January 10, 2017
from the United States District Court for the Southern
District of Illinois. No. 3:14-CR-30075-DRH-l - David R.
Wood, Chief Judge, and Rovner and Hamilton, Circuit Judges.
Hamilton, Circuit Judge.
Daniel Lockett asks us to decide whether simultaneous
possession of two illegal drugs is one crime or two for
Double Jeopardy Clause purposes. Lockett was caught in
simultaneous possession of cocaine and heroin. He pled guilty
to two counts of possession with intent to distribute a
controlled substance, and was sentenced on those counts
before anyone noticed a potential double 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
Lockett was arrested while carrying a bag containing
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.
central argument is that his simultaneous possession 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
convictions should be vacated.
government contends that Lockett waived his multiplicity
challenge by (1) pleading guilty and (2) failing to file a
pretrial motion. Lockett's guilty plea did not waive this
challenge, but the lack of a pretrial motion did. We
therefore do not reach the merits of Lockett's first
No Waiver by Guilty Plea
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). Lockett
argues from "the record alone, " specifically, 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 evidentiary 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.
Waiver by Lack ...