00-1408 U.S. v. Warda

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“[I]t 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.

“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.”

Affirmed.

Appeal from the United States District Court for the Eastern District of Wisconsin, Curran, J., Rovner, J.