United States v. Otis Sykes

In the

United States Court of Appeals

For the Seventh Circuit

____________________

Nos. 16-2860 & 16-3525

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOSEPH FAULKNER and OTIS SYKES,

Defendants-Appellants.

____________________

Appeals from the United States District Court for the

Northern District of Illinois, Eastern Division.

Nos. 13-CR-772-2 & 13-CR-772-18 — Elaine E. Bucklo, Judge.

____________________

ARGUED JANUARY 11, 2018 — DECIDED MARCH 19, 2018

____________________

Before EASTERBROOK and BARRETT, Circuit Judges, and

STADTMUELLER, District Judge. *

STADTMUELLER, District Judge. Joseph Faulkner and Otis

Sykes were convicted of conspiring to sell heroin at a place

called the Keystone, an open-air drug market on Chicago’s

west side. Faulkner was a leader of the gang which ran the

* Of the Eastern District of Wisconsin, sitting by designation.

2 Nos. 16-2860 & 16-3525

market and Sykes was a low-level street dealer. In this consol-

idated appeal, Faulkner challenges numerous aspects of his

conviction, while Sykes takes issue with his sentence. Neither

presents arguments which merit reversal of the district court.

Accordingly, we affirm the appellants’ convictions and sen-

tences. We have jurisdiction over these appeals pursuant to

28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

I. JOSEPH FAULKNER

A. Factual & Procedural Background

Faulkner was a high-ranking member of the Imperial In-

sane Vice Lords, a Chicago street gang, also known as the

Double I’s. In 2011, he was prosecuted for heroin distribution

that occurred in 2007 and 2008, and as well as charges related

to heroin found in his apartment, discovered upon his arrest

in February 2011. Following his arrest, Faulkner debriefed ex-

tensively with federal agents, explaining his role in the Dou-

ble I’s, their drug distribution activities, and the identities and

roles of other gang members. He pled guilty to a superseding

indictment asserting two counts of using a telephone to facil-

itate drug crimes. At his sentencing for the 2011 prosecution,

the government sought, and the court imposed, an above-

Guidelines sentence based upon the information Faulkner

provided in his own debrief.

In September 2013, while Faulkner remained in prison, the

government indicted him again. He and ten other defendants

were charged with drug trafficking through the Double I’s or-

ganization or within its territory. Count One charged Faulk-

ner with participating in a RICO conspiracy under 18 U.S.C.

§ 1962(d). The government alleged that Faulkner conspired to

distribute drugs at the Keystone from 1996 until his arrest in

Nos. 16-2860 & 16-3525 3

2011. It also included a generic drug distribution conspiracy

count, Count Nine, pursuant to 21 U.S.C. §§ 841(a)(1) and 846.

The final two counts directed at Faulkner, Counts Two

and Three, related to the shooting of Tony Carr in January

2010. Count Two charged Faulkner with conspiracy to com-

mit assault with a dangerous weapon, and Count Three was

a related gun charge under 18 U.S.C. § 924(c). Carr sold mari-

juana near Double I territory but was not a member of the

gang. Double I member Troy Ross and an accomplice broke

into Carr’s apartment in January 2010 and stole some mariju-

ana. Carr found out that Ross was responsible and attacked

him a few days later. Faulkner and another Double I member

came to the scene. The other person helped Ross, but Faulkner

did not intervene.

Carr ran away to his base of operations, a nearby cell

phone store. Faulkner, Ross, and the other Double I member

followed a while later. Ross pulled out a gun and shot Carr.

Again, Faulkner stood by and did nothing. Faulkner was the

only person charged in the Carr shooting. Ross himself re-

ceived full federal immunity and a reduced state sentence,

which prosecutors called “a phenomenal deal.” According to

Ross, Faulkner had ordered the shooting and provided the

firearm.

Faulkner believed that the 2013 indictment concerned the

very same drug distribution conduct that underlay his 2011

prosecution and sentencing. He moved to dismiss the second

indictment as a violation of his Fifth Amendment right

against double jeopardy. The trial court denied the motion,

and this Court affirmed in July 2015. United States v. Faulkner

[Faulkner I], 793 F.3d 752 (7th Cir. 2015).

4 Nos. 16-2860 & 16-3525

Faulkner then proceeded to trial before the court sitting

without a jury. The government alleged that Faulkner con-

spired to sell drugs at the Keystone with gang members and

affiliated non-members. As to Count One, the evidence ad-

duced at trial consisted of testimony from Double I member

Darrell Pitts and two government agents, who testified about

the Double I’s and their Keystone operation. Faulkner’s de-

brief was also introduced. Finally, the government offered a

series of recorded calls obtained pursuant to a wiretap of var-

ious Double I members. As to Counts Two and Three, testi-

mony about the shooting came from Ross, Carr, a clerk at the

cell phone store, and a Chicago police officer who processed

the scene. Faulkner vigorously disputed the quality of the

government’s evidence, including Ross’ credibility, the rele-

vance of Pitts’ testimony, and the admissibility of the rec-

orded calls. Despite these concerns, the district judge found

him guilty on all counts.

Prior to the trial, the parties waived formal findings, but

Judge Bucklo provided detailed findings anyway. As to

Count One, she found that the Double I’s were indeed a drug

trafficking conspiracy and that Faulkner was a member. As to

Counts Two and Three, Judge Bucklo found Ross’ testimony

credible that Faulkner ordered the shooting and did so to in-

timidate Carr and enhance Faulkner’s position in the Double

I’s. Finally, as to Count Nine, she concluded that Faulkner’s

long-time leadership of the Keystone market made him re-

sponsible for distributing over 1,000 grams of heroin. On June

28, 2016, Faulkner was sentenced to 30 years’ imprisonment

on Counts One and Nine, 3 years on Count Two, and 10 years

on Count Three.

Nos. 16-2860 & 16-3525 5

B. Legal Analysis

Faulkner filed a timely notice of appeal on July 3, 2016. He

raises four issues on appeal: (1) whether the evidence pre-

sented at trial was sufficient to support his convictions on

Counts One, Two, and Three; (2) whether the district court

erred in finding that he did not withdraw from the conspiracy

as of the time of his arrest in February 2011; (3) whether his

Sixth Amendment right to confrontation was violated by the

admission of hearsay statements from alleged co-conspira-

tors; and (4) whether his Fifth Amendment right to be free

from double jeopardy was violated by the two prosecutions.

The Court will address each point in turn.

1. Sufficiency of the Evidence

Faulkner first challenges his convictions on Counts One,

Two, and Three. “[W]e review a challenge to the sufficiency

of the evidence,” as Faulkner presents here, “to determine

only whether any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt,

viewing the evidence in the light most favorable to the gov-

ernment.” United States v. Webster, 775 F.3d 897, 904–05 (7th

Cir. 2015). We cannot re-weigh the evidence or reassess wit-

ness credibility. United States v. Wasson, 679 F.3d 938, 949 (7th

Cir. 2012). In other words, “we will ‘overturn the jury’s ver-

dict only when the record contains no evidence, regardless of

how it is weighed, from which the [factfinder] could find guilt

beyond a reasonable doubt.’” United States v. Peterson, 823

F.3d 1113, 1120 (7th Cir. 2016) (quoting United States v. Pribble,

127 F.3d 583, 590 (7th Cir. 1997)). This burden has been de-

scribed as “nearly insurmountable.” United States v. Taylor,

637 F.3d 812, 815 (7th Cir. 2011). None of Faulkner’s argu-

ments can carry it.

6 Nos. 16-2860 & 16-3525

As to Count One, the government was required to prove

“that another member of the enterprise committed … two

predicate acts and that [Faulkner] ‘knew about and agreed to

facilitate the scheme.’” United States v. Garcia, 754 F.3d 460, 477

(7th Cir. 2014) (quoting Salinas v. United States, 522 U.S. 52, 66

(1997)); Seventh Circuit Pattern Jury Instructions, 18 U.S.C. §

1962(d) Racketeering Conspiracy – Elements, Pattern Re-

quirement – Racketeering Conspiracy; see also United States v.

Amaya, 828 F.3d 518, 531–32 (7th Cir. 2016) (upholding RICO

conspiracy conviction where defendant was an enforcer of

gang rules with knowledge that those rules encouraged vio-

lence and drug dealing). It did not, as Faulkner suggests, need

to show that he was personally involved in two or more of the

predicate acts. Garcia, 754 F.3d at 477. Thus, Faulkner’s first

contention—that the district court failed to identify any spe-

cific predicate acts—is a non-starter. The evidence adduced

on Count Nine, a conviction Faulkner does not challenge on

appeal, supplied more than five specific incidents of drug dis-

tribution.

Faulkner further argues that the conspiracy charge was

improperly predicated solely on his own debrief. See United

States v. Fearns, 589 F.2d 1316, 1321 (7th Cir. 1978) (“It is a set-

tled principle of the administration of criminal justice in the

federal courts that a conviction must rest upon firmer ground

than the uncorroborated admission or confession of the ac-

cused.”). The government counters that the debrief was sup-

ported by the narcotics recovered during the 2011 arrest and

the testimony of various witnesses regarding Faulkner’s role

as the manager of the Keystone. The government is correct

that the debrief was indeed corroborated.

Nos. 16-2860 & 16-3525 7

As to Counts Two and Three, Faulkner makes two argu-

ments. First, he alleges that the government failed to prove

that he was involved in the Carr shooting. According to

Faulkner, Ross’ testimony was critical to his conviction on

those counts, and Ross’ testimony was so rife with inconsist-

encies that it was entirely beyond belief. Yet, if Ross’ testi-

mony is believed, Faulkner does not contest that it establishes

that he ordered the Carr shooting. Second, Faulkner says the

government did not prove a necessary element of Count

Two—namely, that Faulkner was motivated to order the

shooting “because he knew it was expected of him by reason

of his membership in the [Double I’s] or that he committed it

in furtherance of that membership.” United States v. DeSilva,

505 F.3d 711, 715 (7th Cir. 2007) (quotation omitted). Again,

Ross’ allegedly fantastical testimony supplies the evidence on

this element.

The only way this theory can succeed is if Faulkner proves

that Ross’ testimony was incredible as a matter of law. That

occurs when the testimony “is contrary to the laws of nature

or so internally inconsistent or implausible on its face that no

reasonable factfinder would credit it[.]” United States v. Col-

lins, 604 F.3d 481, 486 (7th Cir. 2010). 1 Despite the apparent

1 Faulkner does not cite this concept in his opening brief, but once

raised by the government in its response, he makes this the centerpiece of

his reply. The Court could thus treat his invocation of this doctrine as

waived. United States v. Alhalabi, 443 F.3d 605, 611 (7th Cir. 2006). The prin-

ciple of declaring testimony incredible as a matter of law has certainly ex-

isted for decades. See Anderson v. City of Bessemer City, N.C., 470 U.S. 564,

575 (1985); United States v. Cardona-Rivera, 904 F.2d 1149, 1152 (7th Cir.

1990).

8 Nos. 16-2860 & 16-3525

contradiction with the standard of review, this Court has oc-

casionally applied this concept in a sufficiency-of-the-evi-

dence analysis. United States v. Farmer, 717 F.3d 559, 561–63

(7th Cir. 2013); United States v. Saunders, 973 F.2d 1354, 1359–

60 (7th Cir. 1992). For instance, in Saunders, the jury heard

from a witness with poor and inconsistent recollection re-

garding a charged cocaine distribution conspiracy. We ex-

plained that:

[t]he [challenged] evidence was not inherently

unbelievable or improbable. Although James’

testimony on direct and cross-examination did

contain some inconsistencies—which, we note,

defense counsel called to the jury’s attention—

the jury chose to believe James nonetheless.

… The jury heard and rejected Saunders’ claim

that James’ testimony was “wildly improbable,”

and we are not at liberty to second-guess that

determination.

Saunders, 973 F.2d at 1359–60. Like Saunders, Faulkner argued

that Ross’ testimony was filled with material inconsistencies

and impossibilities. The district court was well aware of them

and credited Ross’ testimony anyway. We detect nothing so

“wildly improbable” in his testimony that Judge Bucklo’s

credibility determination cannot stand as a matter of law. This

is reinforced by the deference we must accord to any fact-

finder, be they judge or jury. The factfinder, not this Court,

was in the best position to assess Ross’ age, his intelligence,

his ability to comprehend and remember events, his de-

meanor, and the strength of any potential bias.

Faulkner also makes much of the alleged irrationality un-

derpinning his involvement in and motivation for the Carr

Nos. 16-2860 & 16-3525 9

shooting. He stresses, for instance, that it made no sense to

murder Carr without first trying other means to force him out,

for Ross to not be punished for failing to kill Carr, or for

Faulkner to allow Carr to live, and indeed resume his busi-

ness, after the failed assassination. This assumes that individ-

uals, including those like Faulkner or otherwise, only act to-

wards their highest, most rational ends. Judge Bucklo was not

required to make such an assumption, and neither are we.

Ross’ testimony supports the motivation requirement, and

that ends the inquiry. Webster, 775 F.3d at 904–05.

Though we may have assessed Ross’ credibility differently

in the first instance, that is not our task today. With Ross’ tes-

timony in hand, it is clear that sufficient evidence exists to

support Faulkner’s convictions on Counts Two and Three.

2. Withdrawal From the Conspiracy and Co-Con-

spirator Statements

Faulkner’s second and third points on appeal fall together.

The second bears upon Count One. He says that the govern-

ment conceded the end of his involvement in the gang by lim-

iting its conspiracy charge to February 2011, the time of his

arrest and debrief. He also notes that after he debriefed, the

government began wiretapping the Double I’s. Only one wit-

ness, and only one call, from that post-arrest period allegedly

involved Faulkner himself. The call was not recorded, how-

ever, and there was nothing to corroborate its occurrence. All

of the other relevant calls were third parties talking about, ra-

ther than with, Faulkner. Faulkner contends that he neces-

sarily withdrew from the conspiracy as of the date he de-

briefed with the government. See United States v. Nagelvoort,

856 F.3d 1117, 1128–29 (7th Cir. 2017). In his third point,

10 Nos. 16-2860 & 16-3525

Faulkner asserts that the recorded calls were inadmissible, ei-

ther because he had already withdrawn from the conspiracy,

or, even if he had not, the statements in the calls were not

made in furtherance of the conspiracy. Id.; see also Fed. R.

Evid. 801(d)(2)(E).

These points are academic, as Faulkner does not explain

why he suffered any prejudice from the erroneous admission

of this evidence. Faulkner may only come before us to contest

his conviction and sentence. See 28 U.S.C. § 1291; 18 U.S.C.

§ 3742(a). His points on appeal must relate to one or both of

those issues, but the withdrawal argument is untethered from

either. As to his conviction, “[a] withdrawal defense to a con-

spiracy charge is relevant only when ‘coupled with the de-

fense of statute of limitations.’” United States v. Nava-Salazar,

30 F.3d 788, 799 (7th Cir. 1994) (quoting United States v. Read,

658 F.2d 1225, 1233 (7th Cir. 1981)). Withdrawal does not “ab-

solve a defendant from his membership in the conspiracy” or

otherwise “negate that charge.” Id.

Faulkner obfuscates the reasons why withdrawal matters.

In his opening brief, he states:

In the typical case, a withdrawal defense is im-

portant when coupled with the statute of limi-

tations defense. Here, even if Faulkner with-

drew, the Indictment was brought before the

statute of limitations expired. Still, the defense

informs other areas, including whether state-

ments admitted were co-conspirator statements

(if Faulkner had withdrawn, the statements are

hearsay -- Issue III), whether double jeopardy

applies (Issue IV), and whether his drug

amount was properly calculated, and a correct

Nos. 16-2860 & 16-3525 11

sentence imposed (the amount was not, nor is

the sentence).

(Docket #27 at 41). This paragraph is confusing at best. Faulk-

ner concedes that he does not raise a statute of limitations de-

fense, and other than this single offhand remark, his appeal

does not challenge his drug quantity or sentence. While

Faulkner maintains that the withdrawal issue “informs” other

areas of his appeal, this is not the case in practice. Faulkner

fails to even mention the withdrawal issue in his double jeop-

ardy argument, and in his reply, he tries to stretch the with-

drawal issue into his sufficiency of the evidence attack.

Whatever his shifting theories on the matter, Faulkner

does not explain why the verdict would have been different

without the post-arrest evidence. Indeed, Judge Bucklo her-

self indicated it would not have been. 2 As noted above, Faulk-

ner’s convictions were amply supported by conduct occur-

ring prior to his February 2011 arrest. Faulkner does not argue

otherwise. See Nava-Salazar, 30 F.3d at 799 (“[A]ny alleged

2 From the December 8, 2015 hearing wherein Judge Bucklo deliv-

ered her verdict:

MR. GREENBERG: Judge, I have a question. You – we had submitted

a withdrawal defense. And you said intercepted calls after he was ar-

rested, after Mr. Faulkner was arrested, I thought I heard you say?

THE COURT: In truth, I don’t know that it makes any difference at all

in terms of the verdict, but I – it seems to me that it’s pretty clear that he

would have to make an affirmative step to withdraw. And I think I can

consider the statements of other people who were involved in the conspir-

acy as to whether he withdrew. I know I must – must decide that some-

body is involved in the conspiracy by their own statements. But, at any

rate, I’m not – I don’t know what difference it would make anyway.”).

(Docket #35 at GA 14–15).

12 Nos. 16-2860 & 16-3525

withdrawal of these two defendants from the conspiracy was

irrelevant in determining their guilt or innocence of the con-

spiracy charged in the indictment. Neither makes any claim

or showing that the denial of a withdrawal instruction preju-

diced him, as might be the situation if actions by other con-

spirators after a particular conspirator withdrew are used to

prove the guilt of that withdrawing conspirator.”). And as

discussed below, the withdrawal issue is ultimately irrelevant

to Faulkner’s double jeopardy argument, as it fails for other

reasons. We are left, then, with no material purpose for ad-

dressing withdrawal. This court is not in the business of of-

fering advice on legal quandaries. See United States v. McHugh,

528 F.3d 538, 541 (7th Cir. 2008) (a recommendation to the Bu-

reau of Prisons made after sentencing presented no justiciable

controversy).

The same logic applies to Faulkner’s admissibility argu-

ment. Whether or not the co-conspirator statements were ac-

tually admissible, Judge Bucklo committed no harmful error

by admitting them. United States v. Garcia-Avila, 737 F.3d 484,

490 (7th Cir. 2013) (even when evidence is erroneously admit-

ted, “reversal only follows if … an average juror would find

the prosecution’s case significantly less persuasive without

the improper evidence.”) (citations and quotations omitted).

Again, Faulkner offers no reason to suggest that the calls al-

tered the outcome of the case. Instead, he emphasizes what

appears to always have been his main objective in excluding

the calls: his claim that double jeopardy bars this prosecution.

3. Double Jeopardy

Faulkner’s final point on appeal is his renewed claim of

double jeopardy. He has already appealed and lost on that

ground. Faulkner I, 793 F.3d at 758. At that time, the Court of

Nos. 16-2860 & 16-3525 13

Appeals observed that Faulkner raised two species of double

jeopardy claims. Faulkner I, 793 F.3d at 755. First, he alleged

that he was punished twice for the same drug dealing con-

duct. Id. at 756. Though the drug distribution charges were

dropped in the 2011 prosecution, the evidence thereof formed

part of the district court’s sentencing determination. Faulkner

I determined that under Witte v. United States, 515 U.S. 389,

399 (1995), using the same conduct for a prosecution and for

a sentencing does not constitute double punishment. Id.

Second, Faulkner argued that he was prosecuted multiple

times for the same offense. Id. at 757. To prove that claim,

Faulkner must establish a prima facie showing

that both prosecutions were for identical of-

fenses; if he does, the burden shifts to the gov-

ernment to show, by a preponderance of the ev-

idence, that the indictments (or informations)

charged different crimes. To determine whether

the indictments charged the same offense, the

court generally looks to the test set forth in

Blockburger v. United States, 284 U.S. 299 …

(1932): “whether each offense contains an ele-

ment not contained in the other.”

Id. at 757–58 (citations omitted). Faulkner I held that each

count in the new prosecution survived the Blockburger test. Id.

at 758. Counts Two and Three, violence charges related to the

Carr shooting, were “clearly distinct from heroin distribu-

tion.” Id. Counts One and Nine, though directly related to

drug dealing, were conspiracy charges. Thus, two material

differences arose: “[c]onspiracy involves the element of an

agreement, which is not an element of a substantive drug dis-

14 Nos. 16-2860 & 16-3525

tribution offense; on the other side, the substantive offense re-

quires completion of the crime, which is not an element of

conspiracy.” Id. Finally, the court applied Blockburger to the

charges to which Faulkner eventually pleaded guilty—using

a phone to commit a felony. Id. The distinctions between those

crimes and the charges in the 2013 were, as might seem obvi-

ous, even greater. Id.

The government asserts that these holdings are the bind-

ing law of the case. That doctrine provides that we should

find Faulkner I controlling on the double jeopardy question

unless “(1) a subsequent trial produces substantially different

evidence, (2) controlling authority has since made a contrary

decision of law applicable to the issue, or (3) the prior decision

was clearly erroneous and would work manifest injustice.”

White v. United States, 371 F.3d 900, 902 (7th Cir. 2004) (quota-

tion omitted). Faulkner appears to offer the same two species

of double jeopardy claims as he presented earlier. He main-

tains that his trial, and the evidence presented therein, con-

firms that the prosecutions were for the same conduct. In par-

ticular, Faulkner says that if the improperly admitted rec-

orded calls are excluded, the evidence is precisely the same.

These arguments miss the mark. Faulkner focuses on the

merits of his double jeopardy challenge, paying little heed to

the law of the case doctrine. He does not even attempt to ex-

plain which of the three paths he seeks to navigate to avoid

Faulkner I, but the only one that might apply is the last. He has

cited no new, controlling authority, and he makes no argu-

ment that the evidence presented at trial was different than

that available to him during the interlocutory appeal. Nota-

bly, Faulkner’s evidentiary comparisons are directed at the

similarity of the evidence between the two prosecutions, not

Nos. 16-2860 & 16-3525 15

between the evidence presented during the earlier appeal and

at trial.

Further, we find no clear error in our prior decision. The

primary distinction between the instant appeal and the prior

one is Faulkner’s discussion of United States v. Schiro, 679 F.3d

521, 527–28 (7th Cir. 2012), which suggested that duplicative

evidence in successive prosecutions may present a double

jeopardy problem. This same concept is found in United States

v. Calabrese, however, which Faulkner cited in the prior ap-

peal. 490 F.3d 575, 580–81 (7th Cir. 2007). The prior panel thus

considered the issue and, although it did not comment upon

Calabrese directly, necessarily rejected Faulkner’s argument.

The only other material new to this appeal is a citation to

Gries, which states the ordinary proposition that “[a] lesser-

included offense nests within the greater offense and there-

fore flunks the Blockburger test.” United States v. Gries, 877 F.3d

255, 259 (7th Cir. 2017). Faulkner hopes to extend that holding

to his case by claiming that “[h]ere, the earlier prosecution

‘nests’ within the latter.” (Docket #45 at 22). In a problem that

plagues several aspects of his appeal, Faulkner raises this ar-

gument for the first time in his reply, thus waiving it. Alhalabi,

443 F.3d at 611. Besides, were it not waived, Faulkner I pro-

vided a detailed rejection of the position. Faulkner I, 793 F.3d

at 758.

At oral argument, Faulkner all but conceded that his dou-

ble jeopardy argument must fail before this court. In response

to the panel’s questioning, counsel stated that “if I don’t raise

it here, I can’t try and disagree with [the Supreme Court’s

Witte decision] later on.” He may rest assured that the matter

is preserved for a petition for a writ of certiorari. In this court,

16 Nos. 16-2860 & 16-3525

however, he fails to provide good reasons to overturn Faulk-

ner I, and that forecloses the point at this stage.

II. OTIS SYKES

We now turn to Faulkner’s co-defendant, Otis Sykes. He

was charged in the same 2013 indictment attacking the Dou-

ble I’s operations. Sykes was not a member of the gang but

worked as a street-level seller. He was nevertheless charged

with conspiring to distribute a controlled substance, in viola-

tion of 21 U.S.C. § 846, and seven counts of distributing heroin

and cocaine base, in violation of 21 U.S.C. § 841(a)(1). After a

bench trial, he was found guilty on all counts. Judge Bucklo

found that Sykes was responsible for distributing less than

100 grams of heroin.

The matter proceeded to sentencing. The presentence re-

port calculated a sentencing Guidelines range of 135 to 168

months’ imprisonment. It further noted the government’s in-

tention to introduce evidence of uncharged conduct, namely

the murder of Andre Brown. Brown was a Double I member

and engaged in various acts of extortion and violence in the

Keystone area. He had also robbed Sykes about a week prior

to his death. He was killed on the street by two hooded men

on June 22, 2012. The district court held multiple evidentiary

hearings on the Brown murder. It took testimony from several

witnesses who placed Sykes at the scene with a gun, though

none saw him actually shoot Brown. Sykes contends that the

witnesses lacked credibility and that someone else likely

killed Brown.

The district court also conducted multiple hearings on

Sykes’ sentence, largely directed at arriving at the correct

Guidelines calculation. In the course of those hearings, the

Nos. 16-2860 & 16-3525 17

district court held that Sykes’ participation in the Brown mur-

der was established by a preponderance of the evidence.

Judge Bucklo nevertheless stated that she would accord it lit-

tle weight in determining an appropriate sentence. The gov-

ernment argued for a 226-month sentence based on the Brown

murder, Sykes’ repeated re-involvement in drug dealing, the

quantity of drugs, and Sykes’ criminal history. The govern-

ment observed that Sykes was nearly a career offender, and if

he had been, his Guidelines range would have been 210 to 262

months’ imprisonment.

Sykes asserted that the government’s invocation of the

Brown murder violated the spirit, though not the rule, of Ap-

prendi v. New Jersey, 530 U.S. 466 (2000), which requires “that

juries make factual findings that increase either the minimum

or maximum length of a statutory sentencing range.” Faulkner

I, 793 F.3d at 757. He maintained his innocence of the shoot-

ing. Sykes further argued that he was a street-level dealer sell-

ing small quantities of drugs, and so the government’s re-

quested sentence would be disparate from those of his simi-

larly situated co-defendants. Finally, Sykes explained that

while his criminal history was significant, it did not include

weapons-related or violent convictions.

Judge Bucklo sentenced Sykes to 195 months’ imprison-

ment. She felt that the Guidelines range did not account for

all of Sykes’ conduct that she was required to consider under

the sentencing factors stated in 18 U.S.C. § 3553(a). First, alt-

hough Sykes himself was not convicted of violent crimes, he

participated in a drug conspiracy for years which he knew in-

volved violence. Second, he had not learned any respect for

the law from his prior drug convictions. Each time he was re-

18 Nos. 16-2860 & 16-3525

leased back to the community, Sykes returned to drug deal-

ing. Third, Sykes had participated in the Brown murder.

Again, however, Judge Bucklo stated that she would accord it

limited weight. Finally, Judge Bucklo noted that Sykes did not

accept responsibility for participating in the conspiracy.

Sykes presents one issue on appeal: whether his above-

Guidelines sentence was unreasonable because the district

court misapplied the Section 3553(a) factors. Section 3553(a)

provides that a sentencing court must “impose a sentence suf-

ficient, but not greater than necessary” to achieve the goals of

sentencing, which include promoting respect for the law,

punishment, deterrence, and protection of the public. 18

U.S.C. § 3553(a), (a)(2). It supplies seven factors the court

must consider in carrying out this task. Id. § 3553(a)(1)–(7).

These include accounting for the circumstances of the offense

charged, the defendant’s criminal history, the need for deter-

rence and public protection, the Guidelines range, and the de-

sire to avoid unwarranted sentence disparities among simi-

larly situated defendants. Id.

We use a two-step process to review Judge Bucklo’s sen-

tencing determination. First, “we determine whether the dis-

trict court committed any procedural error, ‘such as failing to

calculate (or improperly calculating) the Guidelines range,

treating the Guidelines as mandatory, failing to consider the

§ 3553(a) factors, selecting a sentence based on clearly errone-

ous facts, or failing to adequately explain the chosen sen-

tence—including an explanation for any deviation from the

Guidelines range.’” United States v. Reyes-Hernandez, 624 F.3d

405, 409 (7th Cir. 2010) (quoting Gall v. United States, 552 U.S.

38, 51 (2007)). Review for procedural errors is de novo. United

Nos. 16-2860 & 16-3525 19

States v. Rivera, 847 F.3d 847, 849 (7th Cir. 2017). If no proce-

dural error is found, then the sentence is reviewed for sub-

stantive reasonableness. Reyes-Hernandez, 624 F.3d at 409. A

sentence is substantively unreasonable only when the district

court abused its discretion in imposing the sentence in ques-

tion. Gall, 552 U.S. at 51.

“We presume that a sentence within a properly calculated

Guidelines range is reasonable, but there is no corresponding

presumption of unreasonableness for a non-Guidelines sen-

tence.” Reyes-Hernandez, 624 F.3d at 409 (quotation omitted).

Above-Guidelines sentences will be upheld if the district

court offered an adequate statement of reasoning therefor,

consistent with the Section 3553(a) factors. United States v.

Lewis, 842 F.3d 467, 477 (7th Cir. 2016). The appellate court

must determine whether the justification offered comports

with the degree of variance from the Guidelines. Id. at 477–78.

This assessment accounts for the sentencing judge’s “superior

position to find facts and judge their import under section

3553(a) in the individual case.” Id. at 478 (quotation omitted).

Sykes argues that Judge Bucklo made three errors in arriv-

ing at his above-Guidelines sentence. First, he alleges that she

gave too much weight to his criminal history. Most of the

prior convictions were for drug distribution which were sub-

sumed into the conspiracy charge. These were thus already

considered in arriving at the Guidelines range, and should not

have been used to further increase his sentence. Second, Sykes

argues that the Brown murder should have been accorded no

weight at all, as he was never charged with the murder or

tried by a jury, and the evidence arrayed against him was un-

reliable. Though Judge Bucklo said she gave the matter little

weight, Sykes believes she in fact gave it substantial weight as

20 Nos. 16-2860 & 16-3525

shown by her substantial upward variance from the Guide-

lines. Third, Sykes believes that Judge Bucklo failed to con-

sider the disparity between his sentence and those of similar

co-defendants. He notes that the other street-level dealers re-

ceived sentences ranging from 21 to 75 months. Sykes claims

that Judge Bucklo did not address the question of disparity or

justify his sentence in comparison with the others. 3

None of these allegations of error have merit. Sykes does

not dispute his criminal history. The presentence report dis-

cusses an extensive history with ten convictions, spanning

nine years, with eight of those for drug-related offenses. Sykes

contends that Judge Bucklo unduly relied on his criminal his-

tory despite many of the convictions being subsumed into his

offense conduct. Sykes also argues that to the extent they were

properly considered, the prior convictions were minor mari-

juana possession and distribution of small drug quantities,

and which should not count for much. But Judge Bucklo was

primarily concerned with the length of the history, and the

pattern of offenses, namely that Sykes never learned to leave

the drug dealing life behind even after so many convictions.

3 The government characterizes these as accusations of procedural

error, and couches its brief in those terms. We are not so sure. Sykes does

not clearly delineate whether he pursues a procedural or substantive chal-

lenge to the sentence. His brief says that Judge Bucklo “misapplied” the

Section 3553(a) factors and imposed a sentence which was too long.

(Docket #24 at 17). Misapplication, as he uses the term, equates to weigh-

ing the factors incorrectly. This is not the same as failing to consider them

at all, which would be a procedural error. Additionally, his arguments em-

phasize the alleged unreasonableness of his sentence, further suggesting

that his is a substantive challenge. In the end, it matters little; Judge

Bucklo’s sentencing determination is beyond reproach even upon de novo

review.

Nos. 16-2860 & 16-3525 21

Next, Sykes suggests that Judge Bucklo should not have

concluded that he was involved in the Brown murder by a

preponderance of the evidence. He does not contest that the

conduct is a valid sentencing consideration once Judge Bucklo

made that finding, however. It appears that Sykes’ primary

point is that Judge Bucklo should have given little or no

weight to the Brown murder as an enhancement. We must,

however, take Judge Bucklo at her word when she said it was

given little weight. Judge Bucklo mentioned the murder at the

final sentencing hearing and emphasized that she would give

it less weight than what one would expect from such a serious

offense.

Finally, Judge Bucklo admittedly said nothing about dis-

parity. This was not error, however, for two reasons. First,

there is generally no disparity problem so long as the remain-

der of the sentencing explanation makes it plain that the dis-

parity was warranted. United States v. Castaldi, 743 F.3d 589,

597–98 (7th Cir. 2014). Judge Bucklo’s citation to the particular

facts of Sykes’ case make this plain.

Second, and more importantly, Sykes said precious little

about disparity himself. He cannot now fault Judge Bucklo for

failing to address it more thoroughly. His sentencing memo-

randum listed the sentences of eight co-defendants and

claimed that they were similarly situated street-level dealers.

The memorandum does not explain the facts of the co-defend-

ants’ cases, their Guidelines ranges, or any other sentencing

considerations. The only analogy Sykes offered was to Jas-

mine McClain, saying that the two “were literally standing

side-by-side making similar sales of small quantities.” But

Sykes gave no further details about why McClain received her

particular sentence. Sykes’ sentencing colloquy was similarly

22 Nos. 16-2860 & 16-3525

lacking in detail, mentioning disparity without delving into

the facts of the co-defendants’ sentences. Sykes also simply

reiterated what he said about McClain in his memorandum.

Only now, on appeal, does he come close to a developed

disparity argument, though it is still short on important de-

tails as to each of the allegedly similar co-defendants. He lists

the same eight co-defendants and their sentences and offers

the same argument regarding McClain. The only new infor-

mation relates to Kyle Pagan, where Sykes discusses Pagan’s

offense level, criminal history category, and Guidelines range.

The Pagan argument was not presented to Judge Bucklo and

we will not consider it for the first time on appeal. Ennin v.

CNH Indus. Am., LLC, 878 F.3d 590, 595 (7th Cir. 2017).

The root of Sykes’ disparity argument was revealed at oral

argument. There, counsel admitted that before Judge Bucklo,

Sykes’ trial counsel did not raise the disparity issue “as one

might have hoped it would be raised.” Instead, counsel sug-

gested that Judge Bucklo should have further addressed dis-

parity simply because she was “the same judge who had sen-

tenced all of these people.” This is no reason to question her

sentencing determination. District judges sentence numerous

defendants every year, and in multi-defendant cases, each of

the accused may be sentenced months apart. Sykes has no

right to rely on Judge Bucklo’s general familiarity with the

case as a substitute for a well-developed argument. Sykes’ fil-

ings, before both this Court and the district court, do not ade-

quately explain how the sentencing differences should be

viewed as a disparity. United States v. Boscarino, 437 F.3d 634,

638 (7th Cir. 2006) (holding that “a sentencing difference is not

a forbidden ‘disparity’ if it is justified by legitimate consider-

ations”).

Nos. 16-2860 & 16-3525 23

It is worth noting that Judge Bucklo exceeded the Guide-

lines range by just eighteen percent. This variance was well-

founded in her sentencing explanation. We find no error, pro-

cedural or substantive, in Sykes’ sentence. Castaldi, 734 F.3d

at 598–99 (sentence fifty percent above Guidelines range was

substantively reasonable with explanation from district

court); United States v. Smart, 603 F. App’x 500, 502 (7th Cir.

2015) (similar, at thirty-five percent above Guidelines); United

States v. Hayden, 775 F.3d 847, 849–51 (7th Cir. 2014) (similar,

at fifty percent above Guidelines, with a defendant whose

“real complaint,” like Sykes, “seems to be that he did not get

what he wanted, not that the district court didn’t consider the

[factors]”). We must therefore affirm the sentence.

***

Neither Faulkner nor Sykes offers sufficient reasons to call

their convictions or sentences into question. As a result, we

AFFIRM.