952 F.3d 429
3rd Cir.2020Background
- In December 2017 a loaded handgun at Tremayne James’s home discharged, injuring a child; James pleaded guilty to 18 U.S.C. § 922(g)(1).
- The Presentence Report assigned James a criminal-history score of 10, including two points for a 2011 Pennsylvania conviction for "loitering and prowling at night time" (18 Pa. Cons. Stat. § 5506).
- James’s 2011 sentence ultimately included imprisonment (after probation revocations), producing the two criminal-history points that raised his Guidelines range.
- Defense counsel objected under U.S.S.G. § 4A1.2(c)(2), which excludes sentences for "[l]oitering" and offenses similar to it from criminal-history calculations. The District Court overruled the objection and sentenced James at the top of the Guidelines range.
- The Third Circuit reviewed plenarily the legal question whether § 5506 is "loitering" under § 4A1.2(c)(2) or "similar to" such offenses and affirmed the District Court.
Issues
| Issue | James' Argument | Government's Argument | Held |
|---|---|---|---|
| Scope of "loitering" in U.S.S.G. § 4A1.2(c)(2) | "Loitering" means mere wandering/remaining (loitering simpliciter) and excludes statutes that require more | The Guidelines exclude only offenses that are functionally equivalent to traditional loitering; statutes requiring a purpose to commit wrongdoing fall outside | Court defined loitering simpliciter as encompassing offenses that do not require a purpose to commit unlawful conduct; offenses requiring such a purpose are "loitering plus" |
| Whether PA § 5506 is loitering simpliciter | § 5506 is equivalent to the MPC loitering provision and lacks a purpose-to-commit-unlawful-act requirement | Pennsylvania courts construe "maliciously" in § 5506 to require an affirmative evil or purpose to injure, distinguishing it from MPC-style loitering | Court held § 5506 is not loitering simpliciter because state precedent reads a purposeful mens rea into the statute |
| Whether § 5506 is "similar to" loitering simpliciter (so sentence excluded) | Even if text differs, § 5506 is similar in elements and purpose and thus should be excluded under the "similar to" language | Mens rea, higher maximum punishment, and the sentence actually imposed distinguish § 5506 and counsel counting it | Applying the § 4A1.2 cmt. 12(A) factors, the Court held § 5506 is not sufficiently similar; the sentence is countable |
| Sentencing consequence for James | Exclusion would lower James’s criminal-history category and reduce Guidelines range | Counting the two points was proper and the District Court’s sentence should be affirmed | Court affirmed the District Court; the two points for § 5506 remain in James’s criminal-history score and the sentence is affirmed |
Key Cases Cited
- United States v. Hines, 628 F.3d 101 (3d Cir. 2010) (distinguishing "loitering simpliciter" from "loitering plus")
- Papachristou v. City of Jacksonville, 405 U.S. 156 (1972) (invalidating vague vagrancy/loitering law)
- Kolender v. Lawson, 461 U.S. 352 (1983) (holding loitering/stop-and-identify law impermissibly vague)
- Commonwealth v. Duncan, 321 A.2d 917 (Pa. 1974) (Pennsylvania Supreme Court construing § 5506 to require an "evil intent" or purpose to injure)
- Village of Hoffman Estates v. Flipside, 455 U.S. 489 (1982) (mens rea can mitigate vagueness concerns)
- Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177 (2004) (context on stop-and-identify statutes and public-order regulation)
- Wis. Cent. Ltd. v. United States, 138 S. Ct. 2067 (2018) (textualist instruction to use ordinary meaning at time of enactment)