                                 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 Jeop-
ardy 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, sit-
ting by designation.
2                                                  No. 14-3332

communication facility in facilitation of a drug-related felo-
ny; 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 be-
cause, 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 indict-
ment (which were dropped pursuant to a plea agreement)
are the same as those in the current indictment. He thus ar-
gues 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 commu-
nication facility in facilitation of a drug-related felony, in
violation of 21 U.S.C. § 843(b). Each count carried a maxi-
mum 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 sen-
tencing and upon the government’s motion, the court grant-
ed that motion and dismissed the original heroin distribu-
tion 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 none-
theless 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) (iden-
tifying “the history and characteristics of the defendant” as a
sentencing factor). In support of that position, the govern-
ment 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 above-
guidelines 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 de-
fendant.” She highlighted Faulkner’s use of firearms, ex-
plaining that “handguns were used regularly in the course
of this distribution.”
   In 2013, Faulkner and other members of the Imperial In-
sane Vice Lords were before the court on new charges. This
time the indictment accused Faulkner of engaging in a rack-
eteering 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 discharg-
ing 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 al-
ready 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 communi-
cation 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 collat-
eral order doctrine, which allows a criminal defendant im-
mediately to appeal a denial of a motion to dismiss an in-
dictment 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 ad-
dress both claims.
                                A
    We begin with Faulkner’s multiple punishment argu-
ment: that the indictment at issue in this case is an attempt to
punish him for conduct for which he has already been pun-
ished. Faulkner argues that comments made by the judge at
his 2011 sentencing, including references to drugs, gang ac-
tivity, 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 epi-
sode 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 author-
ized 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 evi-
dence 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 con-
duct 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 sen-
tencing 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 considera-
tion 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 manda-
tory 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 ar-
gument, 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 prosecu-
tion. See Witte, 515 U.S. at 404 (explaining that Witte’s argu-
ment 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 de-
fendant is still being punished only for the offense of convic-
tion,” 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 post-
Booker 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 giv-
en no indication that it has retreated from Witte, and our sis-
ter 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 deci-
sions requiring juries to find the factual predicates for sen-
tencing 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 statu-
tory sentencing range. Faulkner’s sentence, though above-
guidelines, 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 not-
ed that its holding regarding the consideration of uncharged
conduct applied only where the original sentence was “with-
in the authorized statutory limits.” Witte, 515 U.S. at 399.
    Witte has not been implicitly overruled by any of the cas-
es 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 pun-
ishment 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 original-
ly 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, Faulk-
ner must establish a prima facie showing that both prosecu-
tions were for identical offenses; if he does, the burden shifts
to the government to show, by a preponderance of the evi-
dence, that the indictments (or informations) charged differ-
ent crimes. See Doyle, 121 F.3d at 1089. To determine wheth-
er the indictments charged the same offense, the court gen-
erally looks to the test set forth in Blockburger v. United States,
284 U.S. 299 (1932): “whether each offense contains an ele-
ment not contained in the other.” 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 convic-
tion”), with United States v. Mintz, 16 F.3d 1101, 1106 (10th
Cir. 1994) (affirming dismissal based on double jeopardy be-
cause defendants had been previously indicted for the same
conspiracy in a charge that had been dismissed with preju-
dice 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 (racket-
eering conspiracy and conspiracy to distribute controlled
substances), survive the Blockburger test. Conspiracy in-
volves 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 consist-
ently recognized by the Court that the commission of the
substantive offense and a conspiracy to commit it are sepa-
rate and distinct offenses.”); CHARLES DOYLE, CONG.
RESEARCH SERV., R41222, FEDERAL CONSPIRACY LAW: A
SKETCH 7 (2010) (concluding that there are no double jeop-
ardy concerns with the successive prosecution of a “conspir-
acy and its attendant substantive offense”).
     The same analysis applies to the offense to which Faulk-
ner 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 ex-
plained above. Thus, we reject Faulkner’s multiple prosecu-
tion claim because none of his previously charged offenses
are identical to the offenses charged in the current indict-
ment.
                              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 mo-
tion to dismiss based on the Double Jeopardy Clause.
