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United States v. Lockett

United States Court of Appeals, Seventh Circuit

June 9, 2017

United States of America, Plaintiff-Appellee,
v.
Daniel O. Lockett, Defendant-Appellant.

          Argued January 10, 2017

         Appeal from the United States District Court for the Southern District of Illinois. No. 3:14-CR-30075-DRH-l - David R. Herndon, Judge.

          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 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.

         I. Factual and Procedural Background

         Daniel 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.

         II. Analysis

         Lockett's 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.

         A. Lockett's Sentencing

         The 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 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, " 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.

          2. Waiver by Lack ...


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