202 F.3d 992 (7th Cir. 2000)
United States of America,    Plaintiff-Appellee,v.Mardisco Staples and Delwin Brown,    Defendants-Appellants.
Nos. 99-1630 & 99-1876
In the  United States Court of Appeals  For the Seventh Circuit
Argued October 26, 1999Decided February 2, 2000

Appeals from the United States District Court  for the Central District of Illinois.  No. 98 CR 20060--Michael P. McCuskey, Judge. [Copyrighted Material Omitted]
Before Harlington Wood, Jr., Kanne and Diane P. Wood,  Circuit Judges.
Kanne, Circuit Judge.


1
Mardisco Staples and  Delwin Brown challenge the calculation of the  sentences for their convictions for possession  with intent to distribute crack cocaine. Staples  and Brown pleaded guilty to the one-count  indictment and, based on their individual  criminal histories, were sentenced to 150 months  and 292 months in prison, respectively. They  contend that the district court erred in applying  the United States Sentencing Guidelines,  resulting in longer terms in prison than their  criminal histories merited. The district court's  interpretation of the Guidelines was reasonable  and correct, and we affirm Staples' and Brown's  sentences.

I.  History

2
On September 1, 1998, police in Champaign,  Illinois, executed a search warrant at the home  of Mardisco Staples and found 357.1 grams of  crack cocaine, two guns and $2,784 in cash.  Delwin Brown, Staples and Staples' brother,  Burnell Staples ("Burnell"), were in the house at  the time of the raid. All three were arrested,  and Brown and Burnell made statements to the  police implicating themselves and Staples in a  drug trafficking operation between Chicago and  Champaign. Brown had been sending couriers to  Chicago every two or three days to pick up a half  kilogram or more of crack and bring it to  Champaign. Burnell told police that Brown had  arrived just that day with a shipment of crack,  which Brown and Staples broke down into smaller  quantities for distribution. Burnell admitted  that Brown had given him 7.4 grams that day.  Brown confirmed the trips to Chicago had been  taking place and, when asked if he had just  received crack from his source, responded, "Yeah,  you got it all didn't you?"


3
The grand jury indicted Brown and Staples, and  the two entered guilty pleas. Brown was held  accountable for 1.5 kilograms of crack, resulting  in a base offense level of thirty-eight. He  received a two-level increase for possession of  the handguns and a three-level decrease for  accepting responsibility for his crime. Based on  his Presentence Investigation Report (PSR), his  criminal history scored in category IV, under  which an offense level of thirty-seven allows a  range of 292-356 months imprisonment. The  district court based the criminal history  determination in part on Brown's previous  convictions for reckless conduct and discharging  an air rifle. On April 2, 1999, the court  sentenced Brown to the bottom of that range.


4
Staples was held accountable for 357.1 grams  for a base offense level of thirty-four.He  received the same adjustments, but the district  court determined that his proposed criminal  history category of VI over-represented the  seriousness of his past crimes. With the  government's approval, the court reduced his  criminal history to category V and his base  offense level to twenty-nine, making the  appropriate range 140-175 months in prison. The  district court calculated Staples' criminal  history based on convictions for the same air  rifle incident and also for driving with a  suspended license. The court sentenced Staples to  150 months.

II.  Analysis

5
Staples and Brown challenge the computation of  their criminal histories. Both men contend the  district court committed error when it assessed  one criminal history point for the municipal  conviction related to discharging a weapon.  Individually, Staples challenges the assessment  of two points for his conviction for driving with  a suspended license. Brown challenges the one-  point assessment for reckless conduct.

A.  Brown's Waiver

6
The government contends that Brown waived his  right to appeal the calculation of his criminal  history at his sentencing hearing. Waiver occurs  when a defendant intentionally relinquishes a  known right. See United States v. Olano, 507 U.S.  725, 730-34 (1993); Johnson v. Zerbst, 304 U.S.  458, 464 (1938); United States v. Griffin, 84  F.3d 912, 924 (7th Cir. 1996). Waiver  extinguishes the error and precludes appellate  review. See Olano, 507 U.S. at 733. Brown  believes that he did not waive his right to  challenge the PSR, but merely forfeited it.  Forfeiture is a doctrine related to waiver, but  instead of precluding all appellate review, it  permits plain error review. See id. at 730-34.  One forfeits his rights by failing to assert them  in a timely manner. See id. at 733. Where waiver  is accomplished by intent, forfeiture comes about  through neglect.


7
In United States v. Redding, 104 F.3d 96, 99  (7th Cir. 1996), a defendant waived his right to  appeal his criminal history calculation when he  filed no written objections and did not verbally  object at his sentencing hearing. Counsel for the  defendant in Redding stated to the sentencing  judge, "[a]t present, we accept for the purposes  of this sentencing hearing the calculations  regarding criminal history, although I believe  that does not bind [the defendant] from possible  collateral attack regarding these matters."  Redding, 104 F.3d at 98 n.1. We held that the  defendant waived his right to appeal despite the  fact that the defendant had objected to the  criminal history at a pre-sentencing hearing. Id.  at 99.


8
Here, the government makes an even stronger  case for waiver. Despite being provided advance  notice of the PSR's contents and an opportunity  to object before and during the sentencing  hearing, Brown and his counsel did not. According  to Brown's counsel, the defendant "ha[s] not  filed any objections. And I spoke with Mr. Brown  this morning, and he indicated to me that we . .  . have no objections to the presentence report."  Accordingly, we find that the defendant knew he  had a right to object to the calculation of his  criminal history, knew the contents of the report  and affirmatively decided not to object. This  decision shows intent to waive the right, not  ignorance or neglect of the right. The defendant  therefore has waived his right to appeal the  calculation of his criminal history.

B.  Staples' Appeal
1.  The Discharging a Weapon Conviction

9
Staples argues that his conviction for  discharging a weapon should not have been counted  in his criminal history because the Guidelines  specifically exclude convictions for local  ordinance violations, except in limited  circumstances. See U.S. Sentencing Guidelines  Manual sec. 4A1.2(c)(1). The Guidelines, however,permit counting "local ordinance violations that  are also criminal offenses under state law." Id.  The question today is whether Staples' conviction  for discharging a weapon was a criminal offense  under Illinois law. We review de novo a  sentencing court's conclusions of law. See United  States v. McClanahan, 136 F.3d 1146, 1149 (7th  Cir. 1998).


10
Police arrested Staples and Brown on August 14,  1995, and charged them with "shooting a Crossman  760 Pumpmaster pump air rifle at street lights  and at a train." Staples pleaded guilty on  February 16, 1996, to discharging a weapon and  was fined $280. The Illinois Air Rifle Act, 720  Ill. Comp. Stat. 535/3 (West 1993), makes it  "unlawful for any person to discharge any air  rifle from or across any street, sidewalk, road,  highway or public land or any public place except  on a safely constructed target range." Shooting  an air rifle at street lights and a train  violates this section and therefore must be  counted under sec. 4A1.2(c).


11
Staples nonetheless argues that the government  did not carry its burden of proof on this issue  when it failed to cite the air rifle statute at  sentencing. However, in the matter of exclusions  from Guidelines calculations under sec.  4A1.2(c)(1), the defendant and not the government  carries the burden of proof. See United States v.  Booker, 71 F.3d 685, 688 (7th Cir. 1995). The  government's failure to cite the state law  similar to the local ordinance was not error  since the government did not carry the burden of  proof on this issue.


12
Next, Staples argues that the air rifle  conviction should be excluded because it was  similar to "disorderly conduct or disturbing the  peace," which would not be counted in this  situation. Under Illinois law, a person commits  disorderly conduct when he knowingly "does any  act in such unreasonable manner as to alarm or  disturb another and to provoke a breach of the  peace." 720 Ill. Comp. Stat. 5/26-1(a)(1). While  Staples and Brown obviously violated this section  when they shot the air rifle, there are few  offenses--felonies or misdemeanors--that do not  satisfy this definition. The question is not  whether they disturbed the peace, but whether  their criminal conduct most appropriately should  be considered as one of those offenses "similar  to [disturbing the peace], by whatever name they  are known." U.S.S.G. sec. 4A1.2(c)(1). We look to  the actual offense conduct and the sentence  deemed appropriate by the sentencing judge to  determine if the acts are similar. See United  States v. Boyd, 146 F.3d 499, 501-02 (7th Cir.  1998).


13
The fact that the Illinois General Assembly saw  fit to criminalize air rifle offenses separately  rather than leave it to the disorderly conduct  statute provides at least some evidence that  lawmakers considered the offense dissimilar to  disturbing the peace. Disturbing the peace in  Illinois is a Class C misdemeanor, punishable by  up to a year in jail. See 720 Ill. Comp. Stat.  5/26-1(b)(1). Discharging an air rifle is a petty  offense, punishable only by a fine. See 720 Ill.  Comp. Stat. 535/7. This distinction provides  another point of dissimilarity, but weighs in the  defendant's favor as probative evidence that the  air rifle offense is less serious in the eyes of  state lawmakers. However, the state legislature's  classification of crimes is not dispositive; the  application of the Guidelines is a matter of  federal law. See Booker, 71 F.3d at 688-89.


14
The sentencing judge ordered Staples to pay a  $280 fine, an indication that the offense was  deemed minor, but the underlying conduct for  which the defendant was sentenced weighs most  heavily in this analysis. In this case, a  comparison of the conduct weighs strongly in  favor of treating the weapons conviction  differently than disturbing the peace. The  disorderly conduct statute is aimed at annoying  and disruptive actions, such as calling in false  fire alarms, making unreasonable noise, urinating  in public, inciting a fight and a variety of  other harassing and threatening behaviors.  Staples' crime went beyond this, potentially  putting at serious risk the safetyof the public  by shooting at a vehicle with a weapon. Trains,  even the cargo variety, are operated and  inhabited by people, and the danger of serious  injury from shooting at a train is obvious. The  list of offenses in sec. 4A1.2(c)(1) does not  include "discharging a weapon" for a good reason:  It is a dangerous and serious behavior that need  not be treated for sentencing purposes as lightly  as "disorderly conduct," "fish and game  violations" and "insufficient funds check." See  U.S.S.G. sec. 4A1.2(c)(1). Staples' conviction  for discharging a weapon was in fact more serious  than disturbing the peace and was properly  included in his criminal history.

2.  The Suspended License Conviction

15
Section 4A1.2(c)(1) does not count driving while  license suspended as an offense for purposes of  the criminal history calculation, unless the  defendant was sentenced to a year probation or  imprisonment of thirty days. The Guidelines  indicate that to count as a sentence of  imprisonment, the defendant must have "actually  served a period of imprisonment on such  sentence." U.S.S.G. sec. 4A1.2 application note  2.


16
Staples received a two-level increase related to  his conviction in 1997 for driving on a suspended  license, which had been suspended after his  conviction for driving under the influence of  drugs. In 1998, Staples was serving a 250-day  sentence for a probation violation related to a  domestic battery conviction. After his release  from jail on the probation violation, he pleaded  guilty to the suspended license charge and was  sentenced to 250 days in jail with credit for  time served on the probation violation charge.  Staples now claims that the 250-day sentence on  the license conviction should not count because  he was sentenced to "time previously served" and  did not actually serve any of his sentence for  driving on a suspended license. The question is  whether time "actually served" includes "time  previously served." We review this question de  novo. See McClanahan, 136 F.3d at 1149.


17
The plain language of sec. 4A1.2(c)(1) indicates  that a conviction is counted if the "sentence was  . . . a term of imprisonment of at least 30  days." See U.S.S.G. sec. 4A1.2(c)(1). According  to the PSR, Staples' sentence was "250 days jail,  $300 fine and costs." Neither the Guidelines nor  Staples' sentence make a distinction as to how or  when the defendant must serve the sentence, such  as receiving time off for good behavior,  surrendering voluntarily at some future date or  getting credit for time spent awaiting trial. The  simple meaning of the Guidelines language is to  count any sentence "of at least 30 days," and  this section is unconcerned with how or when the  sentence "of at least 30 days" is served so long  as it is a "term of imprisonment." The sentencing  judge may have agreed that Staples had already  served the required time and therefore released  him, but the judgment that he serve 250 days in  jail stood.


18
Staples looks to the application notes for a  definition of "sentence of imprisonment," which  he finds in Application Note 2. But as the  government points out, that note specifically  references two Guidelines sections dealing with  suspended sentences, see U.S.S.G. sec.  4A1.2(a)(3), (b)(2), which in this situation are  very different from a sentence crediting time  already served. With a suspended sentence, the  offender may never spend a day in jail. The  sentence hangs over his head as a way to ensure  compliance with the terms of probation or other  court orders. Credit for time served evinces the  court's determination that the offender must  spend some time in jail but has already served  that time, either awaiting trial or on some other  offense. It is a way to avoid excessive or  duplicative punishment but does not reflect the  court's determination that this offense is so  minor that no jail time is warranted.


19
In United States v. Atkinson, 15 F.3d 715, 721  (7th Cir. 1994), we considered whether a sentence  of time served awaiting trial counted as time  "actually served." The defendant had been  sentenced to fouryears, but the judge suspended  the term except for the seventy-seven days  already served. We held that the "plain language  of the Sentencing Guidelines" directed that the  seventy-seven days counted as the applicable  prison term, but the suspended term did not. Id.  Atkinson was slightly different from this case in  that the defendant here spent the "time served"  on a different charge, but the principle is the  same: Time served is real time and time suspended  is not.


20
Staples looks to the Fourth Circuit case United  States v. Stewart, 49 F.3d 121, 124 (4th Cir.  1995), for the proposition that time served is  not an imposed sentence. Stewart however is  inapplicable. In that case, the defendant had  spent twenty-four days in jail awaiting a parole  revocation hearing, but his parole ultimately was  not revoked and he was not reincarcerated. The  twenty-four days were not punishment and did not  reflect the seriousness of his offense, since no  offense was found. It was, like pretrial  detention, an administrative detention to ensure  that the offender showed up for court. The Fourth  Circuit held that Stewart's time served could not  be counted as a sentence of imprisonment because  it was "administrative in nature" and not  punishment. Id. at 125. The court in United  States v. Latimer, 991 F.2d 1509, 1517 (9th Cir.  1993), likewise refused to count as incarceration  the time spent awaiting a parole revocation  hearing and placement in a community treatment  center, because this was not a reflection of the  seriousness of a crime in the way that  imprisonment is. Had Staples been held without  bail while awaiting trial, that time could not be  counted as a sentence of imprisonment, but being  given credit for time served on another offense  is a different story. It reflects the seriousness  of the offense and appropriately should be  counted as a qualifying term of imprisonment for  purposes of sec. 4A1.2(c)(1).

III.  Conclusion

21
In sentencing Staples and Brown, the district  court correctly assessed the seriousness of their  weapons conviction in 1995 and enhanced their  criminal histories by one point. Furthermore,  Staples cannot now complain "time served" for a  past offense somehow means something other than  he served time for a past offense. Accordingly,  we AFFIRM the sentences of both Staples and Brown.

