In the 

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 15-2753 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v.

DANIEL O. LOCKETT, 

Defendant-Appellant. 

____________________ 

Appeal from the United States District Court for the 

Southern District of Illinois. 

No. 3:14-CR-30075-DRH-1 — David R. Herndon, Judge. 

____________________ 

ARGUED JANUARY 10, 2017 — DECIDED JUNE 9, 2017 

____________________ 

Before WOOD, Chief Judge, and ROVNER and HAMILTON,

Circuit Judges. 

HAMILTON, Circuit Judge. Appellant Daniel Lockett asks us 

to decide whether simultaneous possession of two illegal 

drugs is one crime or two for Double Jeopardy Clause purposes. Lockett was caught in simultaneous possession of cocaine and heroin. He pled guilty to two counts of possession 

with intent to distribute a controlled substance, and was sen-
2 No. 15-2753 

tenced on those counts before anyone noticed a potential double jeopardy issue. On appeal he argues that as a result, his 

plea was unknowing and his sentence violated the Double 

Jeopardy Clause. Neither point was raised in the district 

court. Lockett’s failure to raise the double jeopardy objection 

before pleading guilty waived that challenge, and we review 

the closely related challenge to the plea itself only for plain 

error. We find no plain error on that issue and thus affirm 

Lockett’s convictions and sentence. 

Factual and Procedural Background 

Daniel Lockett was arrested while carrying a bag containing individually wrapped bags of heroin and cocaine. He was 

indicted for and pled guilty to two counts of possession with 

intent to distribute a controlled substance in violation of 21 

U.S.C. § 841(a)(1)—one count for the heroin and one for the 

cocaine. Because of prior felony drug offenses, the advisory 

Sentencing Guidelines classified Lockett as a career offender. 

The district court accepted that advice and sentenced Lockett 

to 151 months in prison. 

Analysis 

Lockett’s central argument is that his simultaneous possession of two controlled substances was only one crime, not 

two. He seeks to apply that point in two ways. First, he argues 

that he was punished twice for the same crime in violation of 

the Fifth Amendment’s Double Jeopardy Clause and that the 

appropriate remedy is a full resentencing. Second, he argues 

that because he did not know about the multiplicity issue 

when he pled guilty, his plea was not knowing and his convictions should be vacated. 
No. 15-2753 3

Lockett’s Sentencing 

The government contends that Lockett waived his multiplicity challenge by (1) pleading guilty and (2) failing to file a 

pretrial motion. Lockett’s guilty plea did not waive this challenge, but the lack of a pretrial motion did. We therefore do 

not reach the merits of Lockett’s first argument. 

1. No Waiver by Guilty Plea 

In general, “an unconditional plea of guilty operates as a 

waiver of all formal defects in the proceedings.” Gomez v. 

Berge, 434 F.3d 940, 942 (7th Cir. 2006). But double jeopardy 

violations are exceptions to that general rule if the “record 

alone” can establish them. Robinson v. United States, 196 F.3d 

748, 751 (7th Cir. 1999), readopted in relevant part on remand, 6 F. 

App’x 359 (7th Cir. 2001), citing United States v. Broce, 488 U.S. 

563, 576 (1989).1 Lockett argues from “the record alone,” specifically, the indictment and the stipulation of facts. Cf. United 

States v. Makres, 937 F.2d 1282, 1286 (7th Cir. 1991) (no facial 

double jeopardy violation where defendant requested evidentiary hearing to develop argument). That argument might 

be wrong—the government’s waiver argument collapses 

quickly into arguing that it is—but his guilty plea did not 

waive it. 

 1 The government asserts that the defect must be present on the face 

of the indictment, citing United States v. Baugh, 787 F.2d 1131, 1132 (7th Cir. 

1986). Although the Baugh court had no need to consider materials other 

than the indictment, we are not required to limit our review so narrowly. 

See Robinson, 196 F.3d at 752 (relying on both indictment and stipulated 

statement of facts). 
4 No. 15-2753 

2. Waiver by Lack of Pretrial Motion 

Federal Rule of Criminal Procedure 12(b)(3)(B)(ii) requires 

a defendant to raise a multiplicity objection to an indictment 

“by pretrial motion if the basis for the motion is then reasonably available.” Lockett did not raise his multiplicity concern 

by pretrial motion. In fact, he never raised it in the district 

court. 

Lockett addresses the waiver problem by distinguishing 

between objecting to the form of the indictment and objecting 

to his sentence. He says he is making the latter objection, 

which is not governed by Rule 12(b). That distinction has been 

recognized by the Fifth, Sixth, and Eleventh Circuits, which 

hold that defendants need not raise multiplicity challenges 

before trial. See United States v. Abboud, 438 F.3d 554, 566–67 

(6th Cir. 2006), citing United States v. Rosenbarger, 536 F.2d 715, 

721–22 (6th Cir. 1976); United States v. Mastrangelo, 733 F.2d 

793, 800 (11th Cir. 1984), citing United States v. Bradsby, 628 

F.2d 901, 906 (5th Cir. Unit A 1980); United States v. Cauble, 706 

F.2d 1322, 1334–35 (5th Cir. 1983), citing Bradsby, 628 F.2d at 

905–06. But in United States v. Griffin, 765 F.2d 677, 680–81 (7th 

Cir. 1985), we joined with the First, Second, and Eighth Circuits and held otherwise. Lockett’s multiplicity objection was 

therefore untimely. Fed. R. Crim. P. 12(c)(3) (“If a party does 

not meet the deadline for making a Rule 12(b)(3) motion, the 

motion is untimely.”). 

If Lockett had made an untimely objection in the district 

court, he might still have shown good cause and asked the 

district court to consider the argument anyway. “[A] court 

may consider the ... [untimely] objection ... if the party shows 

good cause.” Id. He did not do so. He might also have asked 

us to consider whether, “if a motion for relief had been made 
No. 15-2753 5

and denied, the district court would have abused its discretion in concluding that the defense lacked good cause.” United 

States v. Acox, 595 F.3d 729, 732 (7th Cir. 2010) (“[T]hat the 

good-cause decision is committed to the district court ... need 

not preclude all possibility of relief when trial counsel never 

tries to show good cause.”). Again he did not. We therefore 

do not conduct even plain error review of Lockett’s sentence. 

Id. at 731 (“Before a court of appeals can reach the plain-error 

question, a defendant must first establish good cause for the 

absence of a pretrial motion.”). But these procedural problems 

would not matter in the long run. Even if plain error review 

were available, Lockett’s double jeopardy challenge to his sentence would not succeed. It rests on the same argument as his 

challenge to his guilty plea. As we explain next, permitting 

conviction on the two counts was not a plain error. 

Lockett’s Guilty Plea 

Lockett contends that his guilty plea was not knowing and 

voluntary because he was led to believe he had committed 

two crimes when he had committed only one.2 Because he did 

not challenge the validity of his plea in the district court, he 

agrees, our review is for plain error. United States v. PinedaBuenaventura, 622 F.3d 761, 770 (7th Cir. 2010). An error can be 

 2 Lockett’s briefing occasionally implies that his plea was unknowing 

because he thought he was pleading to possession with intent to distribute 

the cocaine but only possession of the heroin. The heroin, he says, was for 

personal use. If this is his argument, the record does not support it. He 

showed no confusion at his plea hearing, where the judge’s questions 

were quite clear. In a letter Lockett wrote to the district judge after sentencing, he did not say that he did not mean to plead guilty to the heroin 

distribution charge, only that he did not understand how the difference 

between possession and distribution would matter at sentencing. 
6 No. 15-2753 

plain only if it is “clear or obvious, rather than subject to reasonable dispute.” Puckett v. United States, 556 U.S. 129, 135 

(2009). 

It is not “clear or obvious” that Lockett committed only 

one crime. At least seven circuits have held in precedential 

opinions that simultaneous possession of two drugs is two 

crimes; no circuits have held otherwise. United States v. VargasCastillo, 329 F.3d 715, 717, 722 (9th Cir. 2003) (separate charges 

for different drugs found at the same time inside the same tire 

not multiplicitous); United States v. Richardson, 86 F.3d 1537, 

1552–53 (10th Cir. 1996) (separate charges for cocaine and 

methamphetamine found in same bag not multiplicitous), abrogated on other grounds as recognized in United States v. Pearce, 

146 F.3d 771, 774 (10th Cir. 1998); United States v. Bonilla 

Romero, 836 F.2d 39, 46–47 (1st Cir. 1987) (rejecting argument 

that “heroin and cocaine ... found in one bag at the same time 

and place” constitutes a single violation of 21 U.S.C. 

§ 841(a)(1)); United States v. DeJesus, 806 F.2d 31, 35–37 (2d Cir. 

1986) (rejecting argument that “Congress did not intend to authorize cumulative penalties ... for the simultaneous possession of different drugs”); United States v. Grandison, 783 F.2d 

1152, 1156 (4th Cir. 1986) (“Congress intended the possession 

of each scheduled substance to be a separate offense ... .”); 

United States v. Davis, 656 F.2d 153, 159 (5th Cir. Unit B Sept. 

1981) (“When Congress set penalties for possession of ‘a controlled substance,’ it intended to permit trial courts to penalize 

possession of ‘each’ controlled substance.”); United States v. 
No. 15-2753 7

Pope, 561 F.2d 663, 669 (6th Cir. 1977) (“[T]he possession of 

heroin and methadone represent separate offenses ... .”).3 

We reached nearly the same conclusion in Griffin, 765 F.2d 

at 682–83. In that case, the defendant was arrested with a bag 

of cocaine on his person and a package of cocaine in his car 

some distance away. Id. at 682. We rejected a multiplicity challenge to separate counts for each container, noting that the 

differences in purity, quantity, and location made possession 

of the two containers separate crimes. Id. at 683. Griffin is not 

precisely on point—there was no difference in location between the two drugs here—but the opinion’s language indicated that purity differences alone would have been sufficient. Id. at 681. 

Lockett also cites our decision in United States v. Powell, 894 

F.2d 895, 898–99 (7th Cir. 1990), in which we held that separate 

charges for conspiracies to distribute cocaine and methamphetamine were multiplicitous, at least where the evidence 

showed the same people were involved with both drugs at the 

same time and even in the same transactions. The issue in 

Powell was the scope of the alleged conspiracies, though, not 

the possession of separate drugs, and its analysis does not 

carry over to possession charges, and certainly not so clearly 

as to support a finding of plain error. 

Lockett argues that we should break from existing case 

law. Many of the decisions authorizing separate charges reasoned from the need to permit judges to sentence in a more 

flexible and individualized way, a need since addressed by 

 3 The Eleventh Circuit followed Davis in a non-precedential decision. 

United States v. Thompson, 171 F. App’x 823, 829 n.2 (11th Cir. 2006) (per 

curiam). 
8 No. 15-2753 

adoption of the first mandatory and later advisory Sentencing 

Guidelines, which account for crimes involving multiple 

drugs through the use of “marihuana equivalents.” See 

U.S.S.G. § 2D1.1, App. Note 8; cf. Davis, 656 F.2d at 159 (arguing that punishing simultaneous possessions as one crime 

would limit judges to “the punishment set by statute for possession of only one drug”); United States v. Johnson, 25 F.3d 

1335, 1336–37 (6th Cir. 1994) (noting that most multiplicity 

challenges in simultaneous possession cases predate Guidelines, and leaving “to another occasion the question of 

whether Pope should be overruled”). Lockett also points to the 

text of § 841(a), which prohibits possessing “a controlled substance” without separately specifying each drug type. 

Lockett makes a reasonable argument. To show a plain error, though, he must show not only that his argument is reasonable but that it is clearly (“plainly”) correct. An argument 

that conflicts with seven circuits’ case law and is in tension 

with our own does not meet that standard. 

The judgment of the district court is AFFIRMED.