                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-28-1997

United States v. Elmore
Precedential or Non-Precedential:

Docket 96-3462




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                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT



                             No. 96-3462


                    UNITED STATES OF AMERICA
                                  Appellee

                                 v.

                            RAYMOND ELMORE
                                     Appellant



         On Appeal from the United States District Court
            for the Western District of Pennsylvania
                      (D.C. No. 95-cr-00117)


         Submitted Pursuant to Third Circuit LAR 34.1(a)
                        February 10, 1997

              BEFORE:   GREENBERG, COWEN and McKEE,
                          Circuit Judges


                    (Filed February 28, 1997)


Bonnie R. Schlueter, Esq.
Office of United States Attorney
633 United States Post Office
 and Courthouse
Pittsburgh, PA 15219

     Counsel for Appellee

Thomas J. Michael, Esq.
Law Offices of Thomas J. Michael
660 USX Tower
Pittsburgh, PA 15219

     Counsel for Appellant


                               OPINION

COWEN, Circuit Judge.



                                  1
     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 offenses1 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
     1
      The court did not consider an additional prior offense on
the ground that it was too remote in time pursuant to United
States Sentencing Guidelines § 4A1.2(e)(4).



                                 2
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.


                                 3
     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 (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


                                4
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
     2
      Elmore’s attempt to parse this language so that it forbids
“public inconvenience,” and also “annoyance or alarm” in general,
is unavailing. We think it plain that the word “public” was
intended to modify not only “inconvenience,” but “annoyance” and
“alarm” as well. See, e.g., Commonwealth v. Young, 535 A.2d


                                   5
     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, 416 A.2d 563, 566-67 (Pa. Super. 1979)

(Spaeth, J., dissenting); Commonwealth v. Duncan, 363 A.2d 803,

807 (Pa. Super. 1976); see also Commonwealth v. Greene, 189 A.2d

141, 144 (Pa. 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
1141, 1142, 1143 (Pa. Super. 1988) (statute forbids recklessly
creating risk of “public annoyance or alarm”).



                                 6
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 level of punishment, the elements of the
     3
      We respectfully disagree with the conclusion reached by the
Court of Appeals for the Seventh Circuit in another case, United
States v. Booker, 71 F.3d 685, 689 (7th Cir. 1995), that it was
necessary to focus on the actual offense conduct in determining
whether a conviction for “`knowingly damag[ing] any property of
another without his consent,’” (quoting Ill. Rev. Stat. 1991, ch.
38, ¶ 21-1 (1991)), was “similar” to disorderly conduct for
purposes of U.S.S.G. § 4A1.2(c)(1).



                                 7
          offense, the level of culpability involved,
          and the degree to which the commission of the
          offense indicates a likelihood of recurring
          criminal conduct.


Id.; accord United States v. Booker, 71 F.3d 685, 689 (7th Cir.

1995) (using Hardeman factors); see also Martinez, 905 F.2d at

253-54 (considering whether conduct constituting unlisted offense

is “uniformly criminalized” and whether it indicates likelihood

of future criminal conduct).

     We decline to engage in such an inquiry.   The apparent

concern of Guidelines section 4A1.2(c)(1) in excluding from

consideration “offenses similar to” the enumerated offenses “by

whatever name they are known” is that an offense, the elements of

which in actuality constitute “disorderly conduct as that offense

is generally understood,” should not be considered merely because

that offense is denominated differently under state law.    United

States v. Fields, 39 F.3d 439, 447 n.9 (3d Cir. 1994).

Accordingly, we follow the approach of the Court of Appeals for

the First Circuit in Unger, 915 F.2d at 763 & n.5, and focus only

upon the elements of the offenses as statutorily defined.      See

also Martinez, 905 F.2d at 255-56 (Wallace, J., concurring).     In

doing so above, we have found no “similar[ity]” between the

offenses Elmore committed and “disorderly conduct,” within the

meaning of § 4A1.2(c)(1).4   The district court correctly included

those offenses in determining Elmore’s criminal history category.
                               III.

     4
      We thereby answer a question we left unanswered in United
States v. Fields, 39 F.3d 439, 447 (3d Cir. 1994).




                                 8
     Pursuant to U.S.S.G. § 4A1.1(d) and the application note

thereto, two points are to be added in determining a defendant’s

criminal history category if the present offense was committed

“while a violation warrant from a prior sentence is outstanding .

. . even if that sentence would have expired absent such

warrant.”

     Elmore avers that Florida officials never attempted to

execute the Palm Beach warrant.       Elmore moved to Pennsylvania

when the warrant had been outstanding for approximately one year.

 Members of Elmore’s family testified at the sentencing hearing

that Florida officials told them that they had no interest in

bringing Elmore back from Pennsylvania to Florida pursuant to the

warrant.    Elmore argues that the district court erred in

assigning two points on the grounds that the authorities had not

pursued the warrant, and that it had lapsed by the time he

committed the instant offense.

     Elmore cites no authority for his position.      The plain

language of the Guidelines indicates that two points are to be

added whenever an outstanding warrant is in existence, regardless

of whether the warrant is stale pursuant to state law at the time

of sentencing, and irrespective of whether state authorities have

been lax in attempting to execute the warrant.       See United States

v. Camilo, 71 F.3d 984, 987 (1st Cir. 1995), cert. denied, ___

U.S. ___, 116 S.Ct. 1555 (1996).      Further, the inclusion of

language stating that an outstanding violation warrant from a

prior sentence should be considered “even if that sentence would

have expired absent such warrant,” without further qualifying


                                  9
language, indicates that the Sentencing Commission intended there

to be no time limitations on the viability of an outstanding

warrant for these purposes.   The district court committed no

error in assigning two points on the basis of the Palm Beach

warrant.
                               IV.

    For the foregoing reasons, the August 6, 1996, judgment of

the district court will be affirmed.




                                10
