In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 04-2447

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

KEEFER JONES,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Central District of Illinois.

No. 02 CR 20029—Michael P. McCuskey, Chief Judge.

____________

ARGUED DECEMBER 1, 2005—DECIDED AUGUST 1, 2006

____________

Before EASTERBROOK, RIPPLE and KANNE, Circuit Judges.

RIPPLE, Circuit Judge. After a jury trial, Keefer Jones

was found guilty of possession with intent to distribute

five or more grams of cocaine base (“crack”). See 21 U.S.C.

§ 841(a)(1) & (b)(1)(B). The district court sentenced Mr. Jones

to 262 months’ imprisonment and eight years’ supervised

release and ordered him to pay a $100 special assessment.

Mr. Jones now appeals his conviction and sentence. For the

reasons set forth in the following opinion, we affirm the

judgment of the district court.
2 No. 04-2447

I

BACKGROUND

A. Facts

On the evening of July 28, 2000, in preparation for executing a search warrant of a residence, several Decatur Police

officers were performing surveillance of that residence at

940 North Main Street in Decatur, Illinois. During that time,

Detective Jason Boesdorfer observed three black males,

including Mr. Jones, coming and going from the residence.

At approximately 8:30 p.m., Mr. Jones and his nephew

Montae Jones left the home, got into a car and drove away.

Detective Lorne Sturdivant followed and observed the car,

driven by Mr. Jones, make a left turn without signaling.

Detective Sturdivant then ordered Mr. Jones to pull the car

to the curb. Mr. Jones was arrested for driving with a

suspended license and taken to the Decatur police station.

Meanwhile, other police officers, including Detectives

David Dailey and Chad Ramey, began the search of 940

North Main Street. The officers first searched a dresser in

the living room where they found a plastic bag containing seventeen rocks of crack. Underneath the bag of

crack, they found Mr. Jones’ State of Illinois identification

card and pages from his address book. Next to the dresser

was a duffel bag containing men’s clothing, men’s shaving items and a letter addressed to Mr. Jones at 423 West

Olive, Decatur, Illinois, which was postmarked July 19,

2000. Underneath the dresser was a cell phone box and a

receipt, dated June 27, 2000, for the cell phone made out to

Mr. Jones at 423 West Olive, Decatur, Illinois.

The police also searched the northeast bedroom, which

contained no furniture, only debris. In this bedroom, they

found a Hardee’s bag hidden in a radiator. Inside that bag
No. 04-2447 3

were four plastic bags; two contained cash totaling approximately $1,700; the other two contained approximately

175 rocks of crack cocaine. The crack in each bag weighed

over five grams.

After the search was completed, Detective Ramey left

the house and returned to the Decatur police station,

where he advised Mr. Jones of his Miranda rights. According

to Detective Ramey, Mr. Jones signed a Miranda form

indicating that he understood his rights. Detective Ramey

testified at trial that, after signing this form, Mr. Jones told

him that he had moved to 940 North Main Street about a

month earlier and that the duffel bag belonged to him. Mr.

Jones also admitted to the Detective that he had been selling

crack from the house during the previous two or three

weeks and that the crack in the dresser and Hardee’s bag

belonged to him. He further stated that the $1,700 in the

Hardee’s bag was money that he had made selling crack

during the previous two days.

Detective Ramey then asked Mr. Jones to draft a written confession. Mr. Jones complied and wrote:

I’ve been staying at 940 Main Street for about three to

four weeks and have been dealing drugs. About a

couple thousand worth of the drugs were mine that

were seized at that apartment in a raid (crack cocaine).

Appellee’s Br. at 14-15. Mr. Jones signed the statement

and wrote the date and his address as 940 North Main

Street. Detective Ramey also signed the form.

According to the Government, Mr. Jones indicated to

Decatur Police that he wanted to cooperate with the investigation. On August 1, 2000, he met with Decatur Police

Detective Stalets and FBI Agent Warren and signed a

“confidential source” form. In the following interview,
4 No. 04-2447

he told Detective Stalets and Agent Warren that he had

received on consignment the crack that had been seized

from 940 North Main Street. He further admitted that he

had intended to sell it.

On March 13, 2002, a criminal complaint was issued that

charged Mr. Jones with possessing crack with intent to

distribute. A warrant was issued for his arrest. The criminal

complaint was supported by an affidavit written by

FBI Agent Warren who summarized the search of 940 North

Main Street and noted that Mr. Jones had made a “written

statement” confessing to dealing drugs. The text of this

statement was included in the affidavit. On April 5, 2002,

Mr. Jones was indicted by a grand jury and charged with

knowingly and intentionally possessing with intent

to distribute five or more grams of crack cocaine. See 21

U.S.C. § 841(a)(1) & (b)(1)(B).

B. District Court Proceedings

Mr. Jones’ trial originally was scheduled for June 10, 2002.

On May 30, 2002, the district court granted his motion for a

continuance; the trial date was reset for July 15, 2002. On

July 3, 2002, Mr. Jones filed a second motion

for a continuance, requesting additional time to obtain a

handwriting analysis of the statement allegedly penned

by Mr. Jones. At a hearing on this motion, Mr. Jones’

counsel admitted that he had been provided the written

confession by the prosecution, and had been under the

mistaken impression that a police officer had written the

statement and that Mr. Jones had only signed it. According

to counsel, he did not realize his mistake until the final

pretrial conference on June 28, 2002, when the Government

had told him that Mr. Jones had written and signed, not just
No. 04-2447 5

1 Mr. Jones’ counsel indicated that he had identified the expert

he wished to hire and that, once he obtained approval from the

public defender’s office, he would need about two weeks to

obtain the expert analysis.

signed, the statement. Given this new information, counsel

contended that he needed additional time to obtain a

handwriting expert to determine whether or not

the document had been written by Mr. Jones.1

The district court denied the motion to continue, stating that a handwriting expert’s testimony would not be

an absolute or affirmative defense and instead would be

“evidence that would be presented to the jury that they

could accept or reject.” R.26 at 20. The court noted that the

statement allegedly written by Mr. Jones was merely

corroborative of his oral statement, the testimony of the

officers and the items that were seized from the home. The

district court also reasoned that Mr. Jones’ counsel had been

made aware that his client had penned the statement on

March 13, 2002, when FBI Agent Warren filed an affidavit

in support of the criminal complaint stating that, on the day

of the search, “Jones . . . provided a written statement to

officers.” Id. at 25, 27-28. Therefore, the district court

concluded that the interests of justice did not require a

continuance.

At trial, Detectives Boesdorfer, Ramey, Sturdivant and

Dailey all testified about the search of 940 North Main

Street. Detective Ramey further testified that Mr. Jones

freely cooperated with police and that it was Mr. Jones

who wrote and signed the statement given to police on

July 28, 2000. Additionally, Decatur Police Detective Stalets,

who was assigned to the Illinois State Police Drug Task

Force, gave expert witness testimony that it was “not
6 No. 04-2447

2 The court gave the following limiting instruction to the jury at

the time the prior conviction was admitted:

Ladies and gentlemen of the jury, the [certified copy of Mr.

Jones’ prior conviction] provides evidence of other crimes,

wrongs, or acts. It is not admissible to prove the character of

a person in order to show action in conformity therewith. It

may, however, be admissible for other purposes such as

proof of intent.

With the admission of [the conviction], you have heard

evidence of acts of the defendant other than those charged in

the indictment. You may consider this evidence only on the

question of intent. You should consider this evidence only

for this limited purpose and for no other purpose.

Trial Tr.II at 412-13.

uncommon” for dealers to store the larger portion of cocaine

in a safe location away from the smaller supply. Trial Tr.II

at 404.

At the close of the prosecution’s case, the Government

asked the court to take judicial notice of Mr. Jones’ prior

conviction on February 15, 1994, for the unlawful delivery

of a controlled substance in Macon County, Illinois. The

district court also gave the jury a limiting instruction, based

on Pattern Criminal Federal Jury Instructions for the

Seventh Circuit 3.04, which instructed the jury to consider the prior conviction only for the purpose of establishing intent.2

Mr. Jones testified on his own behalf. He denied living

at 940 North Main Street, denied making either an oral or a

written statement to Detective Ramey and denied that any

of the crack cocaine found in the apartment had belonged to

him. He admitted that he had a 1994 conviction for selling
No. 04-2447 7

cocaine, but testified that he had “pretty much” forgotten

how to sell drugs since that conviction. Trial Tr.II at 428.

The Government then recalled Detective Stalets, who

testified that Mr. Jones had indicated to him that he

wanted to cooperate and had told him that he had gotten

the crack seized from 940 North Main Street on consignment

and intended to sell it. After closing arguments, the jury

returned a verdict of guilty.

At the sentencing hearing, the district court noted that

a draft of the presentence report had calculated the base

offense level as 32. After an objection by Mr. Jones’ counsel,

the district court removed some of the relevant conduct and

recalculated the offense level, lowering the base offense

level to 30. Next, the district court applied, over Mr. Jones’

objection, a two-level enhancement for obstruction of justice,

based on the district court’s finding that Mr. Jones had

committed perjury when he testified in his own defense.

The court, finding the offense level of 32 and a criminal

history category of VI, calculated the guideline range to be

between 210 and 262 months and sentenced Mr. Jones to the

high end with a sentence of 262 months’ imprisonment.

II

DISCUSSION

A. Denial of Mr. Jones’ Motion to Continue

Mr. Jones asserts that the district court abused its discretion when it denied his second motion to continue. We have

recognized that, as a general rule, once a trial date has been

set, the court ought to adhere to that date unless there are

compelling reasons to grant a continuance. See United States

v. Farr, 297 F.3d 651, 655 (7th Cir. 2002). Nevertheless, the
8 No. 04-2447

3 Mr. Jones’ counsel was aware that Mr. Jones allegedly had

signed the written confession, but he argued at the hearing on the

(continued...)

court cannot have a “myopic insistence upon expeditiousness in the face of a justifiable reason for delay.” United

States v. Robbins, 197 F.3d 829, 846 (7th Cir. 1999) (quoting

Ungar v. Sarafite, 376 U.S. 575, 589 (1964)). In evaluating a

request for a continuance, a district court should weigh a

number of factors, including the following non-exhaustive

list:

1) the amount of time available for preparation; 2) the

likelihood of prejudice from denial of the continuance;

3) the defendant’s role in shortening the effective preparation time; 4) the degree of complexity of the case;

5) the availability of discovery from the prosecution;

6) the likelihood a continuance would satisfy the movant’s needs; and 7) the inconvenience and burden to the

district court and its pending case load.

United States v. Vincent, 416 F.3d 593, 598 (7th Cir. 2005); see

also Farr, 297 F.3d at 655. We shall not reverse the denial of

a motion to continue unless we find an abuse of discretion

and a showing of actual prejudice to the defendant. See

Vincent, 416 F.3d at 598.

Upon review of the record before us, we cannot say

that the district court abused its discretion when it determined that the Vincent factors did not weigh in favor of a

continuance. Invoking the third factor, Mr. Jones attempts

to excuse his role in reducing his amount of preparation

time as “inadvertent” because it arose from his counsel’s

reasonable misunderstanding concerning the written

statement.3

 Appellant’s Br. at 21. However, the district court
No. 04-2447 9

3 (...continued)

motion to continue that he did not become aware that Mr. Jones

also had written the text of the confession until after the final

pretrial conference. It is unclear why it is more significant that

Mr. Jones wrote and signed the document, rather than just signed

the document.

4 See also United States v. Farr, 297 F.3d 651, 655 (7th Cir. 2002)

(finding no abuse of discretion in the denial of a motion to

continue when defendant had gotten the Government’s discovery

material seventy days before trial and failed to review it); United

States v. Robbins, 197 F.3d 829, 846 (7th Cir. 1999) (holding that the

district court did not abuse its discretion when it denied a

continuance to accommodate defense counsel’s tardiness in

reviewing discovery).

found that Mr. Jones’ counsel had been made aware as early

as March 13, 2002 that Mr. Jones produced a written statement. The court took the view that it was not obliged to

grant another continuance to accommodate defense counsel’s tardiness in reviewing discovery materials that had

been available to him. Indeed, we have held that the denial

of a continuance to consult with an expert regarding

government evidence was not an abuse of discretion when

defense counsel had failed to review the discovery in a

timely manner. See United States v. Baum, 435 F.2d 1197, 1202

(7th Cir. 1971).4

 Although Mr. Jones contends that the

misunderstanding regarding who actually wrote the

statement was inadvertent, such negligence does not excuse

him from failing to review the statement in a timely manner

to determine both the scrivener and the signer.

Mr. Jones also contends that the expert testimony

would have aided the jury in judging the credibility of

Mr. Jones and Detective Ramey. Nevertheless, the district

court was entitled to conclude that such testimony
10 No. 04-2447

would have been of limited value in the overall presentation

of his case.

Finally, Mr. Jones submits that there is no indication that

a delay would have wasted judicial resources or would have

“interfered with the smooth operation of the court’s

calendar.” Appellant’s Br. at 23. The district court did

not make any specific statements regarding inconvenience to itself or any party; however, we have noted that

this factor is simply one of many factors that the court may

weigh and consider. See United States v. Miller, 327 F.3d 598,

605 (7th Cir. 2003). Therefore, the court did not abuse its

discretion; after weighing the appropriate factors, “the trial

judge chose an option that was . . . within the range of

permissible options from which we would expect the trial

judge to choose under the given circumstances.” United

States v. Depoister, 116 F.3d 292, 294 (7th Cir. 1997).

Furthermore, Mr. Jones has not demonstrated that he

suffered any prejudice from the denial of his motion to

continue. Since Mr. Jones had not yet hired the handwriting

expert witness and obtained an analysis, we certainly are

not assured that the handwriting expert would have

testified that the statement was not written by Mr. Jones.

Even if the expert had given such testimony, the evidence

against Mr. Jones was overwhelming. Detective Ramey

testified that Mr. Jones had confessed orally and had

provided a written statement. Detective Stalet testified that

Mr. Jones confessed to him that he had intended to sell the

drugs. Additionally, many of the items seized from 940

North Main Street were evidence that Mr. Jones had lived at

940 North Main Street. This evidence included his Illinois

identification card, men’s shaving items and clothes, pages

from his address book, a letter addressed to Mr. Jones and

a cell phone receipt made out to Mr. Jones.
No. 04-2447 11

5 Federal Rule of Evidence 404(b) states, in relevant part:

Evidence of other crimes, wrongs, or acts is not admissible to

prove the character of a person in order to show action in

conformity therewith. It may, however, be admissible for

other purposes, such as proof of motive, opportunity, in-

(continued...)

Moreover, any prejudice to Mr. Jones was minimized by

his counsel’s examination of Government witnesses. His

counsel cross-examined Detective Ramey about Mr. Jones’

statement, through which counsel established that no one

else had observed Mr. Jones make the oral or written

statements and that there was no video or audio recording

of Mr. Jones making these statements. Also, Mr. Jones

testified that he did not write the statement in question.

Mr. Jones also contends that the denial of his motion for

a continuance violated his Sixth Amendment right to

effective representation. However, “only an unreasoning

and arbitrary insistence upon expeditiousness in the face of

a justifiable request for delay violates the right to the

assistance of counsel.” Morris v. Slappy, 461 U.S. 1, 11-12

(1983) (internal quotation marks omitted); see also Vincent,

416 F.3d at 599. Here, before deciding to deny the motion to

continue, the district court considered Mr. Jones’ failure to

review relevant discovery, as well as possible prejudice to

Mr. Jones. Based on this record, we cannot say that the

district court’s decision was unreasoning or arbitrary.

B. Admission of Mr. Jones’ Prior Conviction

Mr. Jones submits that the district court erred in admitting

his 1994 conviction into evidence under Federal Rule of

Evidence 404(b).5

 We review a district court’s decision
12 No. 04-2447

5 (...continued)

tent, preparation, plan, knowledge, identity, or absence of

mistake or accident . . . .

to admit evidence under Rule 404(b) for an abuse of discretion; we ask whether:

(1) the evidence is directed toward establishing a matter

in issue other than the defendant’s propensity to commit the crime charged, (2) the evidence shows that the

other act is similar enough and close enough in time to

be relevant to the matter in issue, (3) the evidence is

sufficient to support a jury finding that the defendant

committed the similar act, and (4) the probative value of

the evidence is not substantially outweighed by the

danger of unfair prejudice.

United States v. Toro, 359 F.3d 879, 884 (7th Cir. 2004)

(quoting United States v. Kreiser, 15 F.3d 635, 640 (7th Cir.

1994)). The third prong of the test is not at issue in this

appeal; we have stated that a conviction is sufficient

to support a jury finding that a defendant committed a

similar act. See United States v. Best, 250 F.3d 1084, 1092 (7th

Cir. 2001).

Mr. Jones had filed a motion in limine requesting that his

prior conviction not be entered into evidence. He contended

that the conviction was “not relevant to proving any fact in

issue other than [his] propensity to commit the crime

charged,” that it was too remote in time to be admissible

and that any probative value would be outweighed by the

prejudice that it would cause him. R.20 at 3-4. In response,

the Government argued that the prior conviction was

admissible to that show Mr. Jones possessed the intent to

distribute the crack because possession with intent to
No. 04-2447 13

6 In addition to the cautionary instruction given when the

evidence was admitted, the court gave the jury the following final

instruction:

You have heard evidence of acts of the defendant other than

those charged in the indictment. You may consider this

evidence only on the question of intent, knowledge, or

absence of mistake or accident. You should consider this

evidence only for this limited purpose.

R.25 at 11.

distribute is a specific intent crime. R.22 at 2 (citing Best, 250

F.3d at 1091).

In assessing this issue, the district court employed the

four-part test set forth above and discussed each part of that

test in reaching the conclusion that the 1994 conviction was

admissible. As to the first prong, the district court stated

that “it is proper to admit this evidence on the issue of

intent.” Trial Tr.II at 319-20. Turning to the second prong,

the district court held that an eight-year-old conviction is

not too old to be admissible. It relied upon United States v.

Tringali, 71 F.3d 1375, 1379 (7th Cir. 1995), which upheld the

admission of a nine-year-old conviction. The district court

further held that, under the fourth prong, the conviction

was not more prejudicial than probative. Nevertheless, the

court agreed to give a cautionary instruction to the jury.6

On appeal, Mr. Jones, relying on Toro, 359 F.3d at 883-84,

submits that it would have been more appropriate to

introduce the evidence if he had admitted possession but

had denied the intent to distribute the drugs. Focusing

on the second prong, Mr. Jones further contends that the

prior conviction was too dissimilar to be admissible because

it was for possession of cocaine, not crack. He also submits

that the earlier conviction was too remote in time to be
14 No. 04-2447

7 We hasten to add that we certainly do not expect a busy district

court to write a lengthy explanation for its decision. Indeed,

when the reason is obvious, there is no need to verbalize any

reason. On more difficult calls, however, the record ought to

reflect a “principled exercise of discretion.” United States v.

Beasley, 809 F.2d 1273, 1279 (7th Cir. 1987).

admissible. Finally, Mr. Jones argues that this evidence was

more prejudicial than it was probative and that the limiting

instruction was not sufficient to safeguard his right to a fair

trial.

First, we must determine whether evidence of the previous conviction was relevant and probative on the issue of

intent. Although we must give great deference to the district

court’s decision to admit the evidence, we pause to point

out that our examination of the record in this case reveals

that the district court’s consideration of the matter does not

appear to reflect the sort of critical evaluation of the issue

that we believe ought to be undertaken in determining

whether, in an exercise of discretion, such evidence ought to

be admitted on the issue of intent. As far as we can ascertain

from the cold record, in deciding the matter, the court

recited the governing principles from our case law, but

otherwise revealed little in the way of critical analysis as to

how those principles ought to apply to the facts of this

particular case.7

 This lapse well may be attributable, in part

at least, to our own treatment of such matters on occasion;

our cases have not always reflected a critical application of

the principles reflected in the case law to the facts of the

individual case. The district court also was not aided by the

conclusory nature of Mr. Jones’ motion in limine that simply

claimed that admission of the evidence was sought simply

to establish propensity to commit the charged offense.
No. 04-2447 15

Similarly, the Government’s reply added little to aid the

court in its decision.

The most obvious justifiable situation in which prior

convictions are admissible in drug prosecutions on the issue

of intent are in those situations in which the defendant,

while admitting possession of the substance, denies the

intent to distribute it. See United States v. Jones, 389 F.3d 753,

757-58 (7th Cir. 2004), vacated, 125 S. Ct. 2948 (2005) (remanding for resentencing in light of Booker). In such a

context, the matter of intent is placed squarely before the

jury, and previous convictions generally are relevant and

probative on the issue of intent. See United States v. Beasley,

809 F.2d 1273, 1279 (7th Cir. 1987). Our case law also has

recognized that evidence of earlier drug trafficking convictions also can be relevant and probative when the defendant

flatly contests all elements of the charge of possession with

intent to distribute. See, e.g., United States v. Chavis, 429 F.3d

662, 668 (7th Cir. 2005) (allowing the admission of 404(b)

evidence after a defendant claimed he was “completely

innocent” and a “clueless bystander”); United States v.

Brown, 34 F.3d 569, 573 (7th Cir. 1994) (stating that “our own

cases are clear—a defendant cannot keep 404(b) evidence

out of his case by denying all charges”); United States v.

Mazzanti, 888 F.2d 1165, 1171 (7th Cir. 1989) (holding that a

blanket denial of any wrongdoing in a conspiracy to

distribute drugs allows the Government to introduce prior

acts to establish intent); United States v. Monzon, 869 F.2d

338, 344 (7th Cir. 1989) (affirming the admission of 404(b)

evidence and stating that “[i]n cases involving specific

intent crimes, intent is automatically in issue”). Here too, the

issue of intent must be established by the Government and

evidence of prior convictions for drug trafficking may be

helpful. As we pointed out in Jones, however, despite the

general utility of this evidence to establish intent, it is
16 No. 04-2447

incumbent on the Government to “affirmatively show why

a particular prior conviction tends to show . . . volition to

commit the new crime.” Id. at 757. See also Chavis, 429 F.3d

at 672-73 (concurring opinion of Cudahy, J.).

The Government’s argument before this court, had it been

made to the district court, would have been of significant

assistance to that court, as it has been to us. An examination

of the record reveals that, at trial, counsel for the defendant

argued to the jury that only a small amount of cocaine was

near the defendant’s identification card and that the remainder of the cocaine, a larger amount, was situated in another

place in the house. Counsel also emphasized the presence of

others at the scene at the time that the search warrant was

executed. A fair reading of counsel’s argument is that Mr.

Jones did not control the larger amount and that the lesser

amount was held for personal use rather than resale. In this

context, an earlier conviction for drug trafficking was

certainly relevant and probative on, among other things, the

issue of Mr. Jones’ intent. It evidenced his knowledge of the

drug trade and the practices of drug dealers in selling their

deadly wares. It also was relevant and probative with

respect to the defendant’s knowledge of the commercial

value of even small amounts of the drug and therefore of his

intent to sell the lesser amount. Accordingly, it certainly was

in the sound discretion of the district court to determine,

given the facts and circumstances presented by this case,

that this evidence was relevant and probative on the

issues placed into contention by Mr. Jones.

Next, the district court acted within its discretion in

deciding that the prior conviction was close enough in

time and sufficiently similar in circumstances to be relevant to the issue of intent. Mr. Jones’ prior conviction

occurred six years before the charged offense; the district
No. 04-2447 17

8 See United States v. Puckett, 405 F.3d 589, 597 (7th Cir. 2005)

(holding that a conviction six years prior to charged offense

is close enough in time to be relevant, and citing cases where

“convictions entered as long as thirteen years prior to subsequent

prosecutions . . . are admissible”); United States v. Tringali, 71 F.3d

1375, 1379 (7th Cir. 1995) (upholding admission of evidence

concerning a 1984 conviction for conspiracy of possession with

intent to distribute admissible in trial for cocaine distribution in

1994).

9 See United States v. Allison, 120 F.3d 71, 74-75 (7th Cir. 1997)

(holding that evidence regarding prior sales of cocaine to an

undercover officer could be offered into evidence when a

defendant was charged with possessing crack with intent to

distribute); see also United States v. Hernandez, 84 F.3d 931, 935 (7th

Cir. 1996) (holding that the prior conviction for possessing over

forty pounds of marijuana was similar enough to be introduced

at trial for a defendant charged with possession with intent to

distribute cocaine and heroin).

court correctly noted that we have allowed similar prior

convictions that were even more temporally distant from

the charged conduct.8

 We also have held that a prior

conviction for distribution of crack is admissible in a case

where the charged act involves distribution of cocaine, as

the distinction between the two drugs is a “distinction

without substance” as “[b]oth crimes involve the possession

with intent to distribute a chemical composition of cocaine.”

United States v. Puckett, 405 F.3d 589, 597 (7th Cir. 2005)

(emphasis in original).9

Finally, the district court certainly did not abuse its

discretion in determining that the prior conviction was

not more prejudicial than probative. Any probative evidence of prior convictions will be prejudicial; however,

we must determine if it was unfairly prejudicial. See Best, 250
18 No. 04-2447

10 See United States v. Griffin, 194 F.3d 808, 821 (7th Cir. 1999)

(same); see also Chavis, 429 F.3d at 668-69 (stating that we

must presume that the jurors followed the district court’s limiting

instruction). 

F.3d at 1093; Puckett, 405 F.3d at 598. Here, the trial court

offered a limiting instruction, and we have held that such

instructions “are effective in reducing or eliminating any

possible unfair prejudice from the introduction of Rule

404(b) evidence.” Best, 250 F.3d at 1093.10 After analyzing

each of the relevant factors, we cannot say that the district

court abused its discretion.

C. Booker

Mr. Jones was sentenced on June 3, 2004, before the

Supreme Court decided United States v. Booker, 543 U.S. 220

(2005). Mr. Jones now contends that the district court’s

application of a two-level enhancement for obstruction of

justice violated his right to a jury trial because it rested on

facts found by the trial judge. Because this issue was not

raised before the district court at sentencing, we review only

for plain error. See United States v. Paladino, 401 F.3d 471, 481

(7th Cir. 2005) (stating that to constitute “plain error,” an

error must affect the defendant’s “substantial rights” and

“seriously affect the fairness, integrity, or public reputation

of judicial proceedings”).

We have held that, when a district court sentenced a

defendant under the belief that the Guidelines were mandatory, a limited remand may be necessary to determine what

sentence the district court would have imposed had it

realized that the Guidelines were advisory. See United States
No. 04-2447 19

v. Johnson, 427 F.3d 423, 429 (7th Cir. 2005); Paladino, 401

F.3d at 483-84.

However, a “remand is necessary only when uncertainty

otherwise would leave this court in a fog about what the

district judge would have done with additional discretion.”

United States v. Lee, 399 F.3d 864, 866 (7th Cir. 2005); see also

Johnson, 427 F.3d at 429 (stating that a remand is only

necessary “if we are in doubt” about what a district court

would have done); Paladino, 401 F.3d at 483. Therefore,

when a district court expressed at sentencing “a strong

preference to give a higher sentence if [it] could do so,” we

can be assured that none of a defendant’s substantial

rights were adversely affected by the application of preBooker law. Lee, 399 F.3d at 867.

In this case, the district court stated that, had Mr. Jones’

counsel not successfully gotten his base offense level

lowered from 32 to 30, he would have faced a sentence of

327 months’ imprisonment, a sentence which the court

stated that Mr. Jones “richly deserve[d].” R.66 at 54. Additionally, the trial court sentenced Mr. Jones to the maximum

sentence in his guidelines range, noting that “it would

deprecate the seriousness of your conduct in this case and

your criminal conduct through your life . . . for me to

sentence you to any less than the maximum sentence. . . .”

Id. Given the trial court’s statement that Mr. Jones “richly

deserve[d]” a higher sentence, we need not remand this case

to permit the district court to determine how it would have

sentenced Mr. Jones had the Guidelines not been mandatory.
20 No. 04-2447

Conclusion

For the reasons set forth in this opinion, the judgment of

the district court is affirmed.

AFFIRMED

EASTERBROOK, Circuit Judge, concurring. Although I

join the court’s opinion, a few extra words are in order

about the introduction of Jones’s prior drug conviction.

Rule 404(b) provides that evidence of prior bad acts

(including convictions) is inadmissible to show character or

propensity but may be admissible to show intent, motive, or

some other subject material to the trial. In this prosecution,

as in quite a number of others we have seen in recent years,

the parties and district judge alike treated the rule’s second

sentence as if it were a rule of admissibility. It is not; it says

that evidence “may” be admissible for a given purpose, not

that it is automatically admissible. Allowing the jury to

learn about the defendant’s criminal history, with or

without a pro forma limiting instruction, invites the impermissible inference. Whether a conviction (or other bad act)

is admissible depends not on Rule 404(b) but on whether it

is relevant (Rule 402) and whether its probative value

outweighs the considerable potential for prejudice (Rule

403). See, e.g., United States v. Beasley, 809 F.2d 1273 (7th Cir.

1987); United States v. Seals, 419 F.3d 600, 610-12 (7th Cir.

2005) (Posner, J., concurring); United States v. Chavis, 429

F.3d 662, 672-73 (7th Cir. 2005) (Cudahy, J., concurring).
No. 04-2447 21

Although intent always is at issue in a drug-distribution

case—for a plea of not guilty puts the prosecution to its

proof on every element of the offense—a conviction or other

bad act may or may not be relevant to that topic. I have

grave doubts about the prosecution’s theory of relevance in

this prosecution. Jones argued that he did not own the

distribution-size cache of drugs that investigators found; he

admitted only to the personal-use-size cache that was in a

different location. According to the prosecutor Jones’s

conviction shows that he had learned to separate stocks of

drugs in order to throw the hounds off the scent. Yet how

does the conviction show this? Is it that every drug dealer

knows this trick of the trade? Of that there is no evidence,

and it is not something that a jury could find without proof.

Is it that Jones’s conviction shows that his former strategy

had flopped, so he hit upon this as something new? Of that

there is no evidence either; we don’t know the facts underlying the 1994 conviction. Thus the prosecutor’s theory boils

down to a belief that a drug conviction always is relevant in

any later drug prosecution, and Beasley disapproves that

perspective.

Maybe the prosecutor could have supplied the subsidiary

facts needed to make this theory of relevance fly. We

will never know, because in the district court neither the

litigants nor the district judge discussed this subject on the

record. The defense’s objection was based not on Rule 402

but on a theory that the conviction was old and therefore

“stale”—as if convictions were breakfast pastries left too

long in a shop’s display case. That’s a bad objection: if

Jones’s prior acts do imply something about his intent or

method of operation, it is unlikely that he would have

forgotten his knowledge of the drug trade during his time

behind bars. Jones’s counsel confused Rule 609(b), which

makes the passage of time pertinent when a conviction is
22 No. 04-2447

used for impeachment, with Rules 402 and 403. Because

the objection was off target, the judge never concentrated on

what really matters to the proper use of convictions under

the Rules of Evidence.

Prosecutors sometimes argue that we need not worry

because district judges give limiting instructions. Most of

these are formulaic, however, and of little help—and they

may make things worse. Telling juries not to infer from

the defendant’s criminal record that someone who violated the law once is likely to do so again is like telling

jurors to ignore the pink rhinoceros that just sauntered into

the courtroom. Often judges just recite the language of

Rule 404(b), instructing jurors that the conviction may be

used “as proof of motive, opportunity, intent, preparation,

plan, knowledge, identity, or absence of mistake or accident”. Jurors are likely to hear this as so much mumbojumbo. The Federal Rules of Evidence speak to the bench

and bar; for jurors, translation is essential.

Here the district judge avoided that pitfall by using

instruction 3.04 from the Pattern Criminal Federal Jury

Instructions for the Seventh Circuit. This pattern instruction is:

You have heard evidence of acts of the defendant other

than those charged in the indictment. You may consider

this evidence only on the question of ________. You

should consider this evidence only for this limited

purpose.

The judge filled in the blank with “intent.” That’s a good

start but leaves the jury at sea. How would a conviction

show “intent”? The prosecutor’s argument on appeal is that

it shows not intent but knowledge of an avoidance technique (separating commercial from personal supplies). This

“limiting” instruction is so general that it does not effec-
No. 04-2447 23

tively distinguish appropriate from inappropriate inferences. A good limiting instruction needs to be concrete

so that the jury understands what it legitimately may do

with the evidence.

The risk that jurors will draw the forbidden propensity

inference from prior convictions makes it prudent for the

court to exclude them under Rule 403 unless in opening

argument the defendant’s lawyer makes an argument (such

as the defendant’s supposed inability to recognize a white

powder as cocaine) that highlights intent, knowledge, or

some other appropriate use of bad acts. If the evidence is

excluded during the opening presentation, and something unexpected comes up during the defense case, the

prosecutor can wheel out the conviction during rebuttal; by

then its relevance (or irrelevance) should be apparent.

Allowing a prosecutor routinely to introduce drug convictions in the case in chief without demonstrating relevance

to some concrete dispute between the litigants creates

needless risk that a conviction will rest on the forbidden

propensity inference.
24 No. 04-2447

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—8-1-06