                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 05-4272
UNITED STATES     OF   AMERICA,
                                                 Plaintiff-Appellee,
                                 v.

CHRISTOPHER JONES,
                                            Defendant-Appellant.
                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
            No. 02 CR 618—Joan B. Gottschall, Judge.
                          ____________
       ARGUED APRIL 4, 2006—DECIDED MAY 23, 2006
                      ____________


  Before POSNER, WOOD, and EVANS, Circuit Judges.
  EVANS, Circuit Judge. Christopher Jones had a history of
small-time crime involving retail theft and possession
of marijuana going back to 1993. For each of his brushes
with the law he received correspondingly small-time
penalties from Illinois courts: orders of supervision ranging
from 6 to 12 months. Jones then decided to try his hand at
selling crack cocaine. Unfortunately, after he was caught
and convicted—this time in a different forum—he found
federal law to be far less forgiving.
 The facts are not disputed. One day in June 2002, Jones
met codefendant Anthony Dockery in a parking lot on
Chicago’s far south side. A deal was done: Jones sold
2                                                No. 05-4272

Dockery 51 grams of crack for $1,700. Later the same day,
the two had several phone conversations during which
Dockery arranged to purchase three more ounces of crack
for $2,500. The two made arrangements to meet again at
the same parking lot. When Jones appeared, federal agents
arrested him. They also found 78 grams of crack in his
vehicle. Agents later searched Jones’s house and found
72 grams of crack and 15 grams of powder cocaine in
another vehicle. Pursuant to an agreement with the gov-
ernment, Jones pled guilty to possession with intent to
distribute in excess of 50 grams of crack cocaine, in vio-
lation of 21 U.S.C. § 841(a)(1). He was sentenced to the
mandatory minimum term of 120 months.
  In this appeal of his sentence, Jones objects to the
counting of four of his previous state offenses, which under
the United States Sentencing Guidelines gave him four
criminal history points and put him in criminal history
category III. Jones argues that his dispositions of court-
ordered supervision should not be considered prior “convic-
tions” or “sentences.” Without the four prior offenses, Jones
argues he would have been eligible for the “safety valve”
provision of 18 U.S.C. § 3553(f), which allows a court to
waive the mandatory minimum sentence for certain drug
defendants who have no more than one criminal history
point and meet other criteria. We review a sentencing
court’s legal interpretation of the guidelines de novo. United
States v. Phillips, 239 F.3d 829, 847 (7th Cir. 2001).
   Jones’s appeal focuses on the meaning, for federal
purposes, of Illinois dispositions of supervision. Under
Illinois law, a “court may, upon a plea of guilty or a stipula-
tion by the defendant of the facts supporting the charge or
a finding of guilt, defer further proceedings and the imposi-
tion of a sentence, and enter an order for supervision of the
defendant . . . .” (exceptions omitted). 730 ILCS 5/5-6-1(c).
When supervision is successfully concluded, “the court shall
discharge the defendant and enter a judgment dismissing
the charges.” 730 ILCS 5/5-6-3.1(e). Further,
No. 05-4272                                                3

      Discharge and dismissal upon a successful conclusion
    of a disposition of supervision shall be deemed without
    adjudication of guilt and shall not be termed a convic-
    tion for purposes of disqualification or disabilities
    imposed by law upon conviction of a crime. Two years
    after the discharge and dismissal . . . a person may
    have his record of arrest sealed or expunged as may be
    provided by law.
730 ILCS 5/5-6-3.1(f).
   The effects of these provisions for guidelines purposes
is not a new question for us. In United States v. Stowe, 989
F.2d 261, 263 (7th Cir. 1993), we noted that while a number
of jurisdictions have procedures by which previ-
ous convictions may be set aside or a defendant pardoned
for reasons unrelated to innocence or errors of law, sen-
tences resulting from such convictions were intended to be
counted under the federal guidelines. Such diversionary
dispositions by a state court are distinguished from deferred
prosecutions. See id. “A diversionary disposition resulting
from a finding or admission of guilt, or a plea of nolo
contendere, in a judicial proceeding is counted as a sentence
. . . even if conviction is not formally entered . . . .” Id.
(quoting U.S.S.G. § 4A1.2(f)). See also United States v.
Moore, 25 F.3d 563, 570 (7th Cir. 1994) (disposition of
supervision is a “prior sentence”).
  In United States v. Binford, 108 F.3d 723 (7th Cir. 1997),
cert. denied, 521 U.S. 1128 (1997), we considered the case of
a federal drug defendant who had previously received one
year of Illinois supervision for illegal transportation of
alcohol. We explained that “[s]upervision is a sentence for
purposes of” the guidelines, id. at 727, and noted that
U.S.S.G. § 4A1.2(a)(3) specifies that “[a] conviction for
which the imposition or execution of sentence was totally
suspended or stayed shall be counted as a prior sentence
under § 4A1.1(c),” see id. Examining their respective
4                                                No. 05-4272

definitions under Illinois law, we concluded that “supervi-
sion is the functional equivalent of conditional discharge,
which we previously have held to be the functional equiva-
lent of probation. The bottom line is that probation, condi-
tional discharge and supervision all allow a convicted
defendant to stay out of prison so long as he stays out of
trouble.” Id. “The only difference between conditional
discharge and supervision is that the charges against a
convicted defendant on supervision may ultimately be
dismissed. This is of no consequence for purposes of [the
federal sentencing guidelines].” Id. at 727-28.
   A year later in United States v. Burke, 148 F.3d 832 (7th
Cir. 1998), cert. denied, 525 U.S. 1031 (1998), we reaffirmed
our holding in Binford that court supervision is the func-
tional equivalent of probation. Id. at 839. We also reaf-
firmed our holding from Stowe that even if Illinois allows a
defendant’s conviction to be “set aside under Illinois law for
purposes of removing the stigma associated with a criminal
conviction and to restore his civil rights,” id. at 839-40
(quoting Stowe, 989 F.2d at 263), the guidelines “do not rely
on state definitions or labels,” id. at 839. In the view of
federal law, a “defendant is no less guilty of the offense
after completing his court supervision than he was when he
was found guilty, whether or not Illinois still considers him
a misdemeanant.” Id. at 840. Finally, in United States v.
Smith, 223 F.3d 554, 578-79 (7th Cir. 2000), we held that a
stipulation by the defendant to the facts supporting a
charge had the same effect as a plea or finding of guilt,
since Illinois law allows for supervision under any of these
scenarios.
   From this background, it should be clear that whatever
the semantics of the terms “conviction” and “sentence,”
court-ordered dispositions of supervision are properly
counted in the computation of criminal history under
U.S.S.G. § 4A1.2. Jones, however, seizes on language in
Illinois law which provides that after a defendant has
No. 05-4272                                                  5

successfully completed supervision, “the court shall dis-
charge the defendant and enter a judgment dismissing
the charges.” 730 ILCS 5/5-6-3.1(e). He reasons that if
someone doesn’t have a formal judgment of conviction on
his record, his supervision cannot be considered to have
been a “sentence.” As he explains his view in his brief, “a
defendant laboring under a court order of supervision has
not been convicted, since all proceedings have been deferred
. . . . The defendant does not have a conviction unless or
until he fails to complete his order of supervision. . . . An
admission of guilt without an adjudication of guilt is no
conviction.” For similar reasons, Jones takes issue with our
holding in Binford equating supervision with probation and
conditional release, since the latter sentences are imposed
only after a judgment of conviction.
  Finally, Jones reminds us that “[d]ischarge and dismissal
upon a successful conclusion of a disposition of supervision
shall be deemed without adjudication of guilt and shall not
be termed a conviction for purposes of disqualification or
disabilities imposed by law upon conviction of a crime.” 730
ILCS 5/5-6-3.1(f) (emphasis added). He contrasts this
language with the guidelines definition of a prior sentence
as “any sentence previously imposed upon adjudication of
guilt, whether by guilty plea, trial, or plea of nolo conten-
dere . . . .” U.S.S.G. § 4A1.2(a)(1).
  Jones makes a valiant effort, but we are not persuaded.
The upshot of his argument is to equate the postsupervision
dismissal of charges with a finding of innocence or a pardon.
But this is clearly not the effect of court-ordered supervi-
sion.
  While “a disposition of supervision shall be deemed
without adjudication of guilt . . . for purposes of disqualifi-
cation or disabilities imposed by law upon conviction of
a crime,” 730 ILCS 5/5-6-3.1(f), this does not mean that
a judicial proceeding did not occur, or that the defendant’s
6                                                No. 05-4272

guilt was not established after a guilty plea, stipulation
to facts, or plea of nolo contendere. Indeed, Jones never
denies that the dispositions of supervision he received were
duly assessed penalties for his offenses. However the effects
of a judicial proceeding might be retroactively transmogri-
fied for purposes of Illinois law, a disposition of supervision
is in fact preceded by an “adjudication of guilt.” It is,
therefore, countable under the federal sentencing guide-
lines. See U.S.S.G. § 4A1.2(a)(1). After all, the Due Process
Clause does not let judges go around imposing court-ordered
supervision on innocent people. A disposition of supervision
is not to be confused with a deferred prosecution. In the
latter, a defendant avoids an adjudication of guilt because
he never reaches that point in the criminal process.
  Moreover, when a case is dismissed after supervision, the
court does not wave a magic wand to erase the defendant’s
criminal conduct from the time-space continuum. Dismissal
may give a petty criminal a break for certain purposes
under state law, but it does not compel us to pretend that
the wrongdoing for which he was found culpable never
occurred. And it is the fact of that prior wrongdoing, not
how the judicial disposition is labeled, which matters in
calculating criminal history. Stowe, 989 F.2d at 263;
U.S.S.G. § 4A1.2(f). Counting diversionary dispositions that
involve admission or judicial determination of guilt reflects
“a policy that defendants who receive the benefit of a
rehabilitative sentence and continue to commit crimes
should not be treated with further leniency.” U.S.S.G.
§ 4A1.2 App. Note 9.
   Contrary to Jones’s assertion, counting dispositions of
supervision in calculating criminal history under the
guidelines does not “undermine the design and effect” of
Illinois law, nor violate principles of federalism or the Ninth
Amendment. As the Illinois Supreme Court has explained:
      A person who has previously received court supervi-
    sion . . . with the dismissal of charges at the end of the
No. 05-4272                                                   7

    supervision term, does not have a conviction on his
    record for that offense. To have been eligible for the
    term of supervision . . . however, the person must
    necessarily either have pleaded guilty to, or stipulated to
    facts supporting, the underlying charge, or have been
    found guilty of the offense. Persons who have never
    been charged with, or who have been acquitted of [an
    offense for which supervision may be imposed] have not
    previously admitted either guilt or inculpatory facts,
    nor have they been found guilty of such misconduct. A
    rational basis exists, therefore, for distinguishing those
    who have previously undergone supervision from those
    who have not.
State v. Coleman, 111 Ill.2d 87, 95-96 (1986) (internal
citation omitted, emphasis added).
  The state supreme court also explained that while a
disposition of supervision is intended to mitigate some of
the stigma associated with a conviction, it does not to
foreclose all consequences of the defendant’s prior misdeeds.
“Use of a prior disposition of supervision as an aggravating
factor in sentencing is not a ‘disqualification or disability
imposed by law.’ ” Id. at 97 (quoting 730 ILCS 5/5-6-3.1(f)).
“Rather, that phrase contemplates certain rights which are
lost as a matter of law by criminal convictions. These
include the right to hold public office, to vote, and to possess
a firearm.” Id. (internal citations omitted).
  After the slaps on the wrist he received for his prior bad
acts, Jones may have been surprised to discover the harsh-
ness with which federal law views drug crimes. The reality,
though, is that he cannot simply make his criminal history
go away.
  The sentence imposed by the district court is AFFIRMED.
8                                         No. 05-4272

A true Copy:
      Teste:

                    ________________________________
                    Clerk of the United States Court of
                      Appeals for the Seventh Circuit




               USCA-02-C-0072—5-23-06
