In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 02-2016

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JOHN JOHNSON,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Central District of Illinois.

No. 01-CR-20004—Michael P. McCuskey, Judge.

____________

ARGUED DECEMBER 13, 2002—DECIDED APRIL 1, 2003

____________

Before RIPPLE, KANNE, and ROVNER, Circuit Judges.

KANNE, Circuit Judge. In this appeal, we review the

sentence imposed on John Johnson as the result of his

plea of guilty to distributing more than five grams of

crack cocaine. Johnson does not believe that half of

his federal sentence should have been imposed consecutively to his sentence on an earlier state-law drug charge.

He argues that the state-law drug offense should be

considered part and parcel with the federal drug offense,

and that, under the federal sentencing guidelines, the

sentences for the two offenses should therefore run concurrently. The district court did not agree and sentenced

Johnson to serve 35 months of his federal sentence consecutive to his state sentence. We conclude that the dis-
2 No. 02-2016

trict court did not err in holding that the state drug offense was not relevant to the federal offense, but rather

was properly considered as a wholly separate conviction.

We therefore affirm the sentence imposed by the district

court.

I. HISTORY

Johnson’s appeal ultimately involves a characterization of the relationship between two drug convictions.

The first arose out of a 1999 drug trafficking investigation by state law enforcement officials in Decatur, Illinois. When state agents learned that Jeff Bullock was

traveling from Decatur to Chicago to obtain marijuana

and cocaine to be sold in the Decatur area, they began

surveillance on Bullock. Sometime thereafter, the agents

observed Bullock meeting briefly with Johnson. On July

29, 1999, the agents stopped Bullock, Richard Wilson, and

another colleague (Johnson was not with them at the

time) on their way back to Decatur from Chicago and

found they were transporting two kilograms of powder cocaine and some 100 pounds of marijuana.

About a week later, pursuant to a state warrant, state

agents seized an automobile belonging to Wilson. At the

time the automobile was seized, Johnson was its sole occupant, sitting in the driver’s seat. A search of the car

yielded approximately 3.5 grams of crack cocaine and

over $2,500 in cash. Johnson admitted the crack cocaine

was for his personal use, and he was subsequently charged

by the authorities for possession of the drug and released

on bond. In October 1999, Johnson’s apartment in Mt.

Zion, Illinois, was searched pursuant to another state

warrant, where officers found, among other items, trace

amounts of crack cocaine in a microwave oven, a digital

scale, two empty plastic wrappers that appeared to be

kilogram-sized wrappers previously containing powder cocaine, and several thousand dollars in cash.
No. 02-2016 3

As a result of the state investigation, on October 5,

1999, Johnson, Bullock, and Wilson were arrested and

charged by state authorities with various state-law drug

offenses. The four counts with which Johnson was charged

were based on Johnson conspiring with Bullock and Wilson to possess and distribute powder cocaine from October 1, 1997, through August 26, 1999, as well as Johnson’s

possession of the crack cocaine found during the seizure

of Wilson’s vehicle. On June 7, 2001, Johnson pleaded

guilty to one count of conspiracy and, pursuant to his plea

agreement with state prosecutors, was sentenced to 20

years imprisonment in the Illinois Department of Corrections.

The second conviction, and the offense at issue in this

appeal, is a federal charge of distributing cocaine base, or

crack cocaine. In October 2000, over a year after Johnson

had been charged under state law with the drug conspiracy relating to powder cocaine, he sold approximately

one ounce of crack cocaine to a confidential source working with federal authorities. Johnson was indicted by a

federal grand jury on one count of distribution of over five

grams of cocaine base in violation of 21 U.S.C. § 841(a)(1).

Johnson pleaded guilty to this count without benefit of

a written plea agreement.

The dispute at issue in this appeal arose during the

subsequent sentencing of Johnson on this federal charge.

The presentence report (“PSR”) prepared for the case

determined, and the sentencing court agreed, that Johnson’s prior state conviction for drug conspiracy was not

relevant conduct with respect to the federal drug charge.

Instead, both the PSR and the court concluded that the

state conviction was to be treated as a separate, prior

sentence for purposes of his federal sentencing. This determination gave the court the discretion, as discussed

more fully below, to impose the federal sentence either

concurrently or consecutively to the state sentence. The
4 No. 02-2016

court imposed half of the sentence—35 months of the

total sentence of 70 months imprisonment—to run consecutively to the state sentence. It is this relevancy determination that Johnson now asks us to reconsider.

II. ANALYSIS

We review the sentencing court’s legal interpretation

of the federal sentencing guidelines de novo, while the

application of the guidelines to particular circumstances

is reviewed for clear error. United States v. Gibson, 155

F.3d 844, 846 (7th Cir. 1998). In addition, we review the

factual findings of the district court for clear error. United

States v. Williams, 272 F.3d 845, 852 (7th Cir. 2001). The

district court’s calculation of the quantity of drugs attributable to the defendant as relevant conduct, as a factual

determination, is reviewed under the clearly erroneous

standard. United States v. Partee, 301 F.3d 576, 578-79 (7th

Cir. 2002).

We begin with a brief review of how the district court

came to impose the sentence it did. The PSR prepared in

this case concluded that, under the federal sentencing

guidelines, Johnson should be sentenced according to a

base offense level of 25 and a criminal history category

of III, meaning a sentence range of 70 to 87 months imprisonment. The base offense level was calculated by

reference to guideline § 2D1.1, which pegs the offense

level to the amount of drugs involved in the offense; that

guideline provides for a level of 28 for offenses involving

between 20 and 35 grams of cocaine base. See U.S.S.G.

§ 2D1.1(6) (2002). Johnson was given a downward adjustment of three levels for demonstrating acceptance of

responsibility by timely pleading guilty, resulting in the

ultimate base offense level of 25. See U.S.S.G. § 3E1.1(a),

(b)(1), & (b)(2).
No. 02-2016 5

In calculating the criminal history category, the PSR

included as a “prior sentence” Johnson’s June 2001 conviction on the Illinois state-law drug-conspiracy charge;

this conviction added three points to his criminal-history

score, leading to a total score of five. See U.S.S.G.

§ 4A1.1(a). Had the PSR instead concluded that the state

drug conviction was conduct relevant to the federal charge,

that state conviction would not have been included in

the criminal-history calculation, resulting in a score of

two rather than five. See U.S.S.G. § 4A1.2(a)(1) (defining

“prior sentence” as “any sentence previously imposed . . . for

conduct not part of the instant offense” (emphasis added));

see also U.S.S.G. § 4A1.2 cmt. n.1 (noting that “[c]onduct

that is part of the instant offense means conduct that

is relevant conduct to the instant offense under the provisions of § 1B1.3 (Relevant Conduct)”). If, however, the

state drug offense had been found relevant to the federal

offense (i.e., as part of one overall scheme or plan), the

quantity of drugs involved in the state offense would

then be considered in setting the base offense level, leading

to a increased base offense level of 27 rather than 25

in Johnson’s case. See United States v. Zehm, 217 F.3d

506, 511 (7th Cir. 2000) (citing United States v. Griffin, 194

F.3d 808, 826 (7th Cir. 1999)) (“The Sentencing Guidelines

instruct that a defendant’s base offense level reflect the

quantity of drugs for which the defendant is accountable.”);

see also U.S.S.G. § 3D1.2(d); U.S.S.G. § 2D1.1(5). Had the

PSR characterized the state offense as relevant conduct

rather than as a prior sentence, the corresponding sentence range Johnson faced would have increased to 78 to

97 months imprisonment.

Johnson was willing to accept the increased sentence

range, however, because it would have meant that the

sentencing court was precluded from imposing his federal sentence to run consecutively to the state sentence,

resulting in an overall shorter term of imprisonment. See
6 No. 02-2016

1 Guideline § 5G1.3—by providing that an appropriate total

sentence is imposed for all relevant conduct, no matter how that

conduct is ultimately divided and charged—is meant to ensure

that a defendant is not punished excessively for one particular

episode of offense conduct. As we have noted, “[b]y counterfactually anchoring sentences around the punishment a defendant

would have received had the sentences been imposed simultaneously, this approach attempts to prevent the Government from

taking advantage of multiple prosecutions to get longer total

punishments.” United States v. Johnson, 117 F.3d 1010, 1013

(7th Cir. 1997) (citing Witte v. United States, 515 U.S. 389 (1995),

and United States v. Lechuga, 975 F.2d 397, 400 (7th Cir. 1992)).

U.S.S.G. § 5G1.3(b). Under § 5G1.3(b), if offense conduct

underlying an earlier, undischarged term of imprisonment is “fully taken into account” when fashioning the

subsequent sentence, the guidelines quite sensibly provide that the sentence for the instant offense should be

served at the same time as the sentence for the earlier

offense. Id. In that situation, the district court is required to impose the second sentence concurrently. See

id. (“[T]he sentence for the instant offense shall be imposed to run concurrently to the undischarged term of

imprisonment.” (emphasis added)). If, however, the uncharged offense conduct is not “fully taken into account”

when formulating the second sentence, the sentencing

court has the discretion to impose a sentence “to run

concurrently, partially concurrently, or consecutively to

the prior undischarged term of imprisonment to achieve

a reasonable punishment for the instant offense.” U.S.S.G.

§ 5G1.3(c).1

The sentencing court here found that Johnson’s earlier

state-law drug conviction had not been “fully taken into

account”—that it was not considered by the court to be

part of the same course of conduct or overall plan—when

Johnson was sentenced on the federal drug conviction. As
No. 02-2016 7

a result, the court exercised its discretion under § 5G1.3(c)

to impose half of Johnson’s federal sentence—35 months

of a total of 70 months imprisonment—to be served consecutively to the state sentence. The issue raised by Johnson on appeal is whether the sentencing court should

have concluded that Johnson’s prior state-law drug conviction was relevant conduct for purposes of sentencing

him on the federal charge, meaning that the state offense had been “fully taken into account” in formulating

the federal sentence and triggering § 5G1.3(b)’s concurrent

sentencing provision.

Section 1B1.3(a)(2) is the primary guideline provision

governing what a sentencing court may consider as relevant. It defines “relevant conduct” as those acts “that

were part of the same course of conduct or common

scheme or plan as the offense of conviction.” U.S.S.G.

§ 1B1.3(a)(2). The commentary to this guideline provision

explains that uncharged drug offenses are within “a

common scheme or plan” if they are “substantially connected to each other by at least one common factor, such

as common victims, common accomplices, common purpose, or similar modus operandi.” U.S.S.G. § 1B1.3 cmt. n.9.

Further, offenses may be within the “same course of conduct if they are sufficiently connected or related to each

other as to warrant the conclusion that they are part of

a single episode, spree, or ongoing series of offenses.” Id.

When determining whether uncharged conduct is part

of the same course of conduct, a court should assess

whether there is “a strong relationship” between the

uncharged conduct and the offense of conviction, looking

to whether there is “significant similarity, regularity, and

temporal proximity.” United States v. Bacallao, 149 F.3d

717, 719 (7th Cir. 1998) (quotations omitted). A court

must consider “the identity of the participants and their

roles in the events at issue, as well as the nature, structure

and location of the allegedly related transactions.” United
8 No. 02-2016

States v. Cedano-Rojas, 999 F.2d 1175, 1180 (7th Cir.

1993). But we also have warned that the relevant conduct

guideline “must not be read to encompass any offense

that is similar in kind to the offense of conviction, but

that does not bear the required relationship to that offense.” Bacallao, 149 F.3d at 719-20 (quotations omitted);

see also United States v. Crockett, 82 F.3d 722, 729 (7th

Cir. 1996) (noting that the relevant conduct guideline

“should not be applied to offenses that are of the same

kind, but not encompassed in the same course of conduct

or plan as the convicted offenses” (quotations omitted)).

We agree with the district court that there are sufficient differences between Johnson’s state-law drug conviction and the federal offense at issue here to preclude

the state offense conduct from being considered relevant

to the federal offense. The sentencing judge engaged in

a thorough review of the two offenses and, during the

sentencing hearing, outlined his reasons for reaching the

conclusion that the state-law conspiracy and the federal

charge were not related. (See Sent. Tr. at 128-32.) There

is no clear error in the conclusion that no “strong relationship” between the 1999 drug conspiracy and the 2000

drug sale existed, as the two events do not share “a significant similarity, regularity, and temporal proximity.”

Bacallao, 149 F.3d at 719.

First, the court found that the two criminal episodes

lacked temporal proximity. (Sent. Tr. at 131-32.) The statelaw drug-conspiracy activities took place in mid- to late1999, while Johnson’s sale of crack cocaine to a confidential source at issue in the federal offense occurred in

October 2000—a span of more than one year between the

offenses. While lapse of time between the two offenses is

not in itself dispositive of the question of relevance, see

Cedano-Rojas, 999 F.2d at 1180, it does suggest the separate character of the two episodes.
No. 02-2016 9

Second, the nature of the two offenses is different: the

sentencing judge observed that the state-law drug conspiracy involved powder cocaine, while the federal charge

involved an ounce of crack cocaine. (Sent. Tr. at 132.) As

we noted above, it is not enough that the two offenses

both involve drug transactions. See Crockett, 82 F.3d at

730. Rather, there must be more commonality to create a

substantial connection between the two offenses. In this

case, the fact that the two drug transactions involved

different types of drugs undercuts even this superficial

similarity.

Third, the sentencing court noted that the two offenses

were conducted through differing modus operandi. (Sent.

Tr. at 131-32.) The state-law drug conspiracy involved

Johnson’s participation, in cooperation with his coconspirators, in a scheme to distribute large amounts of the

drug to numerous individuals, while the federal offense

involved Johnson apparently acting alone to make an

individual drug sale. This consideration raises additional

differences: the court below noted that the two offenses

involved different victims (Sent. Tr. at 131), different

participants (Sent. Tr. at 131-32), and different roles for

those participants (Sent Tr. at 131-32). The state conspiracy involved cocaine distributed in cooperation with coconspirators Bullock and Wilson to various unnamed customers, while the federal offense apparently involved Johnson

acting individually (Bullock was incarcerated at the time

of the sale) to distribute crack cocaine to a confidential

source. The conduct underlying the state conviction involved Johnson acting under Bullock’s direction, while the

federal offense involved Johnson’s direct contact with a

source of drugs in Chicago (after Bullock was incarcerated,

he did put Johnson in contact with “Tony,” Bullock’s cocaine

source in Chicago, but Johnson apparently used “Tony” as

just one of many sources). Thus, Johnson’s role after the

incarceration of Bullock changed from one of many coconspirators to lone dealer.
10 No. 02-2016

As we have noted, “[t]he mere fact that the defendant

has engaged in other drug transactions is not sufficient

to justify treating those transactions as ‘relevant conduct’

for sentencing purposes.” Crockett, 82 F.3d at 730. Based

on its reasoned analysis of the two incidents, the sentencing court determined that Johnson’s state drug conviction was not part of the same course of conduct or common scheme or plan as the federal offense, and thus was

not “fully taken into account in the determination of the

offense level for the instant [federal] offense.” U.S.S.G.

§ 5G1.3(b). There is nothing to suggest this determination was erroneous. Thus, the district court did not clearly err in ordering half of Johnson’s term of imprisonment

to run consecutively to his state sentence.

III. CONCLUSION

The district court’s application of the sentencing guidelines to the particular circumstances of Johnson’s case

was not clearly erroneous. The sentence imposed below

is AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—4-1-03