NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 2, 2013*
Decided April 11, 2013
Before
ILANA DIAMOND ROVNER, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 12‐2298 Appeal from the United States District
Court for the Northern District of Illinois,
UNITED STATES OF AMERICA, Eastern Division.
Plaintiff‐Appellee,
No. 11 CR 120
v.
Virginia M. Kendall,
JOSEPH FAULKNER, Judge.
Defendant‐Appellant.
O R D E R
Joseph Faulkner was charged with four drug offenses stemming from his activities
trafficking in heroin in Chicago. He entered into an agreement with the government to
plead guilty to two counts of violating
21 U.S.C. § 843(b), which prohibits the use of any
communication facility—here, a cell phone—in committing or facilitating the commission of
*
This case was originally scheduled for oral argument on April 2, 2013. Because the government
confessed error on the sole issue on appeal, we concluded that oral argument is unnecessary and
cancelled it. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP. P. 34(a)(2).
No. 12‐2298 Page 2
any of an enumerated list of felonies—here, distributing a controlled substance in violation
of 21 U.S.C. 841(a)(1). As part of the agreement, Faulkner agreed to waive his right to
challenge his conviction and sentence on appeal. The district court accepted the guilty pleas
and sentenced Faulkner to consecutive prison terms of 45 months on the first count and 46
months on the second count, for a total of 91 months. The court also imposed consecutive
one‐year terms of supervised release for each count. Finally, the court required Faulkner to
pay a $200 assessment and to repay $17,800 in “buy money” that he received during the
government’s investigation of him.
Faulkner appeals the district court’s imposition of consecutive terms of supervised
release. Federal law provides that a term of supervised release “runs concurrently with any
Federal, State, or local term of . . . supervised release . . . for another offense to which the
person is subject.”
18 U.S.C. § 3624(e). As the government concedes, this statute prevents
the court from imposing consecutive terms of supervised release. See United States v. Danser,
270 F.3d 451, 454 (7th Cir. 2001). The government also concedes that Faulkner didn’t
bargain away his right to challenge the consecutive terms of supervised release on appeal
because his plea agreement doesn’t preclude him from challenging a sentence exceeding the
applicable statutory maximum. An agreement purporting to prevent Faulkner from doing
so would be ineffective anyway; a sentence in excess of the statutory maximum can be
challenged on appeal “even if the defendant executed a blanket waiver of his appeal rights.”
United States v. Bownes,
405 F.3d 634, 637 (7th Cir. 2005).
Accordingly, we accept the government’s confession of error and agree with the
parties that the imposition of consecutive, rather than concurrent, terms of supervised
release constitutes reversible error under any standard of review. We therefore VACATE
the sentence and REMAND to the district court with instructions to enter a new judgment
correcting the error.
