                                UNPUBLISHED ORDER
                             Not to be cited per Circuit Rule 53




          United States Court of Appeals
                                 For the Seventh Circuit
                                 Chicago, Illinois 60604

                                Submitted May 12, 2006
                                 Decided June 26, 2006

                                          Before

                           Hon. FRANK H. EASTERBROOK, Circuit Judge

                           Hon. MICHAEL S. KANNE, Circuit Judge

                           Hon. DIANE P. WOOD, Circuit Judge


No. 05-4757

UNITED STATES OF AMERICA,                          Appeal from the United States
              Plaintiff-Appellee,                    District Court for the
                                                     Central District of Illinois
              v.
                                                   No. 02-20014
PHILIP D. JONES,
             Defendant-Appellant.                  Michael P. McCuskey, Chief Judge.




                                       ORDER

        This is the second time that we have considered Philip Jones’s sentence since we
affirmed his 2002 conviction for possession with the intent to distribute more than 500
grams of cocaine. See United States v. Jones, 389 F.3d 753 (7th Cir. 2004). During the
first round of sentencing, the district court classified Jones as a career offender under
USSG § 4B1.1 and sentenced him to 360 months in prison–the minimum sentence
within the applicable guidelines range of 360 months to life. After this court upheld
Jones’s conviction and sentence, the Supreme Court granted certiorari and remanded
his case to us for further consideration in light of United States v. Booker, 543 U.S. 220
(2005). We ordered a limited remand pursuant to the procedures set forth in United
States v. Paladino, 401 F.3d 471, 483-84 (7th Cir. 2005), to allow the district court an
No. 05-4757                                                                           Page 2


opportunity to consider whether it would have imposed the same sentence with the
knowledge that the guidelines are not mandatory. The district court replied that it
would have ordered a different sentence under the advisory guidelines regime, and in
due course, we vacated Jones’s sentence and remanded his case to the district court.

       On remand, the district court reaffirmed that the advisory guidelines range was
360 months to life, but it decided to sentence Jones below that range, to 240 months
in prison. Still dissatisfied, Jones filed a notice of appeal. His appointed lawyer has
now moved to withdraw under Anders v. California, 386 U.S. 738 (1967), because he
cannot discern any nonfrivolous grounds for appeal. We informed Jones that he could
respond to counsel’s motion, see Circuit Rule 51(b), but he has not done so. We
therefore limit our review to the potential issues raised in counsel’s facially adequate
brief. See United States v. Tabb, 125 F.3d 583, 584 (7th Cir. 1997) (per curiam).

        Counsel first considers a potential argument that the district court erred in
classifying Jones as a career offender. Under USSG § 4B1.1, a defendant is a career
offender if, among other criteria, she has at least two prior convictions for either a
crime of violence or a controlled substance offense. In classifying Jones as a career
offender, the district court took into account Jones’s 1994 conviction for attempted
delivery of a controlled substance and his 1999 conviction for possession of cannabis
with the intent to deliver, both from Macon County, Illinois. According to counsel’s
brief, at his initial sentencing, Jones objected to the district court’s consideration of the
1994 conviction. Although he admitted that he had served nearly two years in custody
for that offense, and USSG § 4B1.2(b) (which defines the terms used in § 4B1.1) defines
“a controlled substance offense” as any offense punishable by a term of imprisonment
of more than one year, Jones argued that there was some error in the state court
proceeding and that he should have been sentenced for a misdemeanor offense. As
counsel notes in his Anders brief, Jones has probably waived this argument, because
he did not raise any objection to the district court’s consideration of the 1994 conviction
at resentencing. Putting waiver or forfeiture to one side, we agree with counsel that
any such argument would be frivolous. A “prior conviction is conclusive for purposes
of recidivist sentencing.” Ryan v. United States, 214 F.3d 877 (7th Cir. 2000). The fact
is that Jones was convicted of a controlled substance offense punishable for a term
exceeding one year, and we will not consider any challenges to the propriety of that
conviction or sentence at this point. Second, based on objections that Jones made
during resentencing, counsel also anticipates that Jones might try to argue that his
1999 conviction for possession of cannabis is not a “controlled substance offense” for
purposes of the career offender enhancement. Any such argument is foreclosed,
however, by our decision in United States v. Kelly, 991 F.2d 1308, 1316 (7th Cir. 1993).

      Counsel also considers whether Jones could challenge his sentence as
unreasonable. In the absence of any argument that the district court’s guidelines
No. 05-4757                                                                         Page 3


calculation was incorrect, we have a hard time imagining what Jones would want to
say. The district court has already given him a sentence 120 months below the bottom
of the advisory guidelines range. Specifically, after calculating that range and then
considering the factors listed in 18 U.S.C. § 3553(a), including the fact that Jones was
not a violent offender and that he had the potential for rehabilitation, the district court
concluded that the minimum 360-month sentence under the guidelines was too harsh,
but that sentencing Jones to the ten-year statutory minimum would be unreasonable
in light of Jones’s status as a repeat offender. As a result, the district court decided to
split the difference and sentenced Jones to 240 months in prison. We have said that it
is sufficient for the district court to “calculate the [guideline] range accurately and
explain why (if the sentence lies outside it) the defendant deserves more or less.”
United States v. Alburay, 415 F.3d 782, 787 (7th Cir. 2005). The district court’s
resentencing decision fully justifies the sentence it imposed. In fact, we think that
Jones fared pretty well at resentencing.

      We GRANT counsel’s motion to withdraw and DISMISS Jones’s appeal.
