United States v. Tremayne James

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______
No. 19-1480
______
UNITED STATES OF AMERICA
v.
TREMAYNE JAMES,
Appellant
______
On Appeal from United States District Court
for the Middle District of Pennsylvania
(D.C. No. 1-18-cr-00144-001)
District Judge: Honorable Sylvia H. Rambo
______
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
October 2, 2019
Before: SHWARTZ, FUENTES and FISHER, Circuit
Judges.
(Filed: March 9, 2020)
Heidi R. Freese, Federal Public Defender
Quin M. Sorenson
Office of Federal Public Defender
100 Chestnut Street, Suite 306
Harrisburg, PA 17101
Counsel for Appellant
David J. Freed, United States Attorney
Scott R. Ford
Office of United States Attorney
228 Walnut Street, P.O. Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108
Counsel for Appellee
______
OPINION OF THE COURT
______
2
FISHER, Circuit Judge.
Under the Federal Sentencing Guidelines, the sentences
imposed for certain prior offenses, and for “offenses similar to
them,” may not be counted in the calculation of an individual’s
criminal-history score. U.S.S.G. § 4A1.2(c). One such offense
is “[l]oitering.” U.S.S.G. § 4A1.2(c)(2). Yet there is (and has
long been) a great variety of loitering provisions in force across
the United States, and it is unclear which of those laws impose
a sentence excludable under the Guidelines. In United States v.
Hines, 628 F.3d 101 (3d Cir. 2010), our Court went some way
toward resolving this difficulty. “Loitering” in § 4A1.2(c)(2),
we said, covers a class of offenses that we called “loitering
simpliciter,” and it does not reach a separate class that we
dubbed “loitering plus.” 628 F.3d at 108. We then held that the
defendant’s sentence under the New Jersey law at issue—
which bars “wander[ing], remain[ing] or prowl[ing] in a public
place with the purpose of unlawfully obtaining or distributing
a controlled dangerous substance,” N.J. Stat. Ann. § 2C:33-
2.1(b)(1) (2019)—was countable because the offense is a form
of loitering plus and, as applied to the defendant, was not
sufficiently “similar to” the offenses that constitute loitering
simpliciter.
The present appeal asks us to decide this same question
for a sentence under Pennsylvania’s anti-loitering statute, 18
Pa. Cons. Stat. § 5506 (2019). Because that law is different
from the New Jersey provision in important respects, we take
this opportunity to clarify our understanding of “[l]oitering” in
§ 4A1.2(c)(2).1 We conclude that loitering simpliciter under
1
A panel of this Court has already confronted, in a not-
precedential opinion, the excludability of a sentence under §
3
the Guidelines encompasses all those offenses that do not
require, either explicitly or by judicial interpretation, a purpose
to engage in some type of unlawful conduct. On this
understanding, we hold that the Pennsylvania law neither is a
form of loitering simpliciter nor, as applied here, is sufficiently
“similar to” the offenses that constitute that category. We
accordingly will affirm the judgment of the District Court.
I
Early one morning in December 2017, Tremayne
James’s ten-year-old nephew found a loaded handgun in a
kitchen drawer at his home. As he was examining it, the gun
fired mistakenly. The bullet travelled through a wall and
wounded the boy’s sister, James’s six-year-old niece, as she
lay in bed. She made a full recovery, but police arrested James
for a violation of 18 U.S.C. § 922(g)(1), which bars possession
of a firearm (that has travelled in interstate commerce) by those
convicted of a crime punishable by more than one year of
incarceration. James pleaded guilty in July 2018, and a
sentencing hearing was scheduled for early the following year.
The Presentence Report recommended a term of
imprisonment of between 84 and 105 months. It assigned
James a criminal history score of 10, including two points for
a 2011 state conviction for “loitering and prowling at night
time.” 18 Pa. Cons. Stat. § 5506 (2019). That offense is a third-
degree misdemeanor, id., which under Pennsylvania law is
punishable by up to one year of incarceration, id. § 1104(3).2
5506. See United States v. Carter, 536 F. App’x 294 (3d Cir.
2013). Although we agree with Carter’s result, we expand
upon its analysis.
2
A subsequent drug offense in 2013 qualified James for the §
922(g)(1) bar.
4
Although James initially received only sixty days’ probation,
subsequent probation violations led to a sentence of
imprisonment for up to nine months. The length of that
sentence triggered the addition of the two points. See U.S.S.G.
§ 4A1.1(b) (providing that two points are to be added for each
prior sentence carrying a maximum term of imprisonment of
between sixty days and one year and one month).
At the sentencing hearing, James’s attorney objected.
The Guidelines, she pointed out, provide that a sentence for
“[l]oitering” and for all offenses “similar to” it should be
excluded from the computation of the criminal-history score.
U.S.S.G. § 4A1.2(c)(2). The two points were significant. A
criminal-history score of 8 would have placed James in
category IV with a prescribed sentence of 70 to 87 months of
imprisonment. U.S.S.G. Ch. 5, Pt. A. James’s criminal-history
score of 10, however, put him in category V, leading to the 84-
to-105-month range ultimately recommended.
The District Court overruled the objection and
sentenced James to 105 months in prison, the top of his
Guidelines range. Given this sentence, the two points for the
loitering offense amount to at least an additional one and a half
years in prison. James timely appealed.
II3
In order to decide whether the Guidelines require the
exclusion of James’s sentence under § 5506, we must begin by
determining the scope of “[l]oitering” in § 4A1.2(c)(2). Hines
called this category “loitering simpliciter” and held that it does
3
The District Court had jurisdiction under 18 U.S.C. § 3231,
and we have jurisdiction under 28 U.S.C. § 1291. Our review
of legal interpretations of the Guidelines is plenary. United
States v. Jones, 740 F.3d 127, 132 (3d Cir. 2014).
5
not include offenses like that of New Jersey’s anti-loitering
statute, which “requires a specific intent—subjectively held
and objectively manifested—in addition to the mere act of
wandering, remaining, or prowling in a public place.” 628 F.3d
at 111; see also id. at 113 (describing loitering simpliciter as
“ha[ving] no specific intent” element). Elsewhere, though,
Hines suggested positive definitions of loitering simpliciter—
that it “is little more than suspiciously remaining in a public
place,” id. at 111-12, and that “[a] person loiters, within the
meaning of the Guidelines, merely by wandering, prowling, or
remaining in a public place,” id. at 109.
These statements should not be understood to describe
loitering simpliciter’s ceiling—to exhaust all the possible
offenses that make up that category. It is “a ‘fundamental
canon of statutory construction’ that words generally should be
‘interpreted as taking their ordinary, contemporary, common
meaning at the time Congress enacted the statute.’” Wis. Cent.
Ltd. v. United States, 138 S. Ct. 2067, 2074 (2018) (alteration
omitted) (quoting Perrin v. United States, 444 U.S. 37, 42
(1979)). This, as Hines said, demands that we give “[l]oitering”
in § 4A1.2(c)(2) the meaning it possessed “when the [United
States Sentencing] Commission drafted [and promulgated] the
Guidelines” in 1987. 628 F.3d at 112. However, it is also a
“cardinal principle of statutory construction . . . to save and not
to destroy” a statute by “giv[ing] effect, if possible, to [its]
every clause and word.” United States v. Menasche, 348 U.S.
528, 538-39 (1955) (citations omitted). The Guidelines,
therefore, must be construed as having incorporated, at the very
least, the minimally constitutionally permissible form of a
loitering offense, as that floor was understood at the time of
their adoption. A review of the relevant history in turn leads to
the conclusion that “[l]oitering” under the Guidelines
encompasses more than offenses that simply criminalize
6
wandering, prowling, or remaining in a public place. It
includes all those offenses, even those with a mens rea
element, that do not require of their violator a purpose to
engage in some form of unlawful conduct.
A
By the late 1980s, loitering and vagrancy laws in the
United States had changed significantly from those in force
only three decades earlier. A commonly noted feature of the
earlier laws, as we suggested in Hines, was that they
criminalized a person’s condition or status alone, eschewing
the traditional requirements of a mens rea and an actus reus.
As one commentator put it, the offenses were “defined in terms
of being rather than in terms of acting.” Forrest W. Lacey,
Vagrancy and Other Crimes of Personal Condition, 66 Harv.
L. Rev. 1203, 1204 (1953); see, e.g., Edelman v. California,
344 U.S. 357 (1953) (analyzing Cal. Penal Code § 647(5)
(Chase 1947), which bluntly declared that “[e]very idle, or
lewd, or dissolute person[] . . . [i]s a vagrant, and is punishable”
by fine and imprisonment); Soles v. City of Vidalia, 90 S.E.2d
249, 251 (Ga. Ct. App. 1955) (confronting a Georgia city
ordinance that made it “unlawful for any person to
idle, loiter or loaf upon any of the streets, sidewalks, alleys,
lanes, parks or squares of [the] City of Vidalia”).
Laws such as these served predominantly to “permit
wider police discretion in [the] arrest of persons suspected of
having committed or of intending to commit a crime.” Note,
Use of Vagrancy-Type Laws for Arrest and Detention of
Suspicious Persons, 59 Yale L.J. 1351, 1352 (1950). They
provided police a default legal basis to make an arrest where
evidence was otherwise lacking. See Caleb Foote, Vagrancy-
Type Law and Its Administration, 104 U. Pa. L. Rev. 603, 614-
15 (1956). As a result, they invited selective enforcement by
7
police officers, judges, and juries, with the burden commonly
falling on disfavored racial and social groups. See Risa
Goluboff, Vagrant Nation: Police Power, Constitutional
Change, and the Making of the 1960s, at 15-20, 115-27 (2016).
That reality, however, also brought the early loitering
and vagrancy laws under sustained legal attack. These
challenges came to emphasize, in addition to other arguments,
two principles of the Supreme Court’s inchoate void-for-
vagueness doctrine: that the laws either failed to provide
ordinary persons adequate notice of the prohibited conduct4 or
permitted the arbitrary exercise of enforcement discretion.5 See
id. at 140-42, 247; Anthony G. Amsterdam, Note, The Void-
for-Vagueness Doctrine in the Supreme Court, 109 U. Pa. L.
Rev. 67, 76 (1960). Over time, this line of attack proved
remarkably successful; by the late 1960s, increasing numbers
of federal courts were invoking these principles to strike down
vagrancy and loitering laws. See Goluboff, supra, at 253-57.
The movement culminated in Papachristou v. City of
Jacksonville, 405 U.S. 156 (1972). There, the Supreme Court
invalidated, on these same two grounds, a Florida city
4
See, e.g., Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939)
(“No one may be required at peril of life, liberty or property to
speculate as to the meaning of penal statutes. All are entitled to
be informed as to what the State commands or forbids.”).
5
See, e.g., Thornhill v. Alabama, 310 U.S. 88, 97-98 (1940);
(observing that “a penal statute . . . which does not aim
specifically at evils within the allowable area of State control”
“readily lends itself to harsh and discriminatory enforcement
by local prosecuting officials”); Herndon v. Lowry, 301 U.S.
242, 263-64 (1937) (“The statute, as construed and applied,
amounts merely to a dragnet . . . . No reasonably ascertainable
standard of guilt is prescribed.”).
8
ordinance that criminalized those who “wander[] or stroll[]
around from place to place without any lawful purpose or
object.” 405 U.S. at 156 n.1. Just over a decade later, the Court
reaffirmed this doctrine, declaring unconstitutional a
California statute that, as interpreted by the state appellate
court, required all persons “[w]ho loiter[] or wander[] upon the
streets or from place to place without apparent reason or
business” to provide a “credible and reliable” identification of
themselves when asked to do so by a police officer. Kolender
v. Lawson, 461 U.S. 352, 353 n.1, 355-56 (1983). The trouble
with the statute, the Court emphasized, was that it “vest[ed]
virtually complete discretion in the hands of the police to
determine whether the suspect has satisfied the statute.” Id. at
358.
B
It was in this context that the newly formed federal
Sentencing Commission in the mid-1980s included
“[l]oitering” among the offenses whose sentence should be
excluded from a defendant’s criminal-history calculation. The
vagrancy-law revolution had created a complex doctrinal
landscape. Although hardly uniform before Papachristou,
loitering laws grew increasingly diverse after that decision as
state and local jurisdictions enacted provisions of greater
specificity, and as defendants challenged existing laws on
constitutional grounds. For our purposes here, we can identify
two general categories of these offenses. Only the latter, we
conclude, constitutes “[l]oitering” under § 4A1.2(c)(2).
1
The first category comprises those laws that either
explicitly require a purpose to engage in some type of unlawful
conduct (such as prostitution or drug trafficking) or have been
authoritatively interpreted to possess such a scienter
9
requirement. By 1987, it was well established that a mens rea
element could at least mitigate vagueness concerns. See, e.g.,
Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc.,
455 U.S. 489, 499 & n.14 (1982); Colautti v. Franklin, 439
U.S. 379, 395 (1979). Most importantly, with regard to
vagrancy and loitering laws, Papachristou suggested that the
requirement of “a specific intent to commit an unlawful act”
could address the concern over lack of notice. 405 U.S. at 163;
see also Screws v. United States, 325 U.S. 91, 102 (1945)
(plurality opinion). As a result, in the years after Papachristou
and Kolender, courts overwhelmingly upheld against
constitutional challenge laws that made it illegal to loiter for
the purpose of engaging in unlawful conduct.6 Some courts
also interpreted loitering laws to possess such a mens rea
requirement in order to avoid declaring them unconstitutional.7
2
The second category includes not only the sort of
offenses invalidated in Papachristou and Kolender—which of
course persisted until challenged8—but also offenses of greater
6
See, e.g., Short v. City of Birmingham, 393 So. 2d 518, 522
(Ala. Crim. App. 1981); State ex rel. Williams v. City Court of
Tucson, 520 P.2d 1166, 1170 (Ariz. Ct. App. 1974); People v.
Superior Court, 758 P.2d 1046, 1055-56 (Cal. 1988) (en banc);
City of Seattle v. Slack, 784 P.2d 494, 497 (Wash. 1989) (en
banc); City of Milwaukee v. Wilson, 291 N.W.2d 452, 457
(Wis. 1980). But see People v. Gibson, 521 P.2d 774, 775
(Colo. 1974) (en banc).
7
See, e.g., State v. Evans, 326 S.E.2d 303, 307 (N.C. Ct. App.
1985); City of Tacoma v. Luvene, 827 P.2d 1374, 1383 (Wash.
1992) (en banc).
8
Both shortly before and after Papachristou, courts commonly
declared unconstitutional pure status offenses, such as those
10
specificity regarding the conduct they prohibited and the
grounds for arrest, though nevertheless falling short of
requiring a purpose to engage in unlawful conduct. In general,
the laws of this latter group possessed two features. First, they
described a circumstance-based offense, where conviction
depended upon the existence of certain objective and often
enumerated conditions. One especially common version, for
example, penalized public loitering “in a manner [and/or]
under circumstances manifesting the purpose” of engaging in
a specified unlawful act, usually either prostitution or drug
trafficking. See, e.g., Brown v. Municipality of Anchorage, 584
P.2d 35, 36 (Alaska 1978); City of Akron v. Rowland, 618
N.E.2d 138, 143 (Ohio 1993). The law would then provide a
conjunctive or (more often) disjunctive list of circumstances
“which may be considered in determining whether” such a
purpose is manifest. See, e.g., Coleman v. City of Richmond,
364 S.E.2d 239, 242 (Va. Ct. App. 1988). Second, the laws also
frequently possessed a “stop and identify” element, preventing
arrest until after the suspect had the opportunity to explain his
or her conduct—with varying standards for whether the
explanation was acceptable—and barring conviction if the
explanation was true and the conduct lawful. See, e.g., Wyche
v. State, 619 So. 2d 231, 233 n.2 (Fla. 1993); Lambert v. City of
Atlanta, 250 S.E.2d 456, 457 (Ga. 1978); see also Hiibel v.
Sixth Judicial Dist. Court, 542 U.S. 177, 183-84 (2004)
(describing the relation of stop-and-identify statutes to
traditional vagrancy and loitering laws).
that criminalized loitering in a specified place. See, e.g., People
ex rel. C.M., 630 P.2d 593, 597 (Colo. 1981) (en banc); Bullock
v. City of Dallas, 281 S.E.2d 613, 614 (Ga. 1981); State v.
Grahovac, 480 P.2d 148, 151 (Haw. 1971); State v. Stilley, 416
So. 2d 928, 929 (La. 1982).
11
State and federal courts divided on whether this sort of
loitering offense was unconstitutional. Laws containing one or
both of these features were occasionally upheld,9 but were also
often invalidated on various grounds.10 An exception to this
general pattern was the loitering provision of the Model Penal
Code (MPC), which was adopted in several states and largely
sustained against constitutional challenge.11 It contains both of
the features described above: objective circumstances “which
may be considered in determining whether . . . alarm [for the
safety of persons or property] is warranted”; and a requirement
that a person be allowed “to identify himself and explain his
9
See, e.g., Lambert, 250 S.E.2d at 457 (rejecting due process
and equal protection attacks but upholding the challenge on the
basis of the Georgia Constitution’s uniformity clause); City of
South Bend v. Bowman, 434 N.E.2d 104, 107 (Ind. Ct. App.
1982); People v. Smith, 378 N.E.2d 1032, 1035 (N.Y. 1978);
In re D., 557 P.2d 687, 690 (Or. Ct. App. 1976).
10
See, e.g., Johnson v. Carson, 569 F. Supp. 974, 978 (M.D.
Fla. 1983); Brown, 584 P.2d at 37; Wyche, 619 So. 2d at 234;
Christian v. City of Kansas City, 710 S.W.2d 11, 13 (Mo. Ct.
App. 1986); People v. Bright, 520 N.E.2d 1355, 1360 (N.Y.
1988); Rowland, 618 N.E.2d at 145; Profit v. City of Tulsa, 617
P.2d 250, 251 (Okla. Crim. App. 1980); Coleman, 364 S.E.2d
at 243-44; City of Bellevue v. Miller, 536 P.2d 603, 607 (Wash.
1975) (en banc).
11
See Watts v. State, 463 So. 2d 205, 207 (Fla. 1985); Bell v.
State, 313 S.E.2d 678, 681 (Ga. 1984); City of Milwaukee v.
Nelson, 439 N.W.2d 562, 568 (Wis. 1989). Notably, however,
some courts declared city ordinances patterned after the MPC
provision unconstitutional in the wake of Kolender. See Fields
v. City of Omaha, 810 F.2d 830, 833-34 (8th Cir. 1987); State
v. Bitt, 798 P.2d 43 (Idaho 1990).
12
presence and conduct” before an arrest can be made. Model
Penal Code § 250.6 (Am. Law Inst. 2018).
“Loitering” in § 4A1.2(c)(2) of the Guidelines is best
read to encompass this second category of loitering offenses—
all those that do not require, either explicitly or by judicial
interpretation, a purpose to engage in some type of unlawful
conduct. An offense properly called loitering simpliciter may
therefore still possess a mens rea element, provided that
element does not amount to a requirement of a conscious object
to commit an unlawful act. Because loitering in 1987 was a
diverse offense, and the line between constitutionality and
unconstitutionality varied across jurisdictions, loitering
simpliciter is most aptly defined in this negative manner. In
order to give effect to the statutory text, and to lend, as far as
possible, “certainty and fairness” to courts’ application of §
4A1.2(c)(2) in sentencing proceedings, see Hines, 628 F.3d at
109, this is the appropriate standard to mark the difference
between loitering simpliciter and loitering plus.
III
We now turn to whether the offense defined in § 5506
is “[l]oitering” under § 4A1.2(c)(2) of the Guidelines. The
Pennsylvania statute provides: “Whoever at night time
maliciously loiters or maliciously prowls around a dwelling
house or any other place used wholly or in part for living or
dwelling purposes, belonging to or occupied by another, is
guilty of a misdemeanor of the third degree.” 18 Pa. Cons. Stat.
§ 5506 (2019). James contends that the offense described here
constitutes loitering simpliciter because it is essentially
equivalent to that of the MPC provision. He emphasizes their
mens rea elements in particular: that “maliciously” amounts at
most to a general-intent requirement, on a par with the MPC’s
provision of loitering “in a manner not usual for law-abiding
13
individuals.” Model Penal Code § 250.6. We cannot accept this
argument for two reasons.
First, although the presence of the term “malice” in §
5506 might on an independent inquiry have led to a different
conclusion, Pennsylvania courts have construed the statute to
require an affirmative purpose to commit an unlawful act.
James is correct that malice in its traditional sense
encompasses more than such a mental state. A person could
commit malicious mischief, for example, simply “out of a spirit
of wanton cruelty.” 4 William Blackstone, Commentaries
*243. And in the homicide context, Pennsylvania courts have
long said that the term “comprehends not only a particular ill-
will, but every case where there is wickedness of disposition,
hardness of heart, cruelty, recklessness of consequences, and a
mind regardless of social duty, although a particular person
may not be intended to be injured.” Commonwealth v. Drum,
58 Pa. 9, 15 (1868); see, e.g., Commonwealth v. Green, 347
A.2d 682, 686 (Pa. 1975); Commonwealth v. Seibert, 622 A.2d
361, 364 (Pa. Super. Ct. 1993); see also Rollin M. Perkins &
Ronald N. Boyce, Criminal Law 857-59 (3d ed. 1982).
Yet Pennsylvania courts have interpreted “maliciously”
in § 5506 to require a mental state higher than gross
recklessness or even knowledge that one’s conduct will cause
a particular result. In Commonwealth v. Duncan, 321 A.2d 917
(Pa. 1974), the Pennsylvania Supreme Court upheld the statute
against a post-Papachristou vagueness challenge by adopting
an interpretation that read the term to require an “evil intent”
and “a formed design of doing mischief to another or a wicked
intention to do an injury to another.” 321 A.2d at 920 (citing
and quoting in part Commonwealth v. McDermott, 11 Pa. D. &
C.2d 601, 604 (1958) (quoting 34 Am. Jur. 682, § 2)).
Similarly, in Commonwealth v. Dial, 285 A.2d 125 (Pa. 1971),
the Court approvingly cited a Superior Court interpretation that
14
defined maliciously “to mean ‘(having) as its purpose injury to
the privacy, person or property of another.’” 285 A.2d at 128
(quoting Commonwealth v. De Wan, 124 A.2d 139, 141 (Pa.
Super. Ct. 1956)). Subsequent Superior Court decisions have
also adopted this interpretation. See Commonwealth v. Sewell,
702 A.2d 570, 571 (Pa. Super. Ct. 1997); Commonwealth v.
Melnyczenko, 619 A.2d 719, 721-22 (Pa. Super. Ct. 1992);
Commonwealth v. Belz, 441 A.2d 410, 411 (Pa. Super. Ct.
1982).
Second, § 5506 is a conspicuous exception to
Pennsylvania’s adoption of the Model Penal Code’s other
public-order provisions. Sections 5501-5510 of title 18 of the
Pennsylvania Consolidated Statutes contain nine offenses
currently in force; of these nine, only the language of the
loitering offense in § 5506 does not substantially match that of
its equivalent offense in the Model Penal Code.12 Compare,
e.g., Model Penal Code § 250.7, with 18 Pa. Cons. Stat. § 5507
(2019). In fact, an early version of the bill that became the
Pennsylvania General Assembly’s Crimes Code Act of 1972
included the MPC’s loitering provision, see S. 455, Gen.
Assemb., 1971 Sess., Printer’s No. 1379, at 157 (Pa. Nov. 29,
1971), but it was later replaced by the existing Pennsylvania
law, see S. 455, Gen. Assemb., 1971 Sess., Printer’s No. 1971,
12
One noteworthy difference between the texts is that where
the MPC uses the mens rea term “purpose,” the Pennsylvania
statutes substitute the word “intent.” Compare Model Penal
Code § 250.1(1), with 18 Pa. Cons. Stat. § 5501 (2019). Under
the MPC, when a material element of an offense involves “the
nature of [a person’s] conduct or a result thereof,” the person
“acts purposely with respect to [that] element” when “it is his
conscious object to engage in conduct of that nature or to cause
such a result.” Model Penal Code § 2.02(2)(a)(i).
15
at 148-49 (Pa. June 29, 1972). Maintenance of § 5506’s
language, amid the substantial adoption of the MPC’s other
public-order offenses, suggests a meaningful difference
between the provisions.
In sum, because Pennsylvania courts have construed §
5506 to contain a mens rea element more akin to the MPC’s
term “purposely,” see Model Penal Code § 2.02(2)(a), than to
any such element that might be read into § 250.6, and because
ordinary textual analysis suggests that the provisions should be
interpreted as materially different, we conclude that § 5506 is
not “[l]oitering” under § 4A1.2(c)(2) of the Guidelines.
IV
Although § 5506 is distinct from loitering simpliciter,
we must still decide whether it is sufficiently “similar to” that
class of offenses to warrant exclusion of James’s sentence from
his criminal-history score. Under the Guidelines, a court
should “never” count sentences for “offenses similar to”
loitering simpliciter, “by whatever name they are known.”
U.S.S.G. § 4A1.2(c)(2). Some courts have highlighted this
language, thinking it supports considering any offense dubbed
“loitering” to be at least similar to the “[l]oitering” offense
contemplated by the Guidelines. See, e.g., United States v.
Lock, 466 F.3d 594, 598-99, 602 (7th Cir. 2006). We disagree.
To us, the proper focus of the inquiry should be not on the name
of the offense, but rather on the features of which it is
composed. We therefore give no weight to the fact that § 5506
is called “Loitering and prowling at night time.”
Our Court employs the multifactor, “common sense”
approach recommended in the commentary to § 4A1.2 for
deciding whether an offense is “similar to” those listed. Hines,
628 F.3d at 110. There are five considerations:
(i) a comparison of punishments imposed for the
16
listed and unlisted offenses; (ii) the perceived
seriousness of the offense as indicated by the
level of punishment; (iii) the elements of the
offense; (iv) the level of culpability involved;
and (v) the degree to which the commission of
the offense indicates a likelihood of recurring
criminal conduct.
U.S.S.G. § 4A1.2 cmt. 12(A). We will address each of these
factors, albeit in a different sequence than that of Hines,
ultimately concluding that James’s sentence was properly
counted in the calculation of his criminal-history score.
A
The first factor calls for a comparison of the offenses’
punishments. Section 5506 is a third-degree misdemeanor,
which under Pennsylvania law is punishable by up to one year
in prison. 18 Pa. Cons. Stat. §§ 106(b)(8), 1104(3) (2019). The
government argues that this maximum possible sentence
weighs in its favor because § 4A1.2(c)(1) provides that a
sentence should be counted if it “was a term of probation of
more than one year or a term of imprisonment of at least thirty
days.” U.S.S.G. § 4A1.2(c)(1). This point is inapposite.
“Loitering” is listed under § 4A1.2(c)(2), not § 4A1.2(c)(1),
and the linguistic identity of the beginning of these
provisions—“Sentences for the following prior offenses and
offenses similar to them, by whatever name they are known,
are . . . .”—leads us to infer a meaningful variation in their
subsequent language. Whereas § 4A1.2(c)(1) lists certain
offenses and describes the type of sentences for those offenses
that should be counted, § 4A1.2(c)(2) lists different offenses,
the sentences for which should “never” be counted. If the
Sentencing Commission, and by extension Congress, wanted
to limit the excludable sentences of the § 4A1.2(c)(2) offenses
17
in the same way as it did for the § 4A1.2(c)(1) offenses, it
would have done so. See Russello v. United States, 464 U.S.
16, 23 (1983) (“Where Congress includes particular language
in one section of a statute but omits it in another section of the
same Act, it is generally presumed that Congress acts
intentionally and purposely in the disparate inclusion or
exclusion.” (alteration and citation omitted)); Antonin Scalia
& Bryan A. Garner, Reading Law: The Interpretation of Legal
Texts 170 (2012) (instructing that “a material variation in terms
suggests a variation in meaning”).
Our comparison of punishments, then, must look to the
maximum sentences for the offenses that constitute loitering
simpliciter. Notably, the MPC’s loitering offense is classified
as a “violation,” Model Penal Code § 250.6, which is defined
as “a noncriminal class of offenses . . . for which only a fine or
other civil penalty is authorized,” Model Penal Code § 1.04
explanatory note. Conviction of a violation does “not give rise
to any disability or legal disadvantage based on conviction of
a criminal offense.” Model Penal Code § 1.04(5). Further,
although both Arkansas and Florida classify their MPC-based
loitering laws as misdemeanors, they punish violations of those
laws by up to thirty and sixty days in prison, respectively. See
Ark. Code Ann. §§ 5-4-401(b)(3), 5-71-213(e) (West 2019);
Fla. Stat. §§ 775.082(4)(b), 856.021(3) (2019). The exception
to this pattern is Georgia, whose MPC-based provision is
punishable by imprisonment of up to a year. See Ga. Code Ann.
§§ 16-1-3(5), (9); 16-11-36(c) (2019).13 In general, then, the
13
Other states with loitering provisions currently in force also
tend to prescribe lighter maximum sentences. In New York, for
example, loitering is punished as either a class B misdemeanor
or a violation, depending upon the nature of the offense and
whether it is a first offense. See N.Y. Penal Law §§ 240.35-.37
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maximum punishment for a conviction under § 5506, a year in
prison, would be at the highest end of the range of punishments
allowable for offenses acknowledged to be forms of loitering
simpliciter.
The third and fourth factors direct our attention to the
elements of the compared offenses, and in particular to the
level of culpability they require. The circumstantial elements
of these offenses are largely similar: § 5506 requires loitering
or prowling “at night time . . . around a dwelling house or any
other place used wholly or in part for living or dwelling
purposes, belonging to or occupied by another,” while MPC §
250.6—which we take here to be paradigmatic—demands
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 persons or property in the
vicinity.” If anything, § 5506 is more specific than the MPC
provision in its predicate circumstances, providing greater
clarity of the interdicted behavior and constraining more fully
police discretion.
Yet, despite this similarity, the scienter requirements
distinguish § 5506 from loitering simpliciter. As noted,
Pennsylvania state courts have interpreted the statute to
prohibit an “intentional act, without legal justification or
excuse, which has as its purpose injury to the privacy, person
or property of another.” De Wan, 124 A.2d at 141. Loitering
traditionally required no mental element at all—it was
effectively a status offense, criminalizing who a person was
(McKinney 2019). Class B misdemeanors are punishable by up
to three months in prison, and violations by up to fifteen days.
N.Y. Penal Law § 70.15(1-a)(e)(2), (4). We take no position
here on whether New York’s loitering laws are either loitering
simpliciter or loitering plus.
19
rather than what he or she had done. Although Papachristou
and the revolution it represented did away with these old laws,
a mens rea of specific intent or purpose was not thereby
declared constitutionally necessary. The result has been the
panoply of offenses we have called loitering simpliciter.
Section 5506, however, includes just such a mens rea
requirement.
B
The remaining factors encompass those more subjective
measures of similarity—the punishment actually imposed and
the degree to which the defendant’s commission of the offense
indicates a likelihood of recurring criminal conduct. See
U.S.S.G. § 4A1.2 cmt. 12(A). These factors point in different
directions. On the one hand, although James was initially
sentenced to sixty days of probation, subsequent violations led
him to be resentenced to a term of imprisonment of between
three-and-a-half and nine months. In Pennsylvania, “[u]pon
revocation [of probation,] the sentencing alternatives available
to the court shall be the same as were available at the time of
initial sentencing.” 42 Pa. Cons. Stat. § 9771(b) (2019). The
court “is free to impose any sentence permitted under the
Sentencing Code” for the original crime. Commonwealth v.
Wallace, 870 A.2d 838, 843 (Pa. 2005). As a result, James’s
subsequent sentence indicates “the perceived seriousness,”
U.S.S.G. § 4A1.2 cmt. 12(A), of his violation of § 5506 at least
as well as his initial sentence. And by this measure, it reflects
a prison term in excess of the maximum punishment called for
not only by the MPC but also by most of the states that have
adopted the MPC’s loitering provision. On the other hand,
however, the government concedes that the fifth factor—the
indication of likely recidivism—counts in James’s favor. We
see no reason to question that concession.
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C
Although by some measures both § 5506 and its
application to James are indeed similar to the offenses that
comprise loitering simpliciter, we nevertheless conclude that
the balance weighs against him. For one, § 5506’s one-year
maximum term of imprisonment is comparable only to the
maximum punishment of a relative outlier in the range of
punishments commonly available for violations of loitering
provisions we acknowledge to constitute loitering simpliciter.
Further, the sentence James received upon revocation of his
probation also sits at the high end of that range. Finally, §
5506’s mens rea requirement categorically distinguishes it
from the “[l]oitering” offense listed in § 4A1.2(c)(2).
Collectively, these considerations are sufficient to render the
sentence imposed upon James for his violation of § 5506
countable under the Guidelines.
V
For these reasons, we will affirm the judgment of the
District Court.
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