NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 28, 2009
Decided February 6, 2009
Before
WILLIAM J. BAUER, Circuit Judge
KENNETH F. RIPPLE, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 07‐3892
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 05 CR 271
RODNEY JONES, also known as
SPOTTY ROCK, also known as Amy J. St. Eve,
ROADIE, Judge.
Defendant‐Appellant.
O R D E R
Rodney Jones was charged with distributing crack cocaine, 21 U.S.C. § 841(a)(1), after a five‐
year investigation into the drug‐trafficking activities of Mark Clark, a high‐ranking member of
the Gangster Disciples. Jones was one of Clark’s subordinates. Throughout 2004 a confidential
source working with the Drug Enforcement Administration made several purchases of crack
from Jones. Jones pleaded guilty to one count of distributing crack and was sentenced to 10
years, the mandatory minimum.
Jones filed a notice of appeal, but his appointed counsel represents that the case is frivolous
and seeks leave to withdraw under Anders v. California, 386 U.S. 738 (1967). Jones has not
No. 07‐3892 Page 2
accepted this court’s invitation to comment on counsel’s brief. See CIR. R. 51(b). This court’s
review is limited to the potential issues identified in counsel’s facially adequate brief. See United
States v. Schuh, 289 F.3d 968, 973‐74 (7th Cir. 2002). Because Jones does not want his guilty plea
set aside, counsel correctly bypasses discussion of potential issues concerning the voluntariness
of Jones’s plea or the adequacy of the plea colloquy. See United States v. Knox, 287 F.3d 667, 670‐
71 (7th Cir. 2002). The only potential issue counsel considers is whether the district court erred
when it overruled Jones’s objection to his criminal history calculation and found Jones ineligible
for safety‐valve relief from the 10‐year mandatory minimum sentence.
To qualify for safety‐valve relief from a mandatory minimum sentence, a defendant cannot
have more than one criminal history point. 18 U.S.C. § 3553(f)(1); U.S.S.G. § 5C1.2(a)(1). Jones
has four prior convictions: two convictions in 1994 for possession of marijuana, one conviction
in 1995 for manufacturing and delivering cannabis, and one conviction in 2005 for possession
of heroin. Counsel for Jones contemplates, but rejects as frivolous, an argument that the 1995
conviction should have counted for one point and the other three convictions should have been
excluded altogether from his criminal history.
At sentencing, Jones argued that his two prior convictions for possession of marijuana
should not count for criminal history points because, he insisted, these were part of the relevant
conduct for the present offense. Alternatively, Jones argued, the two marijuana possessions
should not count because, in his view, they are analogous to the crimes excluded under U.S.S.G.
§ 4A1.2(c). Jones also argued that his conviction for possession of heroin should be excluded
both because the offense occurred after the transaction in this case and because, he
contradictorily asserted, it too was part of the relevant conduct in the present offense. The
district court disagreed with Jones and counted all four convictions.
Counsel correctly concludes that Jones’s argument that he has only one criminal history
point and thus qualified for safety‐valve relief is frivolous. The Guidelines define a prior
sentence, which is included in a defendant’s criminal history, as “a sentence imposed prior to
sentencing in the instant offense, other than a sentence for conduct that is part of the instant
offense.” U.S.S.G. § 4A1.2 cmt. 1; United States v. Liddell, 492 F.3d 920, 922 (7th Cir. 2007).
Conduct that is part of the instant offense is defined as relevant conduct under § 1B1.3, U.S.S.G.
§ 4A1.2 cmt. n.1, which states that a criminal offense constitutes relevant conduct to another
offense if the two offenses are part of a common scheme or plan, U.S.S.G. § 1B1.3 cmt. n.9;
Hernandez, 330 F.3d at 986‐87. To determine a common scheme or plan, courts consider
significant similarity, regularity, temporal proximity, as well as common victims, accomplices,
purpose, or modus operandi. United States v. Farmer, 543 F.3d 363, 373 (7th Cir. 2008).
No. 07‐3892 Page 3
According to Jones, his three prior convictions were relevant conduct to this case and this
should have been excluded from his criminal history for failing to satisfy the definition of prior
sentence. The one similarity between Jones’s marijuana convictions and his conviction here for
distributing crack—that all three crimes involved drugs—is not enough to show a common plan
or scheme. See United States v. Brown, 209 F.3d 1020, 1024 (7th Cir. 2000). In fact, at sentencing
Jones did not even argue that his marijuana convictions met any of the criteria that might
evidence a common scheme or plan. Jones’s convictions for marijuana possession occurred a
full 10 years before his conviction in this case and did not involve common victims, accomplices,
purpose, or modus operandi. Thus, the two prior convictions were correctly included in his
criminal history calculation because the convictions constitute prior sentences under § 4A1.2(a).
Jones’s alternative argument for excluding his two prior convictions for marijuana
possession is likewise frivolous. Section 4A1.2(c) does not list any offense similar to drug
possession, and no court has held that a prior sentence for marijuana possession can be excluded
from criminal history calculation on the basis of a perceived similarity to an offense listed in
§ 4A1.2(c). See United States v. Jenkins, 989 F.2d 979, 979‐80 (8th Cir. 1993) (holding that
possession of marijuana is not similar to the offenses enumerated in § 4A1.2(c)). Because the
inclusion of Jones’s two prior convictions for marijuana possession brings him above the one
criminal history point required for safety‐valve relief, the court need not consider his conviction
for possession of heroin.
Even supposing, however, that Jones had only one criminal history point, he would
nonetheless be ineligible for safety‐valve relief because the district court found that he did not
provide the government with full and truthful information regarding the crack cocaine
distribution offense and all relevant conduct. 18 U.S.C. § 3553(f)(5); U.S.S.G. § 5C1.2(a)(5). That
finding is reviewed for clear error, United States v. Martinez, 301 F.3d 860, 866 (7th Cir. 2002), and
it would be frivolous to argue that the district court clearly erred where Jones did not even meet
with the government to make a proffer of information.
Accordingly, we grant counsel’s motion to withdraw and dismiss the appeal.