United States v. Daniel O. Lockett

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-2753
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DANIEL O. LOCKETT,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 3:14-CR-30075-DRH-1 — David R. Herndon, Judge.
____________________
ARGUED JANUARY 10, 2017 — DECIDED JUNE 9, 2017
____________________
Before WOOD, Chief Judge, and ROVNER and HAMILTON,
Circuit Judges.
HAMILTON, Circuit Judge. Appellant Daniel Lockett asks us
to decide whether simultaneous possession of two illegal
drugs is one crime or two for Double Jeopardy Clause pur-
poses. Lockett was caught in simultaneous possession of co-
caine and heroin. He pled guilty to two counts of possession
with intent to distribute a controlled substance, and was sen-
2 No. 15-2753
tenced on those counts before anyone noticed a potential dou-
ble jeopardy issue. On appeal he argues that as a result, his
plea was unknowing and his sentence violated the Double
Jeopardy Clause. Neither point was raised in the district
court. Lockett’s failure to raise the double jeopardy objection
before pleading guilty waived that challenge, and we review
the closely related challenge to the plea itself only for plain
error. We find no plain error on that issue and thus affirm
Lockett’s convictions and sentence.
Factual and Procedural Background
Daniel Lockett was arrested while carrying a bag contain-
ing individually wrapped bags of heroin and cocaine. He was
indicted for and pled guilty to two counts of possession with
intent to distribute a controlled substance in violation of 21
U.S.C. § 841(a)(1)—one count for the heroin and one for the
cocaine. Because of prior felony drug offenses, the advisory
Sentencing Guidelines classified Lockett as a career offender.
The district court accepted that advice and sentenced Lockett
to 151 months in prison.
Analysis
Lockett’s central argument is that his simultaneous posses-
sion of two controlled substances was only one crime, not
two. He seeks to apply that point in two ways. First, he argues
that he was punished twice for the same crime in violation of
the Fifth Amendment’s Double Jeopardy Clause and that the
appropriate remedy is a full resentencing. Second, he argues
that because he did not know about the multiplicity issue
when he pled guilty, his plea was not knowing and his con-
victions should be vacated.
No. 15-2753 3
Lockett’s Sentencing
The government contends that Lockett waived his multi-
plicity challenge by (1) pleading guilty and (2) failing to file a
pretrial motion. Lockett’s guilty plea did not waive this chal-
lenge, but the lack of a pretrial motion did. We therefore do
not reach the merits of Lockett’s first argument.
1. No Waiver by Guilty Plea
In general, “an unconditional plea of guilty operates as a
waiver of all formal defects in the proceedings.” Gomez v.
Berge, 434 F.3d 940, 942 (7th Cir. 2006). But double jeopardy
violations are exceptions to that general rule if the “record
alone” can establish them. Robinson v. United States, 196 F.3d
748, 751 (7th Cir. 1999), readopted in relevant part on remand, 6 F.
App’x 359 (7th Cir. 2001), citing United States v. Broce, 488 U.S.
563, 576 (1989).1 Lockett argues from “the record alone,” spe-
cifically, the indictment and the stipulation of facts. Cf. United
States v. Makres, 937 F.2d 1282, 1286 (7th Cir. 1991) (no facial
double jeopardy violation where defendant requested evi-
dentiary hearing to develop argument). That argument might
be wrong—the government’s waiver argument collapses
quickly into arguing that it is—but his guilty plea did not
waive it.
1 The government asserts that the defect must be present on the face
of the indictment, citing United States v. Baugh, 787 F.2d 1131, 1132 (7th Cir.
1986). Although the Baugh court had no need to consider materials other
than the indictment, we are not required to limit our review so narrowly.
See Robinson, 196 F.3d at 752 (relying on both indictment and stipulated
statement of facts).
4 No. 15-2753
2. Waiver by Lack of Pretrial Motion
Federal Rule of Criminal Procedure 12(b)(3)(B)(ii) requires
a defendant to raise a multiplicity objection to an indictment
“by pretrial motion if the basis for the motion is then reason-
ably available.” Lockett did not raise his multiplicity concern
by pretrial motion. In fact, he never raised it in the district
court.
Lockett addresses the waiver problem by distinguishing
between objecting to the form of the indictment and objecting
to his sentence. He says he is making the latter objection,
which is not governed by Rule 12(b). That distinction has been
recognized by the Fifth, Sixth, and Eleventh Circuits, which
hold that defendants need not raise multiplicity challenges
before trial. See United States v. Abboud, 438 F.3d 554, 566–67
(6th Cir. 2006), citing United States v. Rosenbarger, 536 F.2d 715,
721–22 (6th Cir. 1976); United States v. Mastrangelo, 733 F.2d
793, 800 (11th Cir. 1984), citing United States v. Bradsby, 628
F.2d 901, 906 (5th Cir. Unit A 1980); United States v. Cauble, 706
F.2d 1322, 1334–35 (5th Cir. 1983), citing Bradsby, 628 F.2d at905–06. But in United States v. Griffin, 765 F.2d 677, 680–81 (7th
Cir. 1985), we joined with the First, Second, and Eighth Cir-
cuits and held otherwise. Lockett’s multiplicity objection was
therefore untimely. Fed. R. Crim. P. 12(c)(3) (“If a party does
not meet the deadline for making a Rule 12(b)(3) motion, the
motion is untimely.”).
If Lockett had made an untimely objection in the district
court, he might still have shown good cause and asked the
district court to consider the argument anyway. “[A] court
may consider the … [untimely] objection … if the party shows
good cause.” Id. He did not do so. He might also have asked
us to consider whether, “if a motion for relief had been made
No. 15-2753 5
and denied, the district court would have abused its discre-
tion in concluding that the defense lacked good cause.” United
States v. Acox, 595 F.3d 729, 732 (7th Cir. 2010) (“[T]hat the
good-cause decision is committed to the district court … need
not preclude all possibility of relief when trial counsel never
tries to show good cause.”). Again he did not. We therefore
do not conduct even plain error review of Lockett’s sentence.
Id. at 731 (“Before a court of appeals can reach the plain-error
question, a defendant must first establish good cause for the
absence of a pretrial motion.”). But these procedural problems
would not matter in the long run. Even if plain error review
were available, Lockett’s double jeopardy challenge to his sen-
tence would not succeed. It rests on the same argument as his
challenge to his guilty plea. As we explain next, permitting
conviction on the two counts was not a plain error.
Lockett’s Guilty Plea
Lockett contends that his guilty plea was not knowing and
voluntary because he was led to believe he had committed
two crimes when he had committed only one.2 Because he did
not challenge the validity of his plea in the district court, he
agrees, our review is for plain error. United States v. Pineda-
Buenaventura, 622 F.3d 761, 770 (7th Cir. 2010). An error can be
2 Lockett’s briefing occasionally implies that his plea was unknowing
because he thought he was pleading to possession with intent to distribute
the cocaine but only possession of the heroin. The heroin, he says, was for
personal use. If this is his argument, the record does not support it. He
showed no confusion at his plea hearing, where the judge’s questions
were quite clear. In a letter Lockett wrote to the district judge after sen-
tencing, he did not say that he did not mean to plead guilty to the heroin
distribution charge, only that he did not understand how the difference
between possession and distribution would matter at sentencing.
6 No. 15-2753
plain only if it is “clear or obvious, rather than subject to rea-
sonable dispute.” Puckett v. United States, 556 U.S. 129, 135
(2009).
It is not “clear or obvious” that Lockett committed only
one crime. At least seven circuits have held in precedential
opinions that simultaneous possession of two drugs is two
crimes; no circuits have held otherwise. United States v. Vargas-
Castillo, 329 F.3d 715, 717, 722 (9th Cir. 2003) (separate charges
for different drugs found at the same time inside the same tire
not multiplicitous); United States v. Richardson, 86 F.3d 1537,
1552–53 (10th Cir. 1996) (separate charges for cocaine and
methamphetamine found in same bag not multiplicitous), ab-
rogated on other grounds as recognized in United States v. Pearce,
146 F.3d 771, 774 (10th Cir. 1998); United States v. Bonilla
Romero, 836 F.2d 39, 46–47 (1st Cir. 1987) (rejecting argument
that “heroin and cocaine … found in one bag at the same time
and place” constitutes a single violation of 21 U.S.C.
§ 841(a)(1)); United States v. DeJesus, 806 F.2d 31, 35–37 (2d Cir.
1986) (rejecting argument that “Congress did not intend to au-
thorize cumulative penalties … for the simultaneous posses-
sion of different drugs”); United States v. Grandison, 783 F.2d
1152, 1156 (4th Cir. 1986) (“Congress intended the possession
of each scheduled substance to be a separate offense … .”);
United States v. Davis, 656 F.2d 153, 159 (5th Cir. Unit B Sept.
1981) (“When Congress set penalties for possession of ‘a con-
trolled substance,’ it intended to permit trial courts to penalize
possession of ‘each’ controlled substance.”); United States v.
No. 15-2753 7
Pope, 561 F.2d 663, 669 (6th Cir. 1977) (“[T]he possession of
heroin and methadone represent separate offenses … .”).3
We reached nearly the same conclusion in Griffin, 765 F.2d
at 682–83. In that case, the defendant was arrested with a bag
of cocaine on his person and a package of cocaine in his car
some distance away. Id. at 682. We rejected a multiplicity chal-
lenge to separate counts for each container, noting that the
differences in purity, quantity, and location made possession
of the two containers separate crimes. Id. at 683. Griffin is not
precisely on point—there was no difference in location be-
tween the two drugs here—but the opinion’s language indi-
cated that purity differences alone would have been suffi-
cient. Id. at 681.
Lockett also cites our decision in United States v. Powell, 894
F.2d 895, 898–99 (7th Cir. 1990), in which we held that separate
charges for conspiracies to distribute cocaine and metham-
phetamine were multiplicitous, at least where the evidence
showed the same people were involved with both drugs at the
same time and even in the same transactions. The issue in
Powell was the scope of the alleged conspiracies, though, not
the possession of separate drugs, and its analysis does not
carry over to possession charges, and certainly not so clearly
as to support a finding of plain error.
Lockett argues that we should break from existing case
law. Many of the decisions authorizing separate charges rea-
soned from the need to permit judges to sentence in a more
flexible and individualized way, a need since addressed by
3The Eleventh Circuit followed Davis in a non-precedential decision.
United States v. Thompson, 171 F. App’x 823, 829 n.2 (11th Cir. 2006) (per
curiam).
8 No. 15-2753
adoption of the first mandatory and later advisory Sentencing
Guidelines, which account for crimes involving multiple
drugs through the use of “marihuana equivalents.” See
U.S.S.G. § 2D1.1, App. Note 8; cf. Davis, 656 F.2d at 159 (argu-
ing that punishing simultaneous possessions as one crime
would limit judges to “the punishment set by statute for pos-
session of only one drug”); United States v. Johnson, 25 F.3d
1335, 1336–37 (6th Cir. 1994) (noting that most multiplicity
challenges in simultaneous possession cases predate Guide-
lines, and leaving “to another occasion the question of
whether Pope should be overruled”). Lockett also points to the
text of § 841(a), which prohibits possessing “a controlled sub-
stance” without separately specifying each drug type.
Lockett makes a reasonable argument. To show a plain er-
ror, though, he must show not only that his argument is rea-
sonable but that it is clearly (“plainly”) correct. An argument
that conflicts with seven circuits’ case law and is in tension
with our own does not meet that standard.
The judgment of the district court is AFFIRMED.