United States v. Hines, 2010 U.S. App. LEXIS 25428

Hines was observed by Newark police placing a handgun into his jacket pocket, then entered a liquor store prior to apprehension.
Officers patted down Hines and recovered a loaded semi-automatic handgun from his pocket.
Hines was indicted in February 2008 for possession of a firearm as a felon (18 U.S.C. § 922(g)(1)).
Before trial, Hines moved for an evidentiary suppression hearing but did not request suppression of any specific item of evidence.
The district court denied the motion to suppress, admitted the handgun, and a jury convicted Hines in April 2009.
At sentencing, the district court applied a Guidelines range of 92–115 months, incorporating four of five NJ § 2C:33-2.1(b) convictions into Hines’s criminal history.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court abused its discretion by denying an evidentiary hearing	Hines	Hines	Affirmed; no abuse of discretion
Whether four NJ § 2C:33-2.1(b) convictions were properly counted in Hines's criminal history	Hines	Hines	Affirmed; convictions not 'similar to' loitering simpliciter under § 4A1.2(c)(2)

Voigt, 89 F.3d 1050 (3d Cir.1996) (suppress motion requires colorable claim and material facts)
Brink, 39 F.3d 419 (3d Cir.1994) (colorable claim requires concrete facts; hearing may be warranted)
Coleman, 149 F.3d 674 (7th Cir.1998) (colorable claim; issues of material fact needed)
Elmore, 108 F.3d 23 (3d Cir.1997) (five-factor similarity test for § 4A1.2(c)(2))
Hardeman, 933 F.2d 278 (5th Cir.1991) (multifactor similarity approach under loitering analysis)
Martinez, 905 F.2d 251 (9th Cir.1990) (loitering broadly defined; context of loitering offenses)
Booker, 71 F.3d 685 (7th Cir.1995) (federal-law interpretation of elements for sentencing)
Morales, 527 U.S. 41 (1999) (loitering and vagueness concerns; Morales limits loitering scope)
Harris v. United States, 536 U.S. 545 (2002) (constitutional changes do not alter statutory meaning)