonable defendant has
a common-sense understanding that he must not flee
the country. And in any event Munoz was aware of
his responsibilities dating back to his initial court ap-
pearance, when he promised to show up for sentencing
and not to leave the district without permission as con-
ditions of his pretrial release. See generally 18 U.S.C.
§ 3142(c)(1)(B) (standard terms for pretrial release).
  We confronted a similar issue and came to the same
conclusion in United States v. Delacruz, 144 F.3d 492, 494-
95 (7th Cir. 1998). Like Munoz, Delacruz pled guilty to
a drug crime and then fled to Mexico rather than
face sentencing. Lured by the prospect of a lucrative
marijuana deal, though, Delacruz eventually returned
to the United States and was arrested. Id. at 493-94.
On appeal, Delacruz argued that the government
breached an oral plea agreement by arguing for a sen-
tence greater than the 24 months the government orig-
inally had agreed to recommend. Id. at 493-95. We
rejected that argument, reasoning that “the government
did not breach the plea agreement; rather Delacruz did
so by not appearing for sentencing and continuing his
criminal activity.” Id. at 495.
8                                             No. 12-3351

  Munoz contends that Delacruz is distinguishable
because he, unlike Mr. Delacruz, did not continue traf-
ficking drugs after his flight to Mexico. We do not
read Delacruz so narrowly. Regardless of whether a de-
fendant commits additional crimes after absconding, his
failure to appear for sentencing violates the conditions
of pretrial release and one of the fundamental premises
underlying any plea agreement: a willingness to face
the consequences of admitted criminal conduct. As a
result, we agree with our colleagues in the Fourth
Circuit that a defendant breaches a plea agreement when
he absconds before sentencing even if the agreement
is silent on the subject. See United States v. David, 58
F.3d 113, 114-15 (4th Cir. 1995) (“implicit in every such
plea agreement is the defendant’s obligation to appear
for sentencing”).
   Munoz also argues that his flight “did not deprive
the government of the benefit of its bargain” because the
government still avoided the cost of trial. He contends,
essentially, that any breach of his plea agreement was
insubstantial. But it is not as though Munoz had a flat
tire while driving to the scheduled sentencing and made
himself available for sentencing the next day. Because
Munoz spent five years on the run, the government
got much less than it bargained for. Although Munoz’s
eventual capture ensured that the government ob-
tained some benefit from his guilty plea — the benefit of
avoiding trial — the government also devoted resources
to finding, arresting, and extraditing him, and it faced
the possibility that he would never be punished for his
crimes. See United States v. Elliott, 467 F.3d 688, 691-92
No. 12-3351                                              9

(7th Cir. 2006); cf. United States v. Nduribe, 703 F.3d
1049, 1050-51 (7th Cir. 2013) (“we do not think proof that
a five-year wild goose chase is a burden to law enforce-
ment is necessary; the point is obvious”).
  Given Munoz’s substantial breach, the government
appropriately exercised its option to rescind the deal.
See Kelly, 337 F.3d at 901; Ramunno, 133 F.3d at 484.
Though we might have faced more difficult issues if the
government had tried to enforce only a few select provi-
sions of the plea agreement, the government has treated
the entire plea agreement as void, including the provi-
sions that would have benefitted it, such as Munoz’s
waiver of his appeal rights. That waiver is now unen-
forceable along with the rest of the agreement. See
United States v. Sakellarion, 649 F.3d 634, 639 (7th Cir.
2011) (“an appellate waiver stands or falls with the
rest of the bargain”) (internal quotation omitted);
Nunez v. United States, 546 F.3d 450, 454 (7th Cir. 2008).2
  Munoz’s other arguments do not warrant extensive
discussion. He contends that the district court should
have given him credit for acceptance of responsibility
under U.S.S.G. § 3E.1.1(a). He concedes, though, that
his flight obstructed justice, creating a presumption
that he did not accept responsibility for his crimes.
See United States v. Etchin, 614 F.3d 726, 740 (7th Cir.
2010). No exceptional circumstances here would have


2
  Munoz never sought to withdraw his plea of guilty, so we
need not address the substantially different considerations
that would arise in such a case.
10                                            No. 12-3351

required the district court to find otherwise. See United
States v. Davis, 442 F.3d 1003, 1009-10 (7th Cir. 2006).
Munoz’s reliance on United States v. Mount, 675 F.3d 1052,
1053 (7th Cir. 2012), is inapposite. Mount concerned the
court’s power to deny the government’s motion under
§ 3E.1.1(b), not the court’s discretionary authority
to deny credit for acceptance of responsibility under
§ 3E.1.1(a).
  Munoz also asserts that the district court violated his
due process and equal protection rights by increasing
his sentence by 60 months because of his flight. In his
view the guidelines would have called for a shorter
sentence if he had been charged separately with failure
to appear. We have found no support for this constitu-
tional argument. At sentencing, defense counsel con-
ceded that Munoz’s flight justified up to five years
more time in prison than he would have received for
the underlying drug crimes alone. The court did not
violate the Constitution when it sentenced Munoz in
line with that possibility and the overall sentence re-
mained below the applicable guideline range.
 The judgment of the district court is A FFIRMED.




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