                           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 execut-
ing 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 contain-
ing 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 shav-
ing 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 ap-
proximately $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 writ-
ten 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 investi-
gation. 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

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, stat-
ing 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


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.
6                                                    No. 04-2447

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 con-
sider the prior conviction only for the purpose of estab-
lishing 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


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.
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 discre-
tion 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

court cannot have a “myopic insistence upon expeditious-
ness 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 prep-
    aration 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 mov-
    ant’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 deter-
mined 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


3
  Mr. Jones’ counsel was aware that Mr. Jones allegedly had
signed the written confession, but he argued at the hearing on the
                                                    (continued...)
No. 04-2447                                                         9

found that Mr. Jones’ counsel had been made aware as early
as March 13, 2002 that Mr. Jones produced a written state-
ment. The court took the view that it was not obliged to
grant another continuance to accommodate defense coun-
sel’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


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).
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 incon-
venience 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

  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


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...)
12                                                   No. 04-2447

to admit evidence under Rule 404(b) for an abuse of discre-
tion; we ask whether:
      (1) the evidence is directed toward establishing a matter
      in issue other than the defendant’s propensity to com-
      mit 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


5
    (...continued)
       tent, preparation, plan, knowledge, identity, or absence of
       mistake or accident . . . .
No. 04-2447                                                    13

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


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.
14                                                  No. 04-2447

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 previ-
ous 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.



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).
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) (re-
manding 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 convic-
tions 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 remain-
der 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 rele-
vant to the issue of intent. Mr. Jones’ prior conviction
occurred six years before the charged offense; the district
No. 04-2447                                                        17

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 evi-
dence of prior convictions will be prejudicial; however,
we must determine if it was unfairly prejudicial. See Best, 250


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).
18                                                   No. 04-2447

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 manda-
tory, 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



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).
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 pre-
Booker 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. Addi-
tionally, 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 manda-
tory.
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 imper-
missible 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 underly-
ing 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 vio-
lated 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 acci-
dent”. Jurors are likely to hear this as so much mumbo-
jumbo. 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 tech-
nique (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 infer-
ences. 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 some-
thing 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 con-
victions 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
