dissenting.
I agree that Falcon’s drug sentence was properly enhanced for his leadership role in the enterprise. I respectfully disagree, however, with my colleagues’ conclusion that Falcon was not entitled to a vindictive prosecution hearing regarding the illegal reentry indictment.
Falcon has raised a “reasonable doubt that the government acted properly” in seeking the illegal reentry indictment sufficient to merit a hearing on his charge of vindictive prosecution. See United States v. Monsoor, 77 F.3d 1031, 1034 (7th Cir.1996) (citations omitted); United States v. Heidecke, 900 F.2d 1155, 1158 (7th Cir.1990).1 The illegal reentry complaint was sworn to on May 9, only three days after Falcon filed a non-frivolous sanctions motion in his drug case against the same prosecuting attorney who then pursued the illegal reentry charge. I disagree with the majority’s assertion that a sanctions motion is merely “procedural in nature.” In this case, the motion personally accused the prosecuting attorney of failing to comply with a court order to provide Falcon with a bill of particulars on the obstruction charge, conduct for which the district court verbally reprimanded the prosecutor in the sanctions hearing. See majority opinion at note 2. The timing of the complaint seems even more suspicious given that it was filed on May 10, the day of the sanctions hearing, but not until five hours after the district court verbally reprimanded the prosecutor.
The government argues, as it did before the district court, that it filed the illegal reentry complaint because it had a factual basis for the indictment and because, having discovered that Falcon may have attempted to bribe a co-defendant in his drug case, it “determined Falcon was a serious criminal offender that should be held responsible for his past immigration violations as well.” Not only does this argument fail to reconcile the suspicious timing that we outlined above, but on this record it also strains credibility. First, the government did not discover Falcon’s prior illegally reentry and deportation history just before it filed the illegal reentry charge or just after Falcon filed his motion for sanctions. See United States v. Napue, 834 F.2d 1811, 1330 (1987) (“[T]he extent to which the government had obtained its evidence prior to the defendant’s assertion of some right ‘is one of the key indicia scrutinized by courts when confronted with a claim of vindictive prosecution.’”) (citations omitted); United States v. Dickerson, 975 F.2d 1245, 1251 (7th Cir.1992). Indeed, even if the government did not know about the factual basis for bringing the illegal reentry charge at the time it originally charged Falcon with his drug crimes, it knew about his deportation history at the time it filed the superseding indictment charging him with obstruction of justice.2 Moreover, the government ac*1007tually brought the obstruction of justice charge, and surely it could have at that time also added the illegal reentry charge to the superseding indictment,3 especially when the facts underlying the obstruction charge were the government’s sole basis for “later” concluding that Falcon was “a serious criminal offender that should be held responsible for his past immigration violations as well.”
In finding this to be one of those rare occasions when this court should conclude that an evidentiary hearing into vindictive prosecution should have been provided, I do not conclude that prosecutorial animus or vindictiveness actually existed in this case, nor do I explicitly find any wrongdoing on the part of the prosecutor. I merely believe that the timing of the illegal reentry complaint, immediately following Falcon’s sanctions motion that personally attacked the prosecutor, gives rise to reasonable doubt of prosecutorial vindictiveness sufficient to trigger a hearing into the indictment’s propriety. Monsoor, 77 F.3d at 1034; Heidecke, 900 F.2d at 1158 (“For a presumption of vindictiveness to arise, the facts of a case must implicate ... a personal stake of the prosecutor; in other words, there must be a realistic likelihood of vindictiveness.”) (citing United States v. Goodwin, 457 U.S. 368, 376, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982)). I recognize the potential for abuse of prosecutorial vindictiveness allegations, and “we must guard against allowing claims of vindictive prosecution to mask abusive discovery tactics by defendants.” Heidecke, 900 F.2d at 1159. Yet, when considering that “the defense[ ] of ... vindictive prosecution required the defendant to probe the mental state of the prosecutors,” I feel such a risk is justified in this situation. Id.; cf. Dickerson, 975 F.2d at 1251. The district court might reasonably conclude there was a “realistic likelihood of vindictiveness” in this case, Goodwin, 457 U.S. at 376, 102 S.Ct. 2485, and under such circumstances an evidentiary hearing should have occurred to avoid “prematurely stif[ling] a legitimate defense of vindictive prosecution for lack of evidence.” Heidecke, 900 F.2d at 1159.
For the foregoing reasons, I respectfully dissent from the majority’s conclusion that Falcon was not entitled to a vindictive prosecution hearing.
. To obtain discovery into a vindictive prosecution allegation a defendant need only present a "colorable basis” for the claim. Heidecke, 900 F.2d at 1159.
. The illegal reentry indictment was filed separate from, and ten months after, Falcon was initially charged in the drag case, and it was filed almost three months after the same prosecuting attorney obtained a superseding indictment in Falcon's drug case, charging him with obstruction of justice for alleged bribery of a co-defendant.
. We have rejected claims of prosecutorial vindictiveness when a superseding indictment included a more severe charge, or resulted in a more severe sentence, following a change in circumstances, the exercise of a statutory right, or the discovery of new evidence. See, e.g., United States v. O’Hara, 301 F.3d 563, 571 (7th Cir.2002); Bullis, 77 F.3d at 1559; United States v. Yarbough, 55 F.3d 280, 282-83 (7th Cir.1995); Schiselman v. United States Parole Comm'n, 858 F.2d 1232, 1240 (7th Cir.1988).