                          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 consecu-
tively 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 con-
currently. The district court did not agree and sentenced
Johnson to serve 35 months of his federal sentence con-
secutive to his state sentence. We conclude that the dis-
2                                            No. 02-2016

trict court did not err in holding that the state drug of-
fense 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 characteriza-
tion of the relationship between two drug convictions.
The first arose out of a 1999 drug trafficking investiga-
tion by state law enforcement officials in Decatur, Illi-
nois. 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 co-
caine 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 oc-
cupant, 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 co-
caine, 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 Wil-
son to possess and distribute powder cocaine from Octo-
ber 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 Correc-
tions.
  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 conspir-
acy relating to powder cocaine, he sold approximately
one ounce of crack cocaine to a confidential source work-
ing 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 John-
son’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 de-
termination 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 con-
secutively to the state sentence. It is this relevancy deter-
mination 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 attrib-
utable 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 im-
prisonment. 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 adjust-
ment 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 con-
viction 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 pro-
visions 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 sen-
tence 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 fed-
eral sentence to run consecutively to the state sentence,
resulting in an overall shorter term of imprisonment. See
6                                                    No. 02-2016

U.S.S.G. § 5G1.3(b). Under § 5G1.3(b), if offense conduct
underlying an earlier, undischarged term of imprison-
ment is “fully taken into account” when fashioning the
subsequent sentence, the guidelines quite sensibly pro-
vide 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 re-
quired to impose the second sentence concurrently. See
id. (“[T]he sentence for the instant offense shall be im-
posed to run concurrently to the undischarged term of
imprisonment.” (emphasis added)). If, however, the un-
charged 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



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 counterfactu-
ally anchoring sentences around the punishment a defendant
would have received had the sentences been imposed simulta-
neously, 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)).
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 con-
secutively to the state sentence. The issue raised by John-
son on appeal is whether the sentencing court should
have concluded that Johnson’s prior state-law drug con-
viction was relevant conduct for purposes of sentencing
him on the federal charge, meaning that the state of-
fense 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 rele-
vant. 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 con-
nected to each other by at least one common factor, such
as common victims, common accomplices, common pur-
pose, or similar modus operandi.” U.S.S.G. § 1B1.3 cmt. n.9.
Further, offenses may be within the “same course of con-
duct 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 of-
fense.” 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 suffi-
cient differences between Johnson’s state-law drug con-
viction 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 rela-
tionship” between the 1999 drug conspiracy and the 2000
drug sale existed, as the two events do not share “a sig-
nificant 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 state-
law drug-conspiracy activities took place in mid- to late-
1999, while Johnson’s sale of crack cocaine to a confiden-
tial 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 sep-
arate 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 conspir-
acy 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 cocon-
spirators, 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 conspir-
acy involved cocaine distributed in cooperation with cocon-
spirators Bullock and Wilson to various unnamed custom-
ers, 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 in-
volved 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 cocon-
spirators 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 sentenc-
ing court determined that Johnson’s state drug convic-
tion was not part of the same course of conduct or com-
mon 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 determina-
tion was erroneous. Thus, the district court did not clear-
ly 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 guide-
lines 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
