United States v. Lock, Alfred , 466 F.3d 594 ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-1423
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ALFRED LOCK,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 05-CR-128—Rudolph T. Randa, Chief Judge.
____________
ARGUED SEPTEMBER 15, 2006—DECIDED OCTOBER 20, 2006
____________
Before FLAUM, Chief Judge, and KANNE and SYKES,
Circuit Judges.
FLAUM, Chief Judge. In October 2005, defendant-appel-
lant Alfred Lock pled guilty to one count of conspiracy to
distribute crack cocaine. In January 2006, the district court
sentenced Lock to 84 months’ imprisonment, based, in part,
on an eight point criminal history score. The district court
assigned two criminal history points because of Lock’s two
Milwaukee Municipal Court convictions for “Loitering-
Illegal Drug Activity.” Lock appeals the inclusion of those
convictions in his criminal history score. For reasons set
forth in this opinion, we vacate the district court’s decision
to include Lock’s Loitering-Illegal Drug Activity convictions
2 No. 06-1423
in his criminal history calculation and remand the case for
re-sentencing.
I. BACKGROUND
In October 2005, Alfred Lock pled guilty to conspiring to
distribute crack cocaine. Between the time Lock entered
a guilty plea and his sentencing hearing, the probation
office created a pre-sentencing report (“PSR”) that outlined
Lock’s criminal history. The district court adopted the PSR
and, based on the report’s recommendations, sentenced
Lock to 84 months in prison. The PSR adopted by the court
calculated Lock’s criminal history at level IV, based upon
eight criminal history points.1 Included in that calculation
were two Milwaukee Municipal Court convictions for
“Loitering-Illegal Drug Activity,” which accounted for two
of the eight points. Lock had been sentenced to fines of $500
and $640 for those municipal convictions.
Milwaukee’s municipal code contains several different
classes of loitering. See, e.g., MILWAUKEE, WIS., CODE § 106-
23 (2006) (Loitering of Minors); § 106-31 (Loitering or
Prowling); § 106-35 (Loitering-Soliciting Prostitutes); and
§ 106-35.6 (Loitering-Illegal Drug Activity). The code
section under which Lock was convicted states:
[a]ny person who loiters or drives in any public place in
a manner and under circumstances manifesting the
1
Although Lock’s calculated offense level was 27, with a criminal
history category of IV, the sentencing judge adjusted the offense
level down two levels based on the defendant’s extraordinary
physical impairment, i.e., paraplegia. With an adjusted offense
level of 25, the guidelines advised a sentence in the range of 84 to
105 months. Had the court not counted the “Loitering-Illegal Drug
Activity” convictions, Lock’s criminal history category would have
been III and the advisory guidelines range would have been 70 to
87 months.
No. 06-1423 3
purpose of inducing, enticing, soliciting or procuring
another to engage in illegal drug activity shall forfeit
not less than $500 nor more than $5,000 or upon
default of payment be imprisoned for not more than
90 days.
Id. In order to guide law enforcement, the ordinance
highlights various circumstances that a police officer may
consider to determine whether an individual intends
to engage in illegal drug activity. Those circumstances
include frequenting “a known area of illegal drug activity;”2
beckoning to stop or engaging in conversation “known drug
sellers or purchasers;”3 stopping a motor vehicle and
selling/purchasing or attempting to sell/purchase illegal
drugs; transferring small objects or packages for currency
in a furtive fashion; and fleeing upon the appearance of a
police officer.4 § 106-35.6(2). The ordinance cautions that
“[n]o arrest may be made for a violation . . . unless the
arresting officer first affords the person an opportunity to
explain the person’s presence and conduct, unless flight . . .
or other circumstances make it impracticable to afford such
an opportunity.” Id. Moreover, “no one shall be convicted of
2
A “known area of illegal drug activity” is defined as “a public
place where, within 3 years previous to the date of arrest . . .
within the collective knowledge of the police department, a person
has been arrested for a violation which led to a conviction in any
. . . court of an offense involving illegal drug activity.” § 106-35.6
(1)(b). Although this language is quite broad, there is no reason to
consider the validity of the underlying ordinance at this time.
3
A known drug seller or purchaser is essentially any person who
has been convicted of any drug offense within the past three
years. See § 106-35.6 (1)(c).
4
The facts underlying Lock’s municipal conviction are unknown.
Lock recalls only that he was standing around with some people
when he was ticketed. The record contains neither corrobora-
tion nor contradiction of this recollection.
4 No. 06-1423
violating this section if it appears at trial that the explana-
tion given was true and disclosed a lawful purpose.” Id. The
Loitering-Illegal Drug Activity ordinance does not specifi-
cally define “loitering,” but presumably the term is used
consistently throughout Milwaukee’s various loitering
ordinances.
After the probation office filed a PSR that included the
two Loitering-Illegal Drug Activity convictions in its
criminal history calculation, Lock filed a written objection.
He argued that the lack of specifics and documentation
regarding the convictions warranted their exclusion from
his criminal history calculation. Because the municipal
convictions dated back to 1995, the city had destroyed the
records associated with them pursuant to municipal policy.
When prompted by the district court to elaborate on his
objection, Lock noted that the United States Sentencing
Guidelines specifically exclude convictions for loitering
and prior similar offenses. U.S. SENTENCING GUIDELINES
MANUAL § 4A1.2(c)(2) (2004) (hereinafter “U.S.S.G.”).
The Sentencing Guidelines provide that sentences for
misdemeanor and petty offenses are generally included in
a defendant’s criminal history calculation. U.S.S.G.
§ 4A1.2(c). Despite the general tendency towards inclusion,
however, the guidelines list a group of offenses that should
never be counted in a criminal history calculation:
Sentences for the following prior offenses and offenses
similar to them, by whatever name they are known, are
never counted:
Hitchhiking
Juvenile status offenses and truancy
Loitering
Minor traffic infractions (e.g., speeding)
Public intoxication
Vagrancy.
No. 06-1423 5
U.S.S.G. § 4A1.2(c)(2) (emphasis added). The Guidelines
mandate that loitering convictions should never be
counted as a part of a defendant’s criminal history score.
Nonetheless, the district court opted to include Lock’s
Loitering-Illegal Drug Activity convictions in his crim-
inal history score, reasoning that the illegal drug activity
element of the offenses distinguished them from ordinary
loitering offenses.
II. DISCUSSION
A. Standard of Review
This Court reviews a district court’s interpretation and
application of the Sentencing Guidelines de novo. See
United States v. Ellis, 440 F.3d 434, 436 (7th Cir. 2006).
Despite an initial dispute regarding the applicable standard
of review, the parties have since agreed that the district
court’s application of the Guidelines in this case should be
reviewed de novo.5 At the time of sentencing, the district
court recognized that this case presented a close question of
statutory construction, and that this Court may wish to
address it.6 We do so now, reviewing the district court’s
5
At first, the parties disputed whether Lock preserved his claim
that U.S.S.G. § 4A1.2(c)(2) prohibits the inclusion of Loitering-
Illegal Drug Activity convictions in a defendant’s criminal history
score. Although Lock did not cite that particular section of the
Sentencing Guidelines in his written objections, he orally raised
the claim before the sentencing court, so it was not forfeited. See,
e.g., United States v. Ortiz, 431 F.3d 1035, 1038 (7th Cir. 2005)
(recognizing that the Seventh Circuit construes waiver prin-
ciples liberally in favor of the defendant). At argument, the
government conceded that Lock had not forfeited his claim.
6
The district court remarked:
(continued...)
6 No. 06-1423
application of the guidelines de novo.
B. Inclusion of “Loitering-Illegal Drug Activity”
Conviction in Criminal History Score
Although the issue of how and whether to count “loitering
plus” offenses in a defendant’s criminal history score has
arisen with some frequency in the Eastern District
of Wisconsin, it is an issue of first impression in this Court.
We therefore consider the plain language of the guidelines,
the terms of the ordinance, the available case law, and the
purpose of anti-loitering ordinances in order to determine
whether Lock’s convictions were properly included in his
criminal history.
The Supreme Court has instructed that in “cases involv-
ing statutory construction, our starting point must be the
language employed by Congress, and we assume that the
legislative purpose is expressed by the ordinary mean-
ing of the words used.” Am. Tobacco Co. v. Patterson,
456 U.S. 63, 68 (1982) (citations and quotations omitted).
Absent a clearly expressed legislative intent to the contrary,
the plain language should be conclusive. Id. In this case, the
fact that the Milwaukee ordinance violation is primarily
deemed “loitering” carries great weight. After all, in
6
(...continued)
I think the ready response to [the argument that the convic-
tions should be excluded], and the one that the Court would
accept at this point, although it’s—could be a subject of
Seventh Circuit consideration, is that when I read (1) of that
section which deals with including ordinances that are also
criminal offenses under State law, it could be argued in turn
that loitering with drug related activity is something that
would fall under a similar State law offense.
Transcript of Sentencing Hearing at 10-11, United States v. Lock,
(No. 05-CR-128) (E.D. Wis. 2005).
No. 06-1423 7
calculating a defendant’s criminal history score, the Sen-
tencing Guidelines exclude certain offenses “by whatever
name they are known.” U.S.S.G. § 4A1.2(c)(2). Loitering by
any other name is still loitering, but the relevant inquiry is
whether Loitering-Illegal Drug Activity constitutes a
different and therefore distinct offense.
Black’s Law Dictionary defines loitering as remaining “in
a certain place . . . for no apparent reason.” BLACK’S LAW
DICTIONARY 953 (7th ed. 1999). On the other hand, the
Model Penal Code’s definition refers to behavior that is “not
usual for law abiding individuals.” MODEL PENAL CODE
§ 250.6 (2001). While the first definition of loitering denotes
a lack of purpose, characterizing the activity as at least
neutral if not entirely innocent, the second definition
suggests that loiterers may harbor illicit motives. The first
definition therefore supports the government’s argument
that the illegal drug activity component of Lock’s conviction
differentiates it from loitering as traditionally conceived. On
the other hand, the Model Penal Code’s definition, by
recognizing that loitering includes suspicious activity and
possibly criminal intent, supports Lock’s claim that
Loitering-Illegal Drug Activity is the same as or similar to
“simple loitering.” Given these competing definitions, and
absent any definition in the Guidelines, the plain language
does not conclusively resolve whether loitering as used in
U.S.S.G. § 4A1.2(c)(2) encompasses Lock’s municipal
convictions.
Because the plain language of the Guidelines does not
indicate whether “loitering-plus” offenses are different in
kind from “simple loitering,” this Court must independently
determine whether Loitering-Illegal Drug Activity is similar
to the offense excluded by U.S.S.G. § 4A1.2(c)(2). We use a
“common sense” approach in determining the similarity of
offenses. See United States v. Roy, 126 F.3d 953, 954 (7th
Cir. 1997) (holding that marijuana use is not similar to
public intoxication under the Guidelines). Our multi-factor
8 No. 06-1423
approach takes into account all possible factors of similar-
ity, including the punishment imposed, the perceived
seriousness of the offense, the elements of the offense, the
level of culpability, and the indication of recurring criminal
conduct. See United States v. Harris, 325 F.3d 865, 872 (7th
Cir. 2003). To inform its approach, this Court also considers
the language of the Guidelines, and the purpose behind
assessing a defendant’s criminal history. See Roy, 126 F.3d
at 954. The Guidelines factor a defendant’s prior criminal
history into his sentence in an effort to penalize recidivist
behavior, protect the public, and generally deter individuals
from criminal behavior. See 18 U.S.C. § 3553(a) (2003); Roy,
126 F.3d at 954. In order to ferret out those offenses that do
not serve the goals of sentencing, the Guidelines do not
count all misdemeanor sentences in calculating a defen-
dant’s criminal history. Roy, 126 F.3d at 954. In light of the
aforementioned factors, common sense suggests that an
offense primarily deemed “loitering” should be excluded
under the Guidelines, but further inquiry is necessary to
resolve any lingering doubts.
The illegal drug activity component of the Milwaukee
ordinance raises some doubt as to whether the offense
is of the non-serious variety Congress meant to exclude
from criminal history calculations under the Sentencing
Guidelines. The apparent theme of the offenses listed in
U.S.S.G. § 4A1.2(c)(2) is that they are relatively minor
infractions like speeding or hitchhiking. Id. The government
argues that Loitering-Illegal Drug Activity is fundamentally
more serious than and different in kind from garden-variety
loitering. Given the relative seriousness of the Milwaukee
ordinance violation, the government urges, the offense is
countable under U.S.S.G. § 4A1.2(c) (1)(B), which permits
the inclusion of municipal ordinance violations that are
similar to the offense of conviction—in this case, conspiracy
to distribute crack cocaine.
No. 06-1423 9
To bolster its argument, the government points to the fact
that the fines for Loitering-Illegal Drug Activity are
significantly higher than those for “Loitering or Prowling,”
suggesting that the former is a more serious offense. See
MILWAUKEE, WIS., CODE § 106-31 (2006) (defining the
offense as loitering or prowling “in a place, at a time, or in a
manner not usual for law-abiding individuals under
circumstances that warrant alarm for the safety of per-
sons or property in the vicinity”). However, the mere
fact that the Milwaukee City Council found one sus-
pected purpose of a loiterer more culpable than another
does not make the offenses dissimilar as a matter of law,
nor does it otherwise weigh against exclusion. After all, the
fines for speeding may be worse than those for hitchhiking,
but both offenses are excluded under the Guidelines.
Moreover, it is the intent of Congress to which this Court
must give effect, and the fines assessed by the city provide
no evidence of congressional intent.
The government also highlights the behaviors outlined in
the ordinance to help police determine whether a purpose
to engage in illegal drug activity exists, arguing that these
enumerated behaviors overlap “hardly at all with ordinary
loitering.” On the contrary, our own examination of the
circumstances outlined in the ordinance reveals that the
ordinance reaches many activities consistent with tradi-
tional notions of loitering. For example, one circumstance
indicative of an illegal drug-related purpose is frequenting
“a known area of illegal drug activity,” defined as any public
place where anyone has committed a drug offense in the
last three years. § 106-35.6(1)(b). For many Milwaukee
residents, standing on any neighborhood street cor-
ner—behavior indistinguishable from ordinary loiter-
ing—could amount to frequenting a known area of illegal
drug activity. In addition, the ordinance considers engaging
“known drug sellers or purchasers in conversation” indica-
tive of an intent to engage in illegal drug activity.
10 No. 06-1423
§ 106-35.6(2). Because known drug sellers or purchasers
include anyone who has been convicted of any drug offense
in the last three years, see § 106-35.6(1)(c), merely standing
around and talking to an ex-convict constitutes culpable
behavior under the ordinance. Again, some Milwaukee
residents may converse with ex-drug offenders in the course
of an ordinary day. While some of the enumerated circum-
stances admittedly are less consistent with traditional
notions of loitering, e.g., furtive transfers of small packages,
we cannot conclude that the Milwaukee ordinance hardly
overlaps with ordinary loitering as the government claims.
Since the language of the Milwaukee ordinance is not
entirely consistent with traditional notions of loitering,
we next turn to cases that have asked whether “loitering
plus” offenses warrant exclusion under the Guidelines. Two
circuits have considered this question. Both opinions are
unpublished and they reach different conclusions. The
Second Circuit, in United States v. Paul, 152 F.3d 921 (2d
Cir. 1998), 1998 WL 398808, held that the district court
erred by including two convictions for “Loitering in the First
Degree”7 in a defendant’s criminal history score. The court
recognized that “ ‘Loitering’ is specifically [excluded by]
§ 4A1.2(c)(2).” Id. at *1. Hence, the court reasoned, there
was no need for analogy. Id. Further, the Second Circuit
noted the absence of any “explanatory note to . . . the
Sentencing Guidelines that indicates that certain types of
loitering are not to be exempted from the Criminal History
Category.” Id. The court declined to venture beyond the
plain language of the Guidelines. See id.
In contrast, the Third Circuit went beyond the plain
language and conducted an analysis to determine whether
7
The New York offense of Loitering in the First Degree includes
loitering for the purpose of begging, gambling, soliciting sexual
conduct, or various other illicit purposes. N.Y. PENAL L. § 240.35(2003).
No. 06-1423 11
a “loitering plus” offense is similar to “simple loitering.”
United States v. Harrity, 64 Fed. App’x 335, 336 (3d Cir.
2003). Because the Guidelines offer no explanation of how
to determine whether offenses are similar for purposes
of inclusion, the court referred to its own case law on the
matter. Id. at 337. The Third Circuit had previously held
that offenses are similar if they contain the same elements.
Id. After comparing the “loitering plus” offense at issue to
traditional legal definitions of loitering, the court concluded
that the relevant New Jersey offense differed “sharply from
these definitions,” because the state offense contained an
additional element—the purpose of obtaining or distributing
drugs. Id.
The Third Circuit’s logic was later criticized in a ruling
issued by the Eastern District of Wisconsin. See United
States v. Moore, 288 F. Supp. 2d 955, 957 (E.D. Wis. 2003).
In that case, the district court observed that the manner in
which the Third Circuit framed the issue “led ineluctably to
a conclusion that the offense should be counted.” Id. In
other words, any specification of a loiterer’s purpose, under
the Third Circuit’s analysis, would constitute an additional
element, and, as a result, the offense at issue would not be
similar to “simple loitering.” The district court went on to
say that it was “both unnecessary and improper for the
court to ask whether the offense in question was ‘similar’ to
the listed offense” because the Sentencing Guidelines
“plainly and unambiguously prohibit[ ] the counting of
all loitering convictions—‘by whatever name they are
known .’ ” Id. (citing Paul with approval) (emphasis in
original).
Nonetheless, the district court conducted a similarity
analysis, using our “common sense” test and found that
the Loitering-Illegal Drug Activity offense is not “categori-
cally more serious” than “simple loitering.” Id. at 959-60.
The court then noted that the elements of simple loiter-
ing and the Wisconsin ordinance are identical, “save for the
12 No. 06-1423
defendant’s motive or purpose to loiter,” and held that the
defendant’s convictions for Loitering-Illegal Drug Activity
should not be included in his criminal history. Id. at 960.
In short, no clear consensus has emerged regarding
whether the “loitering-plus” offenses are the same as or
similar to “simple loitering” for purposes of calculating
a defendant’s criminal history. Because the available
case law does not resolve our inquiry, we consider the
purpose served by anti-loitering laws. The Supreme
Court discussed the utility of loitering statutes in City
of Chicago v. Morales, 527 U.S. 41 (1999). In Morales, a
plurality of the Court asserted the controversial proposition
that “the freedom to loiter for innocent purposes is part of
the ‘liberty’ protected by the Due Process Clause of the
Fourteenth Amendment.” Id. at 53. Although the plurality
criticized the Chicago anti-loitering law as “a criminal law
[with] no mens rea requirement,” id. at 55, it also recog-
nized that a number of state courts have “upheld ordinances
that criminalize loitering combined with some other overt
act or evidence of criminal intent.” Id. at 57-58. At the same
time, the plurality noted, state courts were uniformly
invalidating for vagueness “laws that do not join the term
‘loitering’ with a second specific element of the crime.” Id.In other words, the plurality recognized that anti-loitering
laws were not designed to target the merely idle while
noting with approval the existence of “loitering plus”
ordinances.
Justice Scalia, in dissent, lauded anti-loitering laws
as crime prevention tools, observing that gangs attempt-
ing to establish their turf cease their “intimidating and
unlawful behavior” when the police are in sight. Id. at 96.
That is, anti-loitering laws permit police to disperse those
suspected of illegal activities when police cannot catch them
in the act. Justice Thomas added in a separate dissent that
such laws have been used throughout history “to prevent
crime by removing ‘undesirable persons’ from public before
No. 06-1423 13
they have the opportunity to engage in criminal activity.”
Id. at 102. Despite the discord among the justices as to
whether the Constitution protects those who innocently
loiter, all members of the Court seem to agree that anti-
loitering laws are useful for targeting illicit activities. Given
this rationale for enforcing anti-loitering ordinances, it
would seem illogical to differentiate Milwaukee’s ordinance
simply because it specifies the illicit activity it seeks to
prevent.
Morales required states and municipalities to re-examine
their loitering ordinances for constitutional infirmities. In
fact, Milwaukee city officials issued a statement that
the Supreme Court ruling would not affect their laws
because they are “very site-specific and activity-specific.”
See James H. Burnett III, Ruling Unlikely to Affect Milwau-
kee Ordinances, MILWAUKEE J. SENTINEL, Jun. 11, 1999, at
A3. This statement demonstrates that Milwaukee’s own
officials recognized the potential shortcomings of simple
loitering ordinances and that they had already attempted to
cure any defects with their “loitering plus” variations.
Furthermore, the local response underscores the fact that
Morales put Congress on notice that loitering ordinances
target criminal behavior—not just innocent standing
around. Nonetheless, Congress declined to remove loitering
from the list of offenses excluded by U.S.S.G. § 4A1.2(c)(2).
It would be improper for us to do what Congress has
declined to do through its power to legislate, i.e., count
loitering offenses in a defendant’s criminal history.
In sum, given the various indicia of similarity between
the Milwaukee ordinance and the offense excluded by
the Guidelines, as well as the purpose served by anti-
loitering ordinances, the government’s claim that Loitering-
Illegal Drug Activity is not similar to—and is fundamen-
tally more serious than—“simple loitering” must fail. First,
logic tells us that similarly named offenses are in fact
similar. An examination of the specific behaviors targeted
14 No. 06-1423
by the Milwaukee ordinance fails to refute that basic
assumption. In addition, as Morales recognized, anti-
loitering laws were fashioned to combat precisely the type of
behaviors enumerated in the Milwaukee ordin-
ance. Traditionally, these laws empowered the police to
disperse groups gathering in high crime areas before
they could engage in illegal drug activity or other illegal
action. Finally, the specification of a loiterer’s unlawful
purpose in local ordinances can be characterized as a
response to the type of vagueness concerns outlined in
Morales rather than the creation of an entirely new offense.
Creating different types of anti-loitering ordinances puts
citizens on notice of the behavior police are
targeting—whether it be drug dealing, solicitation of
prostitutes, gang turf wars, or prowling; however, it does
not change the fact that the ordinances primarily pro-
hibit loitering. We therefore conclude that the district court
erred in its application of the Sentencing Guidelines, and
that Lock’s convictions for Loitering-Illegal Drug Activity
should be excluded from his criminal history score.
III. CONCLUSION
For the foregoing reasons, we now VACATE the district
court’s decision to include Lock’s Loitering-Illegal Drug
Activity convictions in his criminal history calculation and
REMAND the case for re-sentencing consistent with this
opinion.
No. 06-1423 15
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-20-06