                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                      No. 17-2454
                                   ________________

                            UNITED STATES OF AMERICA

                                             v.

                                VINCENT LIVINGSTON
                                       a/k/a
                                     Double O

                                   Vincent Livingston,

                                                Appellant
                                   ________________

                      Appeal from the United States District Court
                              for the District of New Jersey
                     (D.C. Criminal Action No. 2-15-cr-00627-001)
                       District Judge: Honorable Claire C. Cecchi
                                   ________________

                       Submitted under Third Circuit LAR 34.1(a)
                                  on March 20, 2018

         Before: SMITH, Chief Judge, HARDIMAN and ROTH, Circuit Judges

                               (Opinion filed May 8, 2019)
                                  ________________

                                       OPINION
                                   ________________



 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
ROTH, Circuit Judge

       Vincent Livingston appeals the sentence imposed by the United States District

Court for the District of New Jersey. Livingston contends that the District Court

misapplied the United States Sentencing Guidelines (Guidelines) when it counted in

Livingston’s criminal history score his prior conviction for deceptive business practices

under New Jersey Statute § 2C:21-7. We conclude that the District Court correctly

applied the Guidelines, and therefore we will affirm its judgment of sentence.

                                            I.

       In 2017, Livingston pled guilty to one count of knowingly and intentionally

conspiring to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and

846. At sentencing, Livingston argued that two of his prior convictions—one for

loitering with the intent to obtain or distribute a controlled dangerous substance and the

other for deceptive business practices—should be excluded from his criminal history

score. Livingston contends that these prior two convictions were not countable under

U.S.S.G. § 4A1.2(c)(1), which lists a number of minor offenses and provides that the

sentences for such offenses and offenses similar to them will not be counted in the

Criminal History computation.

       The government contested the exclusion of these prior convictions. The District

Court rejected Livingston’s arguments that his prior convictions were sufficiently similar

to the enumerated offenses, and assigned one criminal history point for each of the

convictions. The counting of these two convictions placed Livingston in Criminal
                                             2
History Category II. Livingston was then sentenced to sixty-three months in prison, the

bottom of the applicable Guidelines range.

       Livingston now appeals the assignment of one criminal history point for his

deceptive business practices conviction.1

                                             II.2

       Livingston argues that his deceptive business practices conviction is similar to the

Guidelines enumerated offense of “disorderly conduct or disturbing the peace” and, as a

result, the District Court erred in counting the conviction towards his criminal history

score. Whether “deceptive business practices” is similar to the Guidelines offense of

disorderly conduct is an issue of first impression in this Court. To determine whether the

two offenses are similar, we apply the five-factor test we previously announced in United




1
  Livingston does not appeal the assignment of one point for his prior conviction of
loitering for the purpose of using, possessing, or selling a controlled dangerous substance.
We held in United States v. Hines that the loitering referred to in the Guidelines is
loitering simpliciter, which is not the same as loitering for the purpose of using,
possessing, or selling a controlled dangerous substance under New Jersey Statute §
2C:33-2.1; the latter involves “the specific intent to obtain or distribute a controlled
substance unlawfully” and therefore constitutes “loitering plus.” 628 F.3d 101, 108-09
(3d Cir. 2010). Hines thus forecloses any argument that the District Court improperly
assigned one criminal history point for Livingston’s prior loitering conviction.
2
  The District Court had jurisdiction under 18 U.S.C. § 3231, and we have jurisdiction
under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(2). We review de novo a district court’s
interpretation of the Guidelines. Hines, 628 F.3d at 105.

                                              3
States v. Hines.3 After balancing these factors, we conclude that the two offenses are not

similar.

       The Guidelines provide that disorderly conduct or disturbing the peace “and

offenses similar to them, by whatever name they are known,” shall not be counted in

determining a defendant’s criminal history score, unless “(A) the sentence [of the prior

offense] was a term of probation of more than one year or a term of imprisonment of at

least thirty days, or (B) the prior offense was similar to an instant offense.”4 To

determine whether a prior offense is similar to disorderly conduct or disturbing the peace,

we (1) compare the punishments imposed, (2) consider the perceived seriousness of the

instant offense, (3) compare the elements of the offenses, (4) compare the level of

culpability involved, and (5) consider the degree to which the commission of the offense

indicates a likelihood of recidivism.5 Where, “[o]n balance,” fewer factors weigh in

favor of finding similarity, the prior offense is not “similar to” the Guidelines offense.6

       Livingston concedes that the first factor weighs against a finding of similarity. In

comparing the punishments of the offenses, we look to the maximum possible



3
  628 F.3d at 110. Our previous approach for determining whether an offense is similar
to one of the enumerated offenses in the Guidelines entailed just a comparison of the
elements of the offenses. See United States v. Elmore, 108 F.3d 23, 27 (3d Cir. 1997). In
Hines, we recognized that this approach had been disavowed by the Sentencing
Commission. Hines, 628 F.3d at 110. We therefore adopted the five-factor test that the
Guidelines approved. See id.
4
  U.S.S.G. § 4A1.2(c)(1) (emphasis added). The parties do not argue that either of these
exceptions apply here.
5
  See Hines, 628 F.3d at 110.
6
  See id. at 113.

                                              4
punishments under the relevant state laws.7 As we have previously held, where an

offense is punishable by more than thirty days’ imprisonment, the offense is not “similar

to” an offense punishable by thirty days or less.8 The maximum possible punishment for

deceptive business practices, a disorderly persons offense, is six months in jail, while the

maximum potential sentence for “disorderly conduct,” a petty disorderly persons offense,

is only thirty days in jail.9 The punishments for the two crimes, therefore, are not similar.

       Second, we evaluate the seriousness of Livingston’s prior conviction by

considering the punishment he actually received. For his crime of deceptive business

practices, Livingston was sentenced to one year of probation and eight days of jail credit.

This sentence, and specifically the small amount of jail time involved, is “similar to the

penalties one would receive for committing the type of minor offense that the Guidelines

do not count.”10 Thus, this factor weighs in favor of finding that the deceptive business

practices offense is similar to the Guidelines offense of disorderly conduct.

       Third, we compare the elements of the two crimes. For this analysis, we “interpret

New Jersey’s statute according to state law and the Guidelines according to federal




7
  See id. at 110-11.
8
  Id. at 111.
9
  See N.J. Stat. § 2C:21-7 (deceptive business practices is a disorderly persons offense);
N.J. Stat. § 2C:33-2 (disorderly conduct is a petty disorderly persons offense); N.J. Stat.
§ 2C:43-8 (“A person who has been convicted of a disorderly persons offense or a petty
disorderly persons offense may be sentenced to imprisonment for a definite term which
shall be fixed by the court and shall not exceed 6 months in the case of a disorderly
persons offense or 30 days in the case of a petty disorderly persons offense.”).
10
   Hines, 628 F.3d at 111.

                                              5
law.”11 In New Jersey, “[a] person commits an offense [of deceptive business practices

if] he . . . [s]ells, offers or exposes for sale adulterated or mislabeled commodities.”12

Under federal law, an individual is guilty of “disorderly conduct” if with the “intent to

cause public inconvenience, annoyance or alarm” he engages in violent or threatening

behavior; makes unreasonable noise or offensive displays; uses abusive language; or

creates a hazardous or physically offensive condition.13 The elements of the two crimes

are very different. This factor, therefore, weighs in favor of concluding that the two

crimes are not similar.

       Fourth, and related to the third element, we evaluate the level of culpability

involved in each crime. As we said in Hines, “[c]ulpability is another way of describing

the mens rea a statute requires of each material element of an offense.”14 The mens rea of

New Jersey’s deceptive business practices statute is “knowing[] or reckless[]” deception

in selling “adulterated or mislabeled” goods.15 On the other hand, the mens rea of

disorderly conduct under the Guidelines is the “purpose to cause public inconvenience

. . . or recklessly creating a risk thereof.”16 Because the mens rea of disorderly conduct

does not involve any knowing or reckless deception, “the culpability requirements are


11
   Id.
12
   N.J. Stat. § 2C:21-7(d).
13
   Elmore, 108 F.3d at 26 (quoting Model Penal Code § 250.2(1)) (internal quotation
marks omitted).
14
   628 F.3d at 113.
15
   See N.J. Stat. § 2C:21-7 (“It is an affirmative defense to prosecution under this section
if the defendant proves by a preponderance of the evidence that his conduct was not
knowingly or recklessly deceptive.”).
16
   Model Penal Code § 250.2(1).

                                              6
divergent enough to render the offenses dissimilar under this portion of the Guidelines’

balancing test.”17

         Finally, the government has not provided any evidence that a deceptive business

practices conviction indicates a likelihood of recidivism. Even if this factor weighs in

favor of finding similarity, however, three of the other factors do not.

         As a result, the offense of deceptive business practices under New Jersey law is

not similar to the Guidelines enumerated offense of disorderly conduct. For this reason,

the District Court properly counted the deceptive business practices conviction toward

Livingston’s criminal history score.

                                       CONCLUSION

         For the above reasons, we will affirm the judgment of the District Court.




17
     Hines, 628 F.3d at 113.

                                              7
