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 resentencing 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 eighteenpage 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 resentenced 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 presentence 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 resentencing 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 resentencing, 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 conviction 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 sentence far lower than the one he actually received. 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 agreement." R. 110 at 5.