United States v. James

• Decision Date: 09 March 2020
• Docket Number: No. 19-1480,19-1480
• Citation: 952 F.3d 429
• Parties: UNITED STATES of America v. Tremayne JAMES, Appellant
• Court: U.S. Court of Appeals — Third Circuit

952 F.3d 429

UNITED STATES of America

v.Tremayne JAMES, Appellant

No. 19-1480

United States Court of Appeals, Third Circuit.

Submitted Pursuant to Third Circuit L.A.R. 34.1a October 2, 2019

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

Before: SHWARTZ, FUENTES and FISHER, Circuit Judges.

OPINION OF THE COURT

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 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 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 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 , ––– U.S. ––––, 138 S. Ct. 2067, 2074, 201 L.Ed.2d 490 (2018) (alteration omitted) (quoting Perrin v. United States , 444 U.S. 37, 42, 100 S.Ct. 311, 62 L.Ed.2d 199 (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, 75 S.Ct. 513, 99 L.Ed. 615 (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 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, 73 S.Ct. 293, 97 L.Ed. 387 (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 , 92 Ga.App. 839, 90 S.E.2d 249, 251 (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 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...