U.S. v. Elmore, 96-3462

• Decision Date: 10 February 1997
• Docket Number: No. 96-3462,96-3462
• Citation: 108 F.3d 23
• Parties: UNITED STATES of America, Appellee, v. Raymond ELMORE, Appellant. . Submitted Pursuant to Third Circuit LAR 34.1(a)
• Court: U.S. Court of Appeals — Third Circuit

Page 23

108 F.3d 23

UNITED STATES of America, Appellee, v. Raymond ELMORE, Appellant.

No. 96-3462.

United States Court of Appeals, Third Circuit.

Submitted Pursuant to Third Circuit LAR 34.1(a)

Feb. 10, 1997.

Decided Feb. 28, 1997.

Bonnie R. Schlueter, Office of United States Attorney, Pittsburgh, PA, for Appellee.

Thomas J. Michael, Law Offices of Thomas J. Michael, Pittsburgh, PA, for Appellant.

Before: GREENBERG, COWEN and McKEE, Circuit Judges.

OPINION OF THE COURT

COWEN, Circuit Judge.

Raymond Elmore appeals from a judgment sentencing him to 108 months imprisonment to be followed by 5 years of supervised release. We will affirm.

I.

On August 9, 1995, a three-count indictment was filed in the United States District Court for the Western District of Pennsylvania charging Raymond Elmore with distributing and possessing with intent to distribute cocaine and cocaine base on three different occasions in violation of 21 U.S.C. § 841. Elmore entered a plea of guilty to count three of the indictment. Pursuant to a plea agreement with the government, counts one and two were subsequently dismissed.

The district court held a sentencing hearing on August 2, 1996. It assigned one criminal history point for each of four prior offenses ¹ it found that Elmore had committed, two of which are at issue here. The first occurred in Pennsylvania in 1988 when, according to the Pre-Sentence Investigation ("PSI"), Elmore beat one Sherry Adams about the head and face, and threatened her with further violence. The PSI notes that when called to the scene, police noticed a fresh scratch on Adams' face. Elmore subsequently pled guilty to one count of harassment.

In the second incident, which occurred in Florida, police witnessed Elmore making threats against his wife and discovered a makeshift crack pipe in his car. There also were allegations that Elmore struck his wife at her place of employment. Elmore subsequently pled "no contest" to possession of drug paraphernalia and assault.

The district court additionally assigned two criminal history points on the basis of an outstanding warrant issued in March of 1992 by authorities in Palm Beach County, Florida. With a total offense level of 29 and a Criminal History Category of III, the applicable guideline range was 108 to 135 months imprisonment. The district court imposed a sentence of 108 months imprisonment and 5 years of supervised release. This appeal followed.

II.

Pursuant to United States Sentencing Guidelines § 4A1.1(c), in determining a defendant's criminal history category the district court is authorized to add one additional point, up to a maximum of four, for each of a criminal defendant's prior convictions. However, § 4A1.2(c)(1) excludes from consideration convictions for certain enumerated crimes and "offenses similar to them, by whatever name they are known" (except in circumstances not present here). One of those enumerated crimes and offenses that are excluded is "disorderly conduct."

Elmore contends that the offenses for which he was convicted were sufficiently "similar" to disorderly conduct to warrant exclusion. He further contends that one must look to the actual facts underlying each conviction, not just the fact of conviction and the elements of the offense as statutorily defined, to determine whether each is "similar to" disorderly conduct.

Our review of the district court's construction of terms included in the Sentencing Guidelines, a question of law, is plenary. See United States v. McQuilkin, 97 F.3d 723, 727 (3d Cir.1996). We determine the meaning of "disorderly conduct" pursuant to federal, not state, law. See United States v. Unger, 915 F.2d 759, 762-63 (1st Cir.1990); United States v. Martinez, 905 F.2d 251, 253 (9th Cir.1990); see also Taylor v. United States, 495 U.S. 575, 592, 110 S.Ct. 2143, 2155, 109 L.Ed.2d 607 (1990). "Disorderly conduct" is used to "signify[ ] generally any behavior that is contrary to law, and more particularly such as tends to disturb the public peace or decorum, scandalize the community, or shock the public sense of morality." BLACK'S LAW DICTIONARY 469 (6th ed.1990). Pursuant to MODEL PENAL CODE § 250.2(1) (1962):

A person is guilty of disorderly conduct if, with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:

(a) engages in fighting or threatening, or in violent or tumultuous behavior; or

(b) makes unreasonable noise or offensively coarse utterance, gesture or display, or addresses abusive language to any person present; or

(c) creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor.

"Public" means affecting or likely to affect persons in a place to which the public or a substantial group has access; among the places included are highways, transport facilities, schools, prisons, apartment houses, places of business or amusement, or any neighborhood.

We accept these as adequate descriptions of disorderly conduct for purposes of federal law.

Several of our sister circuits have held that, where a state definition of a crime includes both activities that are includable and those that are excludable under U.S.S.G. §§ 4A1.1(c) and 4A1.2(c)(1), the court must look to the defendant's actual conduct to determine whether it constituted an excluded offense. See United States v. Ward, 71 F.3d 262, 263-64 (7th Cir.1995); United States v. Kemp, 938 F.2d 1020, 1023-24 (9th Cir.1991). Elmore urges that his convictions for harassment and for assault and possession of drug paraphernalia were both pursuant to statutes that overlap with the definition of disorderly conduct. As a result, Elmore contends that the district court was obligated to look into the facts underlying his convictions in order to determine whether they were, in fact, for disorderly conduct. We disagree.

As the government notes, the definition of "harassment" in Pennsylvania criminalizes certain activity when done, inter alia, "with intent to harass, annoy or alarm another person." 18 Pa.C.S.A. § 2709 (emphasis added). By contrast, "disorderly conduct," both in Pennsylvania and pursuant to the federal definition, consists of certain activity when performed with the purpose or intent "to cause public inconvenience, annoyance or alarm." Id. § 5503 (emphasis added); MODEL PENAL CODE § 250.2(1) (emphasis added). ²

Thus, Pennsylvania follows the Model Penal Code approach of distinguishing between violent, unruly, or offensive conduct directed at an individual, which the state criminalizes as harassment, and similar activity when directed at the public at large, which the state characterizes as disorderly conduct. See Commonwealth v. Coolbaugh, 272 Pa.Super. 491, 416 A.2d 563, 566-67 (1979) (Spaeth, J., dissenting); Commonwealth v. Duncan, 239 Pa.Super. 539, 363 A.2d 803, 807 (1976); see also Commonwealth v. Greene, 410 Pa. 111, 189 A.2d 141, 144 (1963). Compare MODEL PENAL CODE § 250.2 (disorderly conduct) with id. § 250.4 (harassment). Accordingly, unlike the Arizona "domestic violence" statute at issue in Kemp, 938 F.2d at 1023, Pennsylvania's definition of harassment does not proscribe activity considered to be mere "disorderly conduct" as that term is defined as a matter of federal law. See also United States v. Cox, 934 F.2d 1114, 1124 (10th Cir.1991) (pursuant to Colorado law, menacing "is a crime against the person," while disorderly conduct "is a crime against the public peace, order, and decency"); cf. Ward, 71 F.3d at 262-63 (Wisconsin statute criminalizing "possession of a dangerous weapon by a child" covers both "juvenile status offense" crimes, excludable pursuant to U.S.S.G. § 4A1.2(c)(1), and crimes includable under that section).

As applied to his second conviction, Elmore's contention is equally meritless. It is inconceivable that Elmore's convictions for assault and possession of drug paraphernalia, as defined by Florida, were based on activity that constituted mere disorderly conduct. While all criminal activity may justifiably be said to "cause public inconvenience, annoyance or alarm", a conviction for a specific crime other than disorderly conduct demonstrates (without need to delve into the particular facts) that a defendant has done more than merely disturb the public order.

In short, Kemp and Ward require investigation into the facts underlying a conviction only when that conviction might in actuality be for mere disorderly conduct but not a different, more specific crime. Because Elmore was convicted of more serious offenses that are addressed by specific statutory provisions, it is not possible that the conduct underlying those convictions consisted of mere disorderly conduct. Kemp and Ward are thus inapposite. ³

In United States v. Hardeman, 933 F.2d 278, 281 (5th Cir.1991), the Court of Appeals for the Fifth Circuit held that the courts should inquire into "all possible factors of similarity," in determining whether an unlisted offense is "similar" to a listed offense for purposes of Guidelines section 4A1.2(c)(1). These factors include

a comparison of punishments imposed for the listed and unlisted offenses, the perceived seriousness of the offense as indicated by the...