In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 14-3332

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

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 

SPRINGMANN, 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.
2 No. 14-3332

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)(1). 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)(1). 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 
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)(1) (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)(1)(A) (Count III); and conspir-
4 No. 14-3332

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).
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 
6 No. 14-3332

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 
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-
8 No. 14-3332

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-
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) (jeopardy 

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. 
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 explained 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.

III

Faulkner’s multiple punishment claim fails because it is 

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