Appeal from the United States District Court for the Eastern District of Wisconsin. No. 92 CR 134--Thomas J. Curran, Judge.
Before Posner, Kanne, and Rovner, Circuit Judges.
The opinion of the court was delivered by: 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.
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.*fn1
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 ...