Petition for Writ of Certiorari — Joseph Faulkner, Petitioner v. United States

APPENDIX

i

TABLE OF APPENDICES

Memorandum Opinion and Order in the United States District Court for the

Northern District of Illinois Eastern Division

(October 9, 2014) ........................................................................................................ A-1

Final Judgment in the United States Court of Appeals for the Seventh Circuit

(July 15, 2015)............................................................................................................ A-8

Opinion in the United States Court of Appeals for the Seventh Circuit

(July 15, 2015)............................................................................................................ A-9

Amended Judgment in a Criminal Case in the United States District Court for the

Northern District of Illinois

(June 20, 2018) ......................................................................................................... A-20

Judgment in a Criminal Case in the United States District Court for the Northern

District of Illinois

(June 23, 2016) ......................................................................................................... A-21

Final Judgment in the United States Court of Appeals for the Seventh Circuit

(March 19, 2018) ...................................................................................................... A-29

Opinion in the United States Court of Appeals for the Seventh Circuit

(March 19, 2018) ...................................................................................................... A-30

Order Denying Petition for Rehearing in the United States Court of Appeals

for the Seventh Circuit

(April 11, 2018) ........................................................................................................ A-53

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

United States of America

v.

No. 13 CR 772-2

Joseph Faulkner

MEMORANDUM OPINION AND ORDER

This multi-defendant

case

charges putative members

of

the

Insane Imperial Vice Lords street gang with a range of unlawful

conduct

including

distribution.

racketeering,

Defendant

Joseph

ranking member of the gang,

armed

violence,

Faulkner,

allegedly

is charged in Counts I

drug

a

high-

(racketeering

conspiracy),

II

weapon),

(use of a firearm during a crime of violence),

IX

III

(conspiracy

(conspiracy to

and

to

distribute

commit assault with a

heroin,

Faulkner previously pled guilty,

Ill.) ,

of

a

to a

two-count

communication

in

cocaine,

Case No.

dangerous

and

and marijuana).

11

CR 120

(N.D.

superseding information charging the use

facility

in

facilitation

of

a

drug-related

felony.

On

dismiss

September

the

8,

2014,

indictment

in

Faulkner

this

filed

case,

a

pro se motion to

arguing that because

his

sentence in the earlier case reflected enhancements for the same

drug-

and firearm-related conduct that

A-1

is at the heart of the

current

charges

against

him,

unconstitutional

attempt

to

these

punish

charges

him

criminal

conduct.

argument

is barred by Witte

v.

Faulkner

filed

reply-two,

argues

that

a

Witte

The

government

counseled

U.S.

notwithstanding,

amount

twice

for

to

the

an

same

responded

that

Faulkner's

515 U.S.

389

(1995),

actually 1-in

which

and

he

double

jeopardy principles

compel dismissal of the instant indictment.

For the following

reasons, I deny Faulkner's motion.

I.

Faulkner's plea agreement in his

December 27,

2007, and February 28, 2008, Faulkner had telephone

conversations

Faulkner,

with

the

correct

individual

with

the

who

was,

unbeknownst

government.

During

to

these

Faulkner agreed to meet the individual to conduct

transactions.

arranged.

an

cooperating

conversations,

drug

2011 case stated that on

The

At sentencing,

guidelines

transactions

were

later

completed

as

the parties and the court agreed that

sentencing range was

57-71

months,

but

the government sought and received an above guidelines sentence

1

The briefing schedule entered on defendant's motion provided

that any reply by defendant was to be filed by October 2, 2014.

Faulkner's counsel did, indeed,

le a reply on that date, then

filed a second, unauthorized "additional" reply on October 6,

2014 (the day before ruling was to issue).

Although the latter

document was captioned "Defendant's Motion to File Additional

Reply

Combined With

His

Additional

Reply

in

Support of

Defendant's Motion to Dismiss Based Upon Former Jeopardy," it

was neither filed as a motion on the docket nor noticed for

hearing as L.R. 5.3 requires of all motions.

2

A-2

on

the

ground

enhancement.

previous

years.

convictions

was

for

firearm,

heroin

The

§ 3552 (a)

factors

supported

such

an

Specifically, the government pointed to Faulkner's

police with a

extensive

that

violence

as well as

concluded that

because

and

fleeing

from

the

Faulkner's own admission

trafficking over a

court

warranted

armed

period of

an

Faulkner's

to

roughly fifteen

above-guidelines

"criminal

sentence

history

is

not

accurately reflective of the person that he actually was,

the

level of drug dealing that he was engaged in,

impact that it has on the corrununi t y. "

noted

that

the

characteristically

distribution "is

and the serious

The district court also

violent

nature

of

drug

reflected in some of the past history of the

defendant."

IL

The Double Jeopardy Clause of the Fifth Amendment provides

that

no

person

"shall

be

subject

for

the

twice put in jeopardy of life or limb."

It "affords a

defendant

same

U.S.

offense

to

be

Const. Amend. V.

three basic protections," prohibiting:

1) a second prosecution for the same offense after an acquittal,

2)

and

a

second prosecution for the same offense after conviction,

3)

Johnson,

389

multiple

467 U.S.

punishments

493,

498

for

(1984).

the

same

offense."

In Witte v.

U.S.,

Ohio

V.

515 U.S.

(1995), the Court held that prosecution for conduct that was

3

A-3

previously the basis for a sentencing enhancement in a separate

case did not violate the Double Jeopardy Clause.

Witte,

In

the

defendant

pled

guilty

to

a

charge

of

attempting to possess marijuana with the intent to distribute.

Id.

at 393.

At sentencing, the court considered evidence that

the

defendant

was

enhanced his

Defendant

in

cocaine

sentence based on that

conduct.

argued

also

that

involved

his

later

transactions

prosecution

Id.

for

and

at

393-94.

the

cocaine

offenses violated the Double Jeopardy Clause.

The Court rejected Witte's argument, holding that "the use

of evidence of related criminal conduct to enhance a defendant's

sentence

limits

for

a

separate crime within the

authorized statutory

does

not

constitute punishment

that

for

the meaning of the Double Jeopardy Clause."

399

Court

(citing Williams

reiterated

s

v.

Oklahoma,

explicit

358

U.S.

rejection,

conduct within

Witte,

576

515 U.S. at

(1959)).

in Williams,

The

of "the

claim that double jeopardy principles bar a later prosecution or

punishment

for

considered at

See also Watts,

criminal activity where

sentencing for

a

that

activity has been

separate crime."

519 U.S. at 154

Id.

at 389.

("sentencing enhancements do not

punish a defendant for crimes of which he was not convicted, but

rather increase his sentence because of the manner in which he

committed the crime of conviction")

515 U.S. at 402-03).

4

A-4

(per curiam)

(citing Witte,

Turning to the present case,

Faulkner

acknowledges,

prima

facie,

i.e.,

that

he

I note at the outset that as

bears

the

burden

that both prosecutions are for

the

conduct

used to enhance his

of

establishing,

the same offense,

sentencing in the

2011 case is the same as the conduct charged in the indictment

in this case.

(7th

Cir.

See United States v.

1997).

acknowledges

an

In

this

"overlap"

Doyle,

connection,

between

the

121 F.3d 1078, 1089

while

the

government

conduct

considered

sentencing and the conduct charged in Counts I and IX,

points

to

no

evidence

Counts

II

and

I II,

that

which

corrunitted on January 15,

the

relate

2010,

at his earlier sentencing.

specific

conduct

to violent

at

Faulkner

alleged

in

conduct allegedly

was considered by Judge Kendall

Faulkner argues that Judge Kendall

"made frequent references to the use of firearms," and to "Mr.

Faulkner's regular use of guns during gang activity and numerous

acts of armed violence."

But general statements such as these

do not, without more, establish that she considered the specific

conduct alleged in Counts II and III.

issue,

however,

prima facie

I need not linger on this

because even assuming that Faulkner had made a

showing that

all

four

counts

were considered at his previous sentencing,

in the

instant case

his double jeopardy

argument runs headlong into Witte.

Tacitly conceding that Witte,

jeopardy

claim,

Faulkner

attacks

5

A-5

on its face,

the

bars his double

Court's

rationale

as

"befuddling"

and

subsequent

Supreme

perceptions."

New Jersey,

insists

But

Court

while

530 U.S.

and Alleyne

(2005),

that

case

is

Decisions

have

altered

the

446

v.

the

cases

(2000),

unquestionably

the

cabined

v.

v.

Booker,

543 U.S.

133

S.

Ct.

2151

536 U.S.

545

(2002))-have

United States,

United States,

as

sentencing

cites-Apprendi

Faulkner

U.S.

(overruling Harris v.

"antiquated,

discretion

of

sentencing

220

(2013)

judges

to

impose sentences outside the range authorized by a jury verdict,

none of these cases overrules the principle articulated in Witte

and Watts.

Indeed,

in U.S.

v. Waltower,

643 F.3d 572

(7th Cir.

the Seventh Circuit explained at length why Watts remains

2011),

good law in

the wake

of Apprendi and Booker.

Id.

at 575-578

(observing that

Watts has not been "overturned by the Supreme

Court's

line

cases

that,

the

to

of

Apprendi" and explaining

beginning with

''Booker itself

contrary,

that

Watts

is

traction

from

his

suggests

still good law.").

Nor

citation

Mass.

does

to

2012),

Faulkner's

argument

United States

v.

gain

Gurley,

any

860

F.

in this case,

namely,

95

(D.

for

the

and is not before

"whether the jury verdict authorized"

the sentencing enhancement at issue.

Finally,

2d

which explicitly addressed "the exact issue" that

was not before the Court in Witte and Watts,

me

Supp.

sake

of

Id. at 115.

completeness,

I

briefly address

the four-sentence argument Faulkner raises in his unauthorized,

6

A-6

"additional

bars

his

reply,"

which

is

that

prosecution because

the

the

Double

Jeopardy Clause

government agreed to

dismiss

the original indictment in his 2011 case with prejudice at the

time

of

sentencing.

unadorned

United

citation

States

v.

In

to

this

the

Davis,

connection,

Seventh

2014

WL

dismissal with prejudice means

Circuit's

4402121

the

Faulkner

offers

an

observation,

in

(7th Cir.

government is

the ability to reindict the defendant [] . "

Davis,

2014)

that

"surrendering

however,

was

about the finality of a lower court decision for the purpose of

appeal,

and had nothing at all

Double

Jeopardy

contention

that

Clause.

Davis

to

do with application of the

Faulkner's

compels

dismissal

belated,

of

the

barebones

indictment

in

this case is unavailing.

III.

For the

foregoing

reasons,

defendant

Faulkner's motion to

dismiss the indictment on grounds of double jeopardy is denied.

ENTER ORDER:

Dated: October 9, 2014

Elaine E. Bucklo

United States District Judge

7

A-7

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Everett McKinley Dirksen United States Courthouse

Room 2722 • 219 S. Dearborn Street

Chicago, Illinois 60604

Office of the Clerk

Phone: (312} 435--5850

www.ca7.uscourts.gov

CERTIFIED COPY

FINAL JUDGMENT

July 15, 2015

Before:

I-

DIANE P. WOOD, Chief Judge

ILANA DIAMOND ROVNER, Circuit Judge

THERESA L. SPRINGMANN, District Court Judge*

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of thl¥Tlnite

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Court af1,t.ppeals fff (M

Sevcmh Circu1tr

UNITED STATES OF AMERICA,

Plaintiff - Appellee

No.14-3332

v.

JOSEPH FAULKNER, also known as Little Joe,

Defendant - Appellant

Originating Case Information:

District Court No: 1:13-cr-00772-2

Northern District of Illinois, Eastern Division

District Judge Elaine E. Buck.lo

The judgment of the District Court is AFFIRMED in accordance with the decision of this court

entered on this date.

*Hon. Theresa L. Springmann of the Northern District of Indiana, sitting by designation.

form name: c7_Fina1Judgment(form ID: 132.)

A-8

,·._.

CERTIFIED COPY

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No.14-3332

UNITED STATES OF AMERJCA,

PlaintiffAppellee,

v.

JOSEPH FAULKNER,

Defendant-Appellant.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 13 CR 772-2 - Elaine E. Bucklo, Judge.

ARGUED APRIL 13, 2015 - DECIDED JULY 15, 2015

Before WOOD, Chief Judge, ROVNER, Circuit Judge, and

SPRlNGMANN, District Judge.·

WOOD, Chief Judge.

Joseph Faulkner brings this appeal

because he believes that his rights under the Double Jeopardy Clause of the Fifth Amendment have been violated. In

2011 Faulkner pleaded guilty to two counts of the use of a

•Hon.Theresa L. Springmann of the Northern District of Indiana, sitting by designation.

A-9

No.14-3332

2

communication facility in facilitation of a drug-related felony; he was sentenced to a 91-month term of imprisonment

on those charges. Two years later, he-along with several

other members of the Imperial Insane Vice Lords gang-was

indicted on a variety of conspiracy, firearms, and drug

charges. Faulkner moved to dismiss the new indictment because, he argued, the judge enhanced his 2011 sentence

based on the same conduct that the 2013 indictment covered.

Worse, he asserted, the charges included in the 2011 indictment (which were dropped pursuant to a plea agreement)

are the same as those in the current indictment. He thus argues that he is being "twice put in jeopardy" on the "same

offence," as the Constitution puts it. If that were the case, he

would be entitled to have the 2013 indictment dismissed. But

we conclude that it is not, and so we affirm the district

court's denial of his motion to dismiss.

I

In 2011 Faulkner was indicted on four counts of heroin

distribution in violation of 21 U.S.C. § 841(a)(l). He later

agreed to plead guilty to two counts of the use of a communication facility in facilitation of a drug-related felony, in

violation of 21 U.S.C. § 843(b ). Each count carried a maximum term of imprisonment of four years. See 21 U.S.C.

§ 843(d)(l). In exchange for the guilty plea, the government

agreed to move to dismiss the original indictment. At sentencing and upon the government's motion, the court granted that motion and dismissed the original heroin distribution charges.

After an initial dispute, the government and Faulkner

agreed that the applicable advisory sentencing range under

the U.S. Sentencing Guidelines was 57 to 71 months for the

A-10

No.14-3332

3

two communication facility charges. The government nonetheless argued for an above-guidelines sentence, in part on

the ground that Faulkner's criminal history category did not

accurately reflect his record. See 18 U.S.C. § 3553(a)(l) (identifying "the history and characteristics of the defendant" as a

sentencing factor). In support of that position, the government relied on Faulkner's admission in the plea agreement

that he had engaged in heroin trafficking as part of a drug

gang for many years. It asserted that the court should take

these activities into account in assessing Faulkner's history

and characteristics.

The district judge agreed and imposed an aboveguidelines sentence of 91 months. She noted that Faulkner's

official criminal history did not fully represent "the level of

drug dealing that he was facilitating ... [which] was a very

high level." The judge also emphasized Faulkner's violent

past: "[W]hen anyone is distributing drugs, through the

street gangs, there also is incumbent with that violence. And

the violence is reflected in some of the past history of the defendant." She highlighted Faulkner's use of firearms, explaining that "handguns were used regularly in the course

of this distribution."

In 2013, Faulkner and other members of the Imperial Insane Vice Lords were before the court on new charges. This

time the indictment accused Faulkner of engaging in a racketeering conspiracy in violation of 18 U.S.C. § 1962 (Count I);

conspiring to commit assault with a dangerous weapon as

part of racketeering activity in violation of 18 U.S.C.

§ 1959(a)(6) (Count II); carrying, brandishing, and discharging a firearm during and in relation to a crime of violence in

violation of 18 U.S.C. § 924(c)(l)(A) (Count III); and conspir-

A-11

No.14-3332

4

ing to distribute heroin, cocaine, and marijuana in violation

of 21 U.S.C. § 846 (Count IX). Counts II and III specifically

referred to an incident that occurred on January 15, 2010.

Faulkner moved to dismiss the indictment on double

jeopardy grounds. He principally claimed that he had already been punished for the conduct described in the 2013

indictment, because the judge in his 2011 case had taken that

conduct into account when sentencing him on the communication facility charges. The district court denied the motion,

finding that the claim was precluded by Witte v. United

States, 515 U.S. 389 (1995). Faulkner then timely appealed.

We have jurisdiction under 28 U.S.C. § 1291 and the collateral order doctrine, which allows a criminal defendant immediately to appeal a denial of a motion to dismiss an indictment on double jeopardy grounds. See Abney v. United

States, 431 U.S. 651, 662 (1977).

II

We review de novo a district court's denial of a motion to

dismiss an indictment based on double jeopardy. See United

States v. Doyle, 121 F.3d 1078, 1083 (7th Cir. 1997). The

Double Jeopardy Clause of the Fifth Amendment provides

that "[n]o person shall ... be subject for the same offence to

be twice put in jeopardy of life or limb." U.S. CONST. amend.

V. The Clause "applies both to successive punishments and

to successive prosecutions for the same criminal offense."

United States v. Dixon, 509 U.S. 688, 696 (1993); see also Ohio

v. Johnson, 467 U.S. 493, 498 (1984). It protects against both

actual punishment and the attempt to convict and punish a

defendant twice for the same crime. See Price v. Georgia, 398

U.S. 323, 326 (1970).

A-12

No.14-3332

5

In the district court, Faulkner's principal claim was that

the government was attempting to punish him twice for the

same conduct. On appeal, it appears that he is also arguing

that the indictment subjects him to multiple prosecutions for

the same offense. For the sake of completeness, we will address both claims.

A

We begin with Faulkner's multiple punishment argument: that the indictment at issue in this case is an attempt to

punish him for conduct for which he has already been punished. Faulkner argues that comments made by the judge at

his 2011 sentencing, including references to drugs, gang activity, and violence, demonstrate that he was punished in

that proceeding for the same conduct charged in his current

indictment.

Faulkner overstates the overlap between the two cases.

Counts II and III of the 2013 indictment relate to a specific

incident of violent conduct that took place on January 15,

2010, but the judge made no reference to this particular episode at the sentencing hearing. Nevertheless, even if the

conduct were identical, Faulkner's claim suffers from a more

fundamental problem. The Supreme Court has held that the

"use of evidence of related criminal conduct to enhance a

defendant's sentence for a separate crime within the authorized statutory limits does not constitute punishment for that

conduct within the meaning of the Double Jeopardy

Clause." Witte, 515 U.S. at 399. Thus, for purposes of the

Double Jeopardy Clause, any use the judge made of evidence of Faulkner's involvement with controlled substances,

gangs, and violence did not constitute "punishment" for that

A-13

No.14-3332

6

conduct, and thus a later conviction on the basis of that conduct does not violate the Clause.

Faulkner argues that Witte should not control here, but

he has not explained why we, a lower court, are authorized

to disregard binding precedent from the Supreme Court.

Perhaps recognizing the untenability of that position, he

suggests that Witte is distinguishable from our case. But in

fact, the pertinent circumstances are quite similar. When sentencing Witte on a marijuana-related charge, the judge took

into consideration uncharged conduct involving cocaine. Id.

at 394. When Witte was later charged with importing cocaine

(the same cocaine that had been considered in the previous

proceedings), he moved to dismiss the indictment on double

jeopardy grounds. Id. at 394-95. The Supreme Court upheld

the denial of Witte' s motion, concluding that the consideration of uncharged conduct in the context of sentencing is not

"punishment" under the Double Jeopardy Clause. Id. at 399.

Just as in Witte, Faulkner's involvement with drugs, gangs,

and firearms was uncharged conduct considered by the

judge in the sentencing context. Therefore, just as in Witte,

this consideration does not constitute "punishment" for

purposes of double jeopardy.

Faulkner also suggests that Witte is no longer good law.

He argues that Witte' s holding relied critically on the mandatory character of the Sentencing Guidelines, and thus, with

its analytical underpinning destroyed by United States v.

Booker, 543 U.S. 220, 245 (2005), it has lost all force. That argument, however, must be directed to the Supreme Court.

All we can do is confirm that Faulkner has preserved it.

Even if Faulkner is making the more modest point that

Witte applies only if safeguards analogous to the provisions

A-14

/

No.14-3332

7

in the Guidelines exist, we would reject it. Witte' s musings

about the guidelines were not in the section explaining why

there was no double jeopardy problem with Witte' s prosecution. See Witte, 515 U.S. at 404 (explaining that Witte's argument about the guidelines was ''not a claim that the instant

cocaine prosecution violates principles of double jeopardy").

The Court's discussion of double jeopardy referred to the

long, pre-guidelines history of judges taking other relevant

conduct into consideration when determining punishment.

It noted that "[r]egardless of whether particular conduct is

taken into account by rule or as an act of discretion, the defendant is still being punished only for the offense of conviction," and it confirmed that "[a] defendant has not been

'punished' any more for double jeopardy purposes when

relevant conduct is included in the calculation of his offense

level under the Guidelines than when a pre-Guidelines

court, in its discretion, took similar uncharged conduct into

account." Id. at 401-02.

Another reason to doubt that Witte has been undermined

comes from the Court's reasoning in Peugh v. United States,

133 S. Ct. 2072 (2013). Peugh demonstrates that the postBooker advisory guidelines still have considerable force.

There, the Court singled out the anchoring nature of the

guidelines when it found a violation of the Ex Post Facto

Clause where the defendant was sentenced under a stricter

version of the guidelines than the version in effect at the

time of the offense. See id. at 2087. Finally, the Court has given no indication that it has retreated from Witte, and our sister circuits continue to rely on it. See, e.g., United States v.

Lawrence, 735 F.3d 385, 427 (6th Cir. 2013); United States v.

Moore, 670 F.3d 222,236 (2d Cir. 2012); United States v. Lomeli,

596 F.3d 496, 502 (8th Cir. 2010); see also United States v. An-

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No. 14-3332

8

drews, 447 F.3d 806, 810 (10th Cir. 2006) (discussing Witte's

analysis of recidivism statutes).

Faulkner next argues that recent Supreme Court decisions requiring juries to find the factual predicates for sentencing enhancements have implicitly overruled Witte. He is

mistaken. The cases to which he points, Alleyne v. United

States, 133 S. Ct. 2151 (2013), and Apprendi v. New Jersey, 530

U.S. 466 (2000), require that juries make factual findings that

increase either the minimum or maximum length of a statutory sentencing range. Faulkner's sentence, though aboveguidelines, still fell within the normal statutory range; thus,

these cases are inapplicable. Moreover, neither one called

Witte' s validity into question; the Witte Court explicitly noted that its holding regarding the consideration of uncharged

conduct applied only where the original sentence was "within the authorized statutory limits." Witte, 515 U.S. at 399.

Witte has not been implicitly overruled by any of the cases Faulkner has mentioned. A straightforward application of

Witte leads to the conclusion that his successive punishment

claim fails, because the consideration of uncharged conduct

in the sentencing context is not "punishment" within the

meaning of the Double Jeopardy Clause.

B

Next, we address Faulkner's multiple prosecution claim:

that the crimes for which he was either originally indicted or

to which he eventually pleaded guilty in 2011 are the same

as those with which he is now charged. At times Faulkner

presents this contention as a variation on his multiple punishment claim, but it is best characterized as an argument

against multiple prosecutions for the same offense. Regard-

A-16

No.14-3332

9

less of the exact parsing of this allegation, it fails for one

basic reason: the offenses with which Faulkner was originally charged (and those to which he pleaded guilty) are not the

same as those charged under the current indictment.

To succeed on this type of double jeopardy claim, Faulkner must establish a prima facie showing that both prosecutions were for identical offenses; if he does, the burden shifts

to the government to show, by a preponderance of the evidence, that the indictments (or informations) charged different crimes. See Doyle, 121 F.3d at 1089. 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 element not contained in the other." Doyle, 121 F.3d at 1089.

We first consider the heroin distribution charges, which

were ultimately dropped in exchange for Faulkner's guilty

plea. The government argues that jeopardy does not attach

to charges dismissed with prejudice pursuant to a plea

agreement. This is an unsettled proposition. Compare United

States v. Dionisio, 503 F.3d 78, 79 (2d Cir. 2007) Oeopardy

does not attach to a dismissal in these circumstances, when

there was no "adjudication of elements of the offense

charged, in a way that reflected a genuine risk of conviction"), with United States v. Mintz, 16 F.3d 1101, 1106 (10th

Cir. 1994) (affirming dismissal based on double jeopardy because defendants had been previously indicted for the same

conspiracy in a charge that had been dismissed with prejudice based on a plea agreement). We need not wade into this

debate because, even if we assume that jeopardy did attach,

Faulkner has not shown that the newly charged offenses are

identical to the heroin distribution counts.

A-17

10

No. 14-3332

Counts II and III (conspiracy to commit assault with a

dangerous weapon and using a firearm during a crime of

violence) are clearly distinct from heroin distribution. Even

the more factually similar charges, Counts I and IX (racketeering conspiracy and conspiracy to distribute controlled

substances), survive the Blockburger test. Conspiracy involves the element of an agreement, which is not an element

of a substantive drug distribution offense; on the other side,

the substantive offense requires completion of the crime,

which is not an element of conspiracy. See Pinkerton v. United

States, 328 U.S. 640, 643 (1946) ("It has been long and consistently recognized by the Court that the commission of the

substantive offense and a conspiracy to commit it are separate and distinct offenses."); CHARLES DOYLE, CONG.

RESEARCH SERV., R41222, FEDERAL CONSPIRACY LAW: A

SKETCH 7 (2010) (concluding that there are no double jeopardy concerns with the successive prosecution of a "conspiracy and its attendant substantive offense").

The same analysis applies to the offense to which Faulkner eventually pleaded guilty: the use of a communication

facility to facilitate a drug-related felony. This offense has

little to do with Faulkner's current firearms-related charges.

The racketeering and distribution conspiracy charges are

distinct from this substantive offense for the reasons

plained above. Thus, we reject Faulkner's multiple prosecution claim because none of his previously charged offenses

are identical to the offenses charged in the current indictment.

ex-

III

Faulkner's multiple punishment claim fails because it is

squarely foreclosed by Witte. His effort to show that he is the

A-18

No.14-3332

11

victim of multiple prosecutions for the same offense falls

short because he has not shown that the offenses with which

he was charged and to which he pleaded guilty in 2011 are

identical to those alleged in his current indictment. We

therefore AFFIRM the district court's denial of Faulkner's motion to dismiss based on the Double Jeopardy Clause.

A-19

DEFENDANT: JOSEPH FAULKNER

CASE NUMBER: 13 CR 772-2

UNITED STATES DISTRICT COURT

Northern District of Illinois

AMENDED JUDGMENT IN A CRIMINAL CASE

UNITED STA TES OF AMERICA

v.

JOSEPH FAULKNER

Date of Original Judgment: 6/23/2016

(Or Date of Last Amended .Judgment)

Case Number:

13 CR 772-2

USM Number:

43059-24

Defendant's Attorney

Reason for Amendment:

D

Correction of Sentence on Remand ( 18 U.S.C. 3742( t)(I)

and 12))

Reduction of Sentence for Changed Circumstances (Fed. R.

D

Crim. P. 35(b))

Correction of Sentence by Sentencing Court (Fed. R. Crim. P.

D

35(a))

(81

Com.:ction ofSentem:c for Clerical Mistake (Fed. R. Crim. P.

D

D

D

D

36)

D

THE DEFENDANT:

D pleaded guilty to count(s)

D pleaded nolo contendere to count(s)

Modification of Supervision Conditions ( 18 U.S.C. §§ 3563(c) or

3583(e))

Modification of Imposed Term of Imprisonment for htraordinary

and Compelling Reasons ( 18 U.S.C. § 3582(c)( I))

Modification orlmposed Term of Imprisonment for Retroactive

Amcndment(s) to the Sentencing Guidelines {18 U.S.C. §

3582(c)(2))

Direct Motion to District Court Pursuant

28 U.S.C. § 2255

or

18 U.S.C. § 3559(c)(7)

Modification of Restitution Order ( 18 U.S.C. § 3664)

D

D

which was accepted by the court.

(81 was found guilty on count(s) ls, 2s, 3, 9s after a plea of not guilty.

The defendant is adjudicated guilty of these offenses:

Title & Section

Nature of Offense

18 U.S.C.§1962 (d)

Racketeering Conspiracy

18 U.S.C.§1959(a)(6)

Offense Ended

9/2013

Conspiracy to Commit Assault With a Dangerous Weapon in

Count

Is

9/2013

1s

9/2013

3s

9/2013

9s

Aid of Racketeting

18 U.S.C.§924(c)(l)(A)(iii)

Discharge of a Fireann During and in Relationto a Crime of

Violence

21 U.S.C.§846

Conspiracy to Possess With Intent to Distribute and Distributio

of Controlled Substances

21 U.S.C.§841 (b)(I )(A)

The defendant is sentenced as provided in pages 2 through 2 of this judgment. The sentence is imposed pursuant to the Sentencing

Reform Act of 1984. Other than the amendments or modifications stated in this judgment, the judgment previouslv entered shall

stand. (See attachments)

D The defendant has been found not guilty on count(s)

(81 Count(s) I. 2. 3, and 9 dismissed on the motion of the United States.

It is ordered that the defendant must notify the United States attorney for this district within 30 days of any change of name,

residence, or mailing address until all fines. restitution, costs, and special assessments imposed by this judgment are fully paid. If ordered to

pay restitution, the defendant must notify the court and United States attorney of material changes in economic circumstances.

June 20, 2018

Date of Imposition of Judgment

Hon. Elaine E. Bucklo, U.S. District Judge

Name and Title of Judge

A-20

()Aft: (,-

/.20 /

;)...o

IB

Case: 1:13-cr~00772 Document

1566 Filed: 06/24/16 Page 1 of 8 PagelD #:13758

UNITED STATES DISTRICT COURT

Northern District of Illinois

)

)

UNITED STATES OF AMERICA

v.

)

)

)

)

)

)

)

)

JOSEPH FAULKNER

4

JUDGMENT IN A CRIMINAL CASE

Case Number:

13 CR 772 - 2

USM Number:

43059-424

STEVEN GREENBERG

Defendant's Attorney

THF. DEFENDANT:

0 pleaded guilty to count(s)

0 pleaci,!d nolo contendere to count(s)

which was accepted by thoe court.

[2J was found guilty on count(s) I s,2s,3,9s after a plea of not guilty.

The defendant is adjudicated guilty of these offenses:

Title & Section

Nature of Offense

18 L.S.C. §1962(d)

Offense Ended

13

18 U.S.C. §1959(a)(6)

9/2013

2s

9/2013

3s

9/2013

9s

Conspiracy to Commit Assault With a Dangerous Weapon in

Count

Is

Aid of Racketeering

18 L'.S.C. §924(c)(J)(A)(iii)

Discharge of a Firearm During and in Relation to a Crime of

Violence

11 LS.C.§846

Conspiracy to Possess With Intent to Distribute and

Distribution of Controlled Substances

21 U.S.C. §841(b)(l)(A)

The: ciefondant is sentenced as provided in pages 2 through

Reibnn Act of 1984.

of this judgment. The sentence is imposed pursuant ro the Sentencing

Th<'" defendant has been found not guilty on count(s)

l2'.J Count(s) 1,2.3.and 9 of the Original Indictment dismissed on the motion of the United States.

ordcn:d that the defendant must notify the United States Attorney for this District within 30 days of any change of name. residence. or

,iddress until all fines, restitution, costs, and special assessments imposed by this judgment are fully paid. If ordered to pay

res,itution. the defendant must notify the court and United States Attorney of material changes in economic circumstances.

23 JUNE 2016

-,

Date of Imposition of Judgment

ELAINE E. BUCKLO

U.S. District Judge

Name and Title of Judge

Date

A-21

Case: 1:13-cr-00772 Document#: 1566 Filed: 06/24/16 Page 2 of 8 PagelD #:13759

:?A51, !Rev. 02/2212016) Judg.mem in a Criminal Case

DEFENDANT: JOSEPH FAULKNER

CASE '<UMBER: 13 CR 772 - 2

IMPRISONMENT

The: del(:ndant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a total term of:

THIRTY (30) YEARS ON EACH OF Counts ls and 9s to run concurrently with each other and the sentence imposed in I t CR 2 l O;

THIRTY -SIX (36) MONTHS on Count 2s to run concurrently with Counts Is and 9s and the sentence imposed in l I CR 210: and ONE

HUNDRED TWENTY ( 120) MONTHS on Count 3s to run CONSEClJTIVEL Y to the sentencing imposed on Counts I s,2s. 9s and the

sentence imposed in 11 CR 210. Defendant shall be given credit for time served on the sentence imposed on 11 CR 210.

The court makes the following recommendations to the Bureau of Prisons: Pekin, IL

The defendant is remanded to the custody of the United States Marshal.

0

The defendant shall surrender to the United States Marshal for this district:

D at

on

as notified by the United States Marshal.

[] The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons:

0

0

0

before 2:00 pm on

as notified by the United States Marshal.

as notified by the Probation or Pretrial Services Office.

RETURN

l lnvc e,:ecuted this judgment as f o l l o w s : - - - - - - - - - - - - - - - - -

Defendant delivered on

to

------------- at- - - - -

,_,.,______, with a certified copy of this

STATES MARSHAL

By

A-22

DEPUTY UNITED STATES MARSHAL

Case: 1:13-cr-00772 Document#: 1566 Filed: 06/24/16 Page 3 of 8 Page ID #:13760

02/22/2016) Judgment in a Criminal Ca,c

3 of8

CA.SE '\UMBER: 13 CR 772 - 2

:'.\1ANDATORY CONDITIONS OF SUPERVISED RELEASE PURSUANT TO 18 U.S.C § 3583(d)

re lease from imprisonmen.\you sha!I b.e on s~w:rvis.e~ releaJe. for.~. te~

(5) XEAR$ 01;!. eac-h

or:

~f¢~l1i1~1lS,3$r9$·J0:fti~ fO~CUIT~tl, ~tli;eac~ Qt.her:~i'FPIU{J{;t~) YEARS. Qn·cmmt2s to .run concurrently

with the tenn.ofsupe.rvised release jmpos¢on·Couutsls,3s,atid9s;.

You must report to the probation office in the district to which you are released within 72 hours of release from the custody of the

Bureau of Prisons. The court imposes those conditions identified by checkmarks below:

the period of supervised release:

( t you shall not commit another Federal, State, or local crime.

1.2) you shall not unlawfully possess a controlled substance.

(3) you shall attend a public, private, or private nonprofit offender rehabilitation program that has been approved by the court, if

an approved program is readily available within a 50-mile radius of your legal residence. [Use for a first conviction of a

domestic violence crime, as defined in§ 3561(b).]

(1) you shall register and comply with all requirements of the Sex Offender Registration and Notification Act (42 lJ.S.C. §

16913).

{~\ you shall cooperate in the collection ofa DNA sample if the collection of such a sample is required by law.

(6) you shall refrain from any unlawful use of a controlled substance AND submit to one drug test within 15 days of release on

supervised release and at least two periodic tests thereafter, up to I 04 periodic tests for use of a controlled substance during

each year of supervised release. [This mandatory condition may be ameliorated or suspended by the court for any defendant

if reliable sentencing information indicates a low risk of future substance abuse by the defendant.)

DISCRETIONARY CONDITIONS OF SUPERVISED RELEASE PURSUANT TO 18 U.S.C § 3563(b) AND

18 u.s.c § 3583(d)

Discretionary Conditions - The court orders that you abide by the following conditions during the term of supervised release because such

conditions are reasonably related to the factors set forth in§ 3553(a)(I) and (a)(2)(B), (C). and (D}: such conditions involve only such

deprivations of liberty or property as are reasonably necessary for the purposes indicated i n § ~ {a)(l) (B), (C), and (D); and such

conditions are consistent with any pertinent policy statement issued by the Sentencing Commission pursuant to 28 U.S.C. 994a.

The court imposes those conditions identified by checkmarks below:

During r.he period of supervised release:

( t)

12)

(3)

(4)

(5)

D (6)

Ci)

(8)

(9)

( t 0)

you shall provide financial support to any dependents if financially able.

you shall make restitution to a victim of the offense under§ 3556 (but not subject to the limitation of§ 3663(a) or

§ 3663A(c)(l)(A)).

you shall give to the victims of the offense notice pursuant to the provisions of§ 3555, as follows:

you shall seek, and work conscientiously at, lawful employment or pursue conscientiously a course of study or

vocational training that will equip you for employment.

you shall refrain from engaging in a specified occupation, business, or profession bearing a reasonably direct relationship

or profession only to a stated

to the conduct constituting the offense, or engage in such a specified occupation,

degree or under stated circumstances; (if checked yes, please indicate restriction(s))

you shall refrain from knowingly meeting or communicating with any person whom you know to be engaged, or

planning to be engaged, in criminal activity and from:

D visiting the following type of places:

.

D knowingly meeting or communicating with the following persons:

you shall refrain from D any or [81 excessive use of alcohol (defined as

having a blood alcohol concentration greater

), or any use of a narcotic drug or other controlled substance, as defined in § 102 of the Controlled

than 0.08; or D

Substances Act (21 U.S.C. § m). without a prescription by a licensed medical practitioner.

you shall refrain from possessing a firearm, destructive device, or other dangerous weapon.

[81 you shall participate, at the direction ofa probation officer, in a substance abuse treatment program, which may

include urine testing up to a maximum of I04 tests per year.

i8J you shall participate, at the direction of a probation officer, in a mental health treatment program, which may include

the use of prescription medications.

D you shall participate, at the direction of a probation officer, in medical care; (if checked yes. please specify:

.)

(intermittent confinement): you shall remain in the custody of the Bureau of Prisons during nights, weekends. or other

A-23

Case: 1:13-cr-00772 Document#: 1566 Filed: 06/24/16 Page 4 of 8 PagelD #:13761

2.J5i3 (Rev, 02122/2016) Judgm.:nf in a Criminal Case

D

l I :}

l 12)

(13)

( 14)

( 15)

l 16)

( 17)

( 18)

( I 9)

LJ

n

(20)

n

(2:)

LJ

(12)

(23)

(24)

4 of8

intervals of time, totaling

[no more than the lesser of one year or the term of imprisonment authorized for the

offense]. during the first year of the term of supervised release (provided, however, that a condition set forth in§

3563(b)(10) shall be imposed only for a violation ofa condition

release in accordance with§ 3583(e)(2)

and only when facilities are available) for the following period

(community confinement): you shall reside at, or participate in the program ofa community corrections facility

(including a facility maintained or under contract to the Bureau of Prisons) for all or part of the term of supervised

release, for a period of

months.

you shall work in community service for

, or refrain from residing in a specified place or area:

you shall reside in the following place or area:

you shall remain with in the jurisdiction where you are being supervised, unless granted permission to leave by the court

or a probation officer.

you shall report to a probation officer as directed by the court or a probation officer.

[gJ you shall permit a probation officer to visit you [gj at any reasonable time or D as specified:

[gJ at home

[gJ at work

D at school

D at a community service location

[gj other reasonable location specified by a probation officer

[gj

you shall permit confiscation of any contraband observed in plain view of the probation officer.

you shall notify a probation officer promptly, within Tl hours, of any change in residence, employer, or workplace and,

absent constitutional or other legal privilege, answer inquiries by a probation officer.

you shall notify a probation officer promptly, within 72 hours, if arrested or questioned by a law enforcement officer.

(home confinement): you shall remain at your place ofresidence for a total of

months during nonworking hours.

[This condition may be imposed only as an alternative to incarceration.]

D Compliance with this condition shall be monitored by telephonic or electronic signaling devices (the selection of

which shall be determined by a probation officer). Electronic monitoring shall ordinarily be used in connection

with home detention as it provides continuous monitoring of your whereabouts. Voice idenrification may be used

in lieu of electronic monitoring to monitor home confinement and provides for random monitoring of your

whereabouts. If the offender is unable to wear an electronic monitoring device due to health or medical reasons. it

is recommended that home confinement with voice identification be ordered, which will provide for random

checks on your whereabouts. Home detention with electronic monitoring or voice identification is not deemed

appropriate and cannot be effectively administered in cases in which the offender has no bona fide residence, has a

history of violent behavior, serious mental health problems, or substance abuse; has pending criminal charges

elsewhere: requires frequent travel inside or outside the district: or is required to work more than 60 hours per

week.

0 You shall pay the cost of electronic monitoring or voice identification at the daily contractual rare, if you are

financially able to do so.

D The Court waives the electronic/location monitoring component of this condition.

you shall comply with the terms of any court order or order of an administrative process pursuant to the law of a State,

the District of Columbia, or any other possession or territory of the United States, requiring payments by you for the

support and maintenance of a child or of a child and the parent with whom the child is living.

(deportation): you shall be surrendered to a duly authorized official of the Homeland Security Department for a

determination on the issue of deportability by the appropriate authority in accordance with the laws under the

Immigration and Nationality Act and the established implementing regulations. If ordered deported, you shall not

reenter the United States without obtaining, in advance, the express written consent of the Attorney General or the

Secretary of the Department of Homeland Security.

you shall satisfy such other special conditions as ordered below.

(if required to register under the Sex Offender Registration and Notification Act) yous.hall submit at any time, with or

without a warrant, to a search of your person and any property, house, residence, vehicle. papers, computer, other

electronic communication or data storage devices or media, and effects, by any law enforcement or probation officer

having reasonable suspicion concerning a violation of a condition of supervised release or unlawful conduct by you, and

by any probation otlicer in the lawful discharge of the officer's supervision functions (see special conditions section}.

Other:

SPECIAL CONDITIONS OF SUPERVISED RELEASE PURSUANT TO 18 U.S.C. 3563(b)(22) and 3583(d)

The court imposes those conditions identified by checkmarks below:

During the term of supervised release:

{I)

if you have not obtained a high school diploma or equivalent, you shall participate in a General Educational

Development (GED) preparation course and seek to obtain a GED within the first year of supervision.

(2)

you shall participate in an approved job skill-training program at the direction of a probation officer within the tirst 60

days of placement on supervision.

n

A-24

Case: 1:13-cr-00772 Document

!IS,;. .2a>il [Rev. 02!2212016) Judgment in a Criminal Case

Sit::~,

-·

1566 Filed: 06/24/16 Page 5 of 8 PagelD

5 or 8

Relea,e

DEFENDANT: JOSEPH FAULKNER

CASE \'UMBER: 13 CR 772 2

(3)

(4)

(5)

LJ

(6)

(7}

(8)

(9)

n......J

( i C,)

(!l)

(l 2)

( i 3)

13762

you shall, if unemployed after the first 60 days of supervision, or if unemployed for 60 days after termination or lay-off

from employment, perform at least 20 hours of community service per week at

direction of the C.S. Probacion Office

until gainfully employed. The amount of community service shall not exceed

hours.

you shall not maintain employment where you have access to other individual's personal information, including, but not

limited to, Social Security numbers and credit card numbers (or money) unless approved by a probation officer.

you shall not incur new credit charges or open additional lines of credit without the approval of a probation officer unless

you are in compliance with the financial obligations imposed by this judgment.

you shall provide a probation officer with access to any requested financial information necessary to monitor compliance

with conditions of supervised release.

you shall notify the court of any material change in your economic circumstances that might affect your ability to pay

restitution, fines, or special assessments.

you shall provide documentation to the IRS and pay taxes as required by law.

you shall participate in a sex offender treatment program. The specific program and provider will be determined by a

probation officer. You shall comply with all recommended treatment which may include psychological and physiological

testing. You shall maintain use of all prescribed medications.

D You shall comply with the requirements of the Computer and Internet Monitoring Program as administered by the

United States Probation Office. You shall consent to the installation of computer monitoring software on all

identified computers to which you have access. The software may restrict and/or record any and all activity on the

computer, including the capture of keystrokes, application infom1ation, Internet use history, email

correspondence, and chat conversations. A notice will be placed on the computer at the time of installation to

warn others of the existence of the monitoring software. You shall not remove, tamper with, reverse engineer. or

in any way circumvent the software.

D The cost of the monitoring shall be paid by you at the monthly contractual rate, if you are financially able. subject

to satisfaction of other financial obligations imposed by this judgment.

D You shall not possess or use any device with access to any on line computer service at any location (including

place of employment) without the prior approval of a probation officer. This includes any Internet service

provider, bulletin board system. or any other public or private network or email system.

You shall not possess any device that could be used for covert photography without the prior approval of a

probation officer.

D You shall not view or possess child pornography. If the treatment provider detennines that exposure to other

sexually stimulating material may be detrimental to the treatment process, or that additionai conditions are likely

to assist the treatment process, such proposed conditions shall be promptly presented to the court, for a

determination, pursuant to 18 U.S.C. § 3583(e)(2), regarding whether to enlarge or otherwise modify the

conditions of supervision to include conditions consistent with the recommendations of the treatment provider.

D You shall not, without the approval of a probation officer and treatment provider, engage in activities that will put

you in unsupervised private contact with any person under the age of 18, or visit locations where children

regularly congregate (e.g., locations specified in the Sex

Registration and Notification Act.)

D This condition does not apply to your family members:

[Names]

D Your employment shall be restricted to the district and division where you reside or are supervised, unless

approval is granted by a probation officer. Prior to accepting any form of employmentyou shall seek the approval

of a probation officer, in order to allow the probation officer the opportunity to assess the level of risk to the

community you will pose if employed in a particular capacity. You shall not participate in any volunteer activity

that may cause you to come into direct contact with children except under circumstances approved in advance by

a probation officer and treatment provider.

You shall provide the probation officer with copies of your telephone bills, all credit card statements/receipts, and

any other financial information requested.

D You shall comply with all state and local laws pertaining to convicted sex offenders, including such laws that

impose restrictions beyond those set forth in this order.

you shall pay any financial penalty that is imposed by this judgment that remains unpaid at the commencement of the

term of supervised release. Your monthly payment schedule shall be an amount that is at kast $ ·

or

% of

your net monthly income. defined as income net of reasonable expenses for basic necessities such as food. shelter,

utilities, insurance, and employment-related expenses.

you shall not enter into any agreement to act as an informer or special agent of a law enforcement agency without the

permission of the court.

you shall repay the United States "buy money" in the amount of S

which you received during the commission of

this offense.

if the probation officer determines that you pose a risk to another person (including an organization or members of the

community), the probation officer may require you to tell the person about the risk, and you must comply with that

instruction. Such notification could include advising the person about your record of arrests and convictions and

A-25

Case: 1:13-cr-00772 Document

I: \.l) 2~:m (Rev. 02i22/20l6) Judgment in a Criminal Case

1566 Filed: 06/24/16 Page 6 of 8 PagelD #:13763

Re leas~

6 of 8

CASE \UMBER: 13 CR 772 - 2

( !41

substance use. The probation officer may contact the person and confirm that you have told the person about the risk.

Other:

A-26

~a9pument #: 1566 Filed: 06/24/16 Page 7 of 8 PagelD #:13764

DEFENDANT: JOSEPH FAULKNER

C.•\SE '.'~UMBER: 13 CR 772 - 2

CRIMINAL MONETARY PENALTIES

The defendant must pay the total criminal monetary penalties under the schedule of payments on Sheet 6.

Assessment

$400.00

Totals

Restitution

s

D The determination of restitution is deferred until

cie,enn ination.

. An Amended Judgment in a Criminal Case rAO J./50 will be entered after such

D The defendant must make restitution (including community restitution) to the following payees in the amoum listed below.

[fthe defendant makes a partial payment, each payee shall receive an approximately proportioned payment, unless specified otherwise in

the priority order or percentage payment column below. However, pursuant to 18 U.S.C. § 3664(i). all nonfe<leral victims must be paid

befon! the United States is paid.

l

Name of Payee

Total Loss*

Restitution Ordered

Priority or

Percenta2e

i

:

i

!

:

l

I

i

I

I

I

·-

i

.

•

I

I

/

I

i

:

Totals:

r.J

D

D

Restitution amount ordered pursuant to plea agreement S

The defendant must pay interest on restitution and a tine of more than $2,500, unless the restitution or fine is paid in full before

the fifteenth day after the date of the judgment. pursuant to 18 U.S.C. § 36l2(f). All of the payment options on Sheet 6 may be

subject to penalties for delinquency and default, pursuant to 18 U.S.C. § 3612(g).

The court determined that the defendant does not have the ability co pay interest and it is ordered th:it:

D

D

the interest requirement is waived for the

the interest requirement for the

is modified as follows:

The defendant's non-exempt assets, if any, are subject to immediate execution to satisfy any outstanding restitution or fine

obligations.

'' Findings for the total amount of losses are required under Chapters 109A, 110, 110A, and 113A of Title 18 for offenses committed on or

aft;;;r September 13, 1994. but before April 23, 1996.

A-27

£~~Rilti}gt~;~~~28XJ.~1Ri?ccument #: 1566 Filed: 06/24/16 Page 8 of 8 Page ID #:13765

JL\D ::-1 513 <Rev

02

Shcc\ 6 Scheclulc of Payments

Ju mcnt- P

8 or8

DEFENDANT: JOSEPH FAULKNER

C.<\SE ;'\UMBER: 13 CR 772 - 2

SCHEDULE OF PAYMENTS

assessed the defendant's ability to pay, payment of the total criminal monetary penalties is due as follows:

Lump sum payment of $400.00 due immediately.

D

D

B

O

balance due not later than

. or

balance due in accordance with

C

D. D E, or D F below; or

Payment to begin immediately (may be combined with DC, DD, or D F below); or

Payment in equal

(e.g. weekly, monthly, quarrer(v) installments of$

commence

(e.g., 30 or 60 days) after the date of this judgment; or

C

E

O

f

O

over a period of

(e.g., months or years), to

Payment in equal

(e.g. weekly, monthly, quarterM installments of$

over a period of

commence

(e.g., 30 or 60 day.1) after release from imprisonment to a teim of supervision; or

/e.g. months or yearsi, to

Payment during the tenn of supervised release will commence within

(e.g .. 30 or 60 days) after release from imprisonment.

The court will set the payment plan based on an assessment of the defendant's ability to pay at that time; or

Special instructions regarding the payment of criminal monetary penalties:

L'nkss rhe court has expressly ordered otherwise, if this judgment imposes imprisonment, payment of criminal monetary penalties is due

imprisonment. All criminal monetary penalties, except those payments made through the Federal Bureau of Prisons· Inmate Financial

Responsibility Program, are made to the clerk of the court.

rhe cetendant shall receive credit for all payments previously made toward any criminal monetary penalties imposed.

Joint and Several

Case Number

Dcfondant and Co-Defendant Names

{including defendant number)

D

n

Total Amount

Joint and Several

Amount

Corresponding Payee, if

Appropriate

Tne defendant shall pay the cost of prosecution.

The defendant shall pay the following court cost(s):

The defendant shall forfeit the defendant's interest in the following property to the United States:

Payments shall be applied in the following order: ( l) assessment, (2) restitution principal, (3) restitution interest, (4) fine principal,

( .:5) fine interest, (6) community restitution, (7) penalties, and (8) costs, including cost of prosecution and coun costs.

A-28

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Everett McKinley Dirksen United States Courthouse

Office of the Oerk

Phone: (312) 435-5850

www.ca7.uscourts.gov

Room 2722 219 S. Dearborn Street

Oticago, Illinois 60604

FINAL JUDGMENT

CERTIFIED COPY

March 19, 2018

Before:

FRANK H. EASTERBROOK, Circuit Judge

AMY C. BARRETT, Circuit Judge

J. P. STADTMUELLER, District Court Judge*

Demit .. \ . .

of the:-pnited, , ~

v.

JOSEPH FAULKNER and OTIS SYKES,

Defendants - Appellants

Originating Case Information:

District Court Nos: 1:13-cr-00772-2 & 18

Northern District of Illinois, Eastern Division

District Judge Elaine E. Bucklo

The judgment of the District Court is AFFIRMED, in accordance with the

decision of this court entered on this date.

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

A-29

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Seventh Circult \,.

UNITED STATES OF AMERICA,

Plaintiff - Appellee

Nos. 16-2860 & 16-3525

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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

STAD1MUELLER, District Judge.*

STAD1MUELLER, 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.

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Nos. 16-2860 & 16-3525

2

market and Sykes was a low-level street dealer. In this consolidated 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 sentences. 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 Insane 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 extensively with federal agents, explaining his role in the Double 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 facilitate drug crimes. At his sentencing for the 2011 prosecution,

the government sought, and the court imposed, an aboveGuidelines 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 organization or within its territory. Count One charged Faulkner 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

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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)(l) 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 commit assault with a dangerous weapon, and Count Three was

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

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Nos. 16-2860 & 16-3525

4

Faulkner then proceeded to trial before the court sitting

without a jury. The government alleged that Faulkner conspired to sell drugs at the Keystone with gang members and

affiliated non-members. As to Count One, the evidence adduced 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 debrief was also introduced. Finally, the government offered a

series of recorded calls obtained pursuant to a wiretap of various Double I members. As to Counts Two and Three, testimony 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 relevance of Pitts' testimony, and the admissibility of the recorded 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 intimidate 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 responsible 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.

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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 presented 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-conspirators; 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 tum.

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 government." United States v. Webster, 775 F.3d 897, 904-05 (7th

Cir. 2015). We cannot re-weigh the evidence or reassess witness credibility. United States v. Wasson, 679 F.3d 938, 949 (7th

Cir. 2012). In other words, "we will 'overturn the jury's verdict 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 described as "nearly insurmountable." United States v. Taylor,

637 F.3d 812, 815 (7th Cir. 2011). None of Faulkner's arguments can carry it.

111

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Nos. 16-2860 & 16-3525

6

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 Requirement-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 violence 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 specific 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 distribution.

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 settled 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 accused."). The government counters that the debrief was supported 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.

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Nos. 16-2860 & 16-3525

7

As to Counts Two and Three, Faulkner makes two arguments. 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 inconsistencies that it was entirely beyond belief. Yet, if Ross' testimony 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 '1,ecause he knew it was expected of him by reason

of his membership in the [Double I's J 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. Collins, 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 principle of declaring testimony incredible as a matter of law has certainly existed 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).

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Nos. 16-2860 & 16-3525

8

contradiction with the standard of review, this Court has occasionally applied this concept in a sufficiency-of-the-evidence analysis. United States v. Farmer, 717 F.3d 559, 561-63

(7th Cir. 2013); United States v. Saunders, 973 F.2d 1354, 135960 (7th Cir. 1992). For instance, in Saunders, the jury heard

from a witness with poor and inconsistent recollection regarding a charged cocaine distribution conspiracy. We explained 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 factfinder, 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 demeanor, and the strength of any potential bias.

Faulkner also makes much of the alleged irrationality underpinning his involvement in and motivation for the Carr

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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 business, after the failed assassination. This assumes that individuals, including those like Faulkner or otherwise, only act towards 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-DS.

Though we may have assessed Ross' credibility differently

in the first instance, that is not our task today. With Ross' testimony 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-Conspirator Statements

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

The second bears upon Count One. He says that the government conceded the end of his involvement in the gang by limiting 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 witness, and only one call, from that post-arrest period allegedly

involved Faulkner himself. The call was not recorded, however, and there was nothing to corroborate its occurrence. All

of the other relevant calls were third parties talking about, rather than with, Faulkner. Faulkner contends that he necessarily withdrew from the conspiracy as of the date he debriefed with the government. See United States v. Nagelvoort,

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

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Nos. 16-2860 & 16-3525

Faulkner asserts that the recorded calls were inadmissible, either 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 conspiracy charge is relevant only when 'coupled with the defense 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 "absolve a defendant from his membership in the conspiracy" or

otherwise "negate that charge." Id.

111

Faulkner obfuscates the reasons why withdrawal matters.

In his opening brief, he states:

In the typical case, a withdrawal defense is important when coupled with the statute of limitations defense. Here, even if Faulkner withdrew, the Indictment was brought before the

statute of limitations expired. Still, the defense

informs other areas, including whether statements 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

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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. Faulkner concedes that he does not raise a statute of limitations defense, 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 jeopardy argument, and in his reply, he tries to stretch the withdrawal 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 herself indicated it would not have been. 2 As noted above, Faulkner's convictions were amply supported by conduct occurring 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 delivered her verdict:

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

a withdrawal defense. And you said intercepted calls aiter he was arrested, aiter 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 aifirrnative step to withdraw. And I think I can

consider the statements of other people who were involved in the conspiracy as to whether he withdrew. I know I must - must decide that somebody 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).

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Nos. 16-2860 & 16-3525

withdrawal of these two defendants from the conspiracy was

irrelevant in determining their guilt or innocence of the conspiracy charged in the indictment. Neither makes any claiJ;n

or showing that the denial of a withdrawal instruction prejudiced him, as might be the situation if actions by other conspirators 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 addressing withdrawal. This court is not in the business of offering 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 argument. Whether or not the co-conspirator statements were actually 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 admitted, "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 altered 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

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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 conduct. 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 offenses; if he does, the burden shifts to the government to show, by a preponderance of the evidence, 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 element not contained in the other.

11

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 11 clearly distinct from heroin distribution." 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-

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Nos. 16-2860 & 16-3525

tribution offense; on the other side, the substantive offense requires 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 obvious, even greater. Id.

The government asserts that these holdings are the binding 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) (quotation omitted). Faulkner appears to offer the same two species

of double jeopardy claims as he presented earlier. He maintains that his trial, and the evidence presented therein, confirms that the prosecutions were for the same conduct. In particular, Faulkner says that if the improperly admitted recorded 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 explain 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, controll~g authority, and he makes no argument that the evidence presented at trial was different than

that available to him during the interlocutory appeal. Notably, Faulkner's evidentiary comparisons are directed at the

similarity of the evidence between the two prosecutions, not

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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 appeal. 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] lesserincluded offense nests within the greater offense and therefore 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 argument for the first time in his reply, thus waiving it. Alhalabi,

443 F.3d at 611. Besides, were it not waived, Faulkner I provided a detailed rejection of the position. Faulkner I, 793 F.3d

at 758.

At oral argument, Faulkner all but conceded that his double 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,

11

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Nos. 16-2860 & 16-3525

however, he fails to provide good reasons to overturn Faulkner 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 Double 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 violation of 21 U.S.C. § 846, and seven counts of distributing heroin

and cocaine base, in violation of 21 U.S.C. § 841(a)(l). 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 report calculated a sentencing Guidelines range of 135 to 168

months' imprisonment. It further noted the government's intention 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

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Nos. 16-2860 & 16-3525

17

district court held that Sykes' participation in the Brown murder was established by a preponderance of the evidence.

Judge Bucklo nevertheless stated that she would accord it little weight in determining an appropriate sentence. The government 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 government 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 rule1 of Apprendi 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 shooting. Sykes further argued that he was a street-level dealer selling small quantities of drugs, and so the government's requested sentence would be disparate from those of his similarly situated co-defendants. Finally, Sykes explained that

while his criminal history was significant, it did not include

weapons-related or violent convictions.

11

Judge Bucklo sentenced Sykes to 195 months' imprisonment. 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, although Sykes himself was not convicted of violent crimes, he

participated in a drug conspiracy for years which he knew involved violence. Second, he had not learned any respect for

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

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Nos. 16-2860 & 16-3525

leased back to the community, Sykes returned to drug dealing. 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 aboveGuidelines 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 sufficient, 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)(l)-(7).

These include accounting for the circumstances of the offense

charged, the defendant's criminal history, the need for deterrence and public protection, the Guidelines range, and the desire to avoid unwarranted sentence disparities among similarly situated defendants. Id.

We use a two-step process to review Judge Bucklo's sentencing determination. First, "we determine whether the district 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 erroneous facts, or failing to adequately explain the chosen sentence-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

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Nos. 16-2860 & 16-3525

19

States v. Rivera, 847 F.3d 847, 849 (7th Cir. 2017). If no procedural error is found, then the sentence is reviewed for substantive 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 question. 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 sentence." 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 Buckle made three errors in arriving 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 subsumed 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 unreliable. Though Judge Bucklo said she gave the matter little

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

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Nos. 16-2860 & 16-3525

shown by her substantial upward variance from the Guidelines. Third, Sykes believes that Judge Bucklo failed to consider the disparity between his sentence and those of similar

co-defendants. He notes that the other street-level dealers received 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 discusses 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 history 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 marijuana 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 challenge 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 weighing the factors incorrectly. This is not the same as failing to consider them

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

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

there is generally no disparity problem so long as the remainder of the sentencing explanation makes it plain that the disparity 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 memorandum 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-defendants' cases, their Guidelines ranges, or any other sentencing

considerations. The only analogy Sykes offered was to Jasmine 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

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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 details 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 information 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 suggested that Judge Bucklo should have further addressed disparity simply because she was "the same judge who had sentenced 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' filings, before both this Court and the district court, do not adequately 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 considerations").

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23

It is worth noting that Judge Buck.lo exceeded the Guidelines range by just eighteen percent. This variance was wellfounded in her sentencing explanation. We find no error, procedural 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.

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llintter:r jtates <Unurt of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

CERTIFIED COPY

April 11, 2018

Before

FRANKH. EASTERBROOK, Circuit Judge

AMY C. BARRETT, Circuit Judge

J.P. STADTMUELLER, District Judge·

No. 16-2860

Appeal from the United

States District Court for

the Northern District of

Illinois, Eastern Division.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 13-CR-772-2

Elaine E. Bucklo, Judge.

JOSEPH FAULKNER,

Defendant-Appellant.

Order

Defendant-appellant filed a petition for rehearing on April 2, 2018. All of the

judges on the panel have voted to deny rehearing. The petition for rehearing is

therefore DENIED.

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

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