                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-17-2006

USA v. Laureano
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2078




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                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 05-2078


                          UNITED STATES OF AMERICA

                                           v.

                                ORLANDO LAUREANO,

                                                Appellant


                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                             (D.C. Crim. No. 1:04-CR-103)
                        District Judge: Honorable Yvette Kane


                               Argued December 15, 2005

        Before: SLOVITER, SMITH, and VAN ANTWERPEN, Circuit Judges.

                               (Filed: January 17, 2006)

Kent D. Watkins
101 South Second Street
Saint Clair, PA 17970
       Counsel for Appellant

Thomas A. Marino, United States Attorney
Theodore B. Smith, III, Assistant U.S. Attorney (Argued)
Office of the United States Attorney
228 Walnut Street
Harrisburg, PA 17108
       Counsel for Appellees
                                            ____

                                OPINION OF THE COURT


VAN ANTWERPEN, Circuit Judge.

       Appellant Orlando Laureano challenges the legality of his sentence in the United

States District Court for the Middle District of Pennsylvania, claiming the District Court

erred by assigning him an additional criminal history point for a prior conviction under 75

Pa. C.S. § 3809, which prohibits possession of an open alcoholic container or consumption

of a controlled substance or alcoholic beverage in a motor vehicle on a Commonwealth

highway. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a) and

will affirm.

                                              I.

       The District Court added one criminal history point to Laureano’s sentencing

guidelines calculation for a prior, unrelated October 21, 2003 conviction under 75 Pa. C.S.

§ 3809, wherein Laureano had pled guilty to operating a motor vehicle while possessing an

open 22-ounce bottle of “Silver Thunder” malt liquor.         Laureano’s sentence for that

conviction was a fine and costs totaling $217. On appeal, he argues that 75 Pa. C.S. § 3809

is, or is sufficiently similar to, a minor traffic infraction, public intoxication, or a local

ordinance violation, such that it must be excluded from his guidelines calculation pursuant

to U.S.S.G. § 4A1.2(c).

                                             II.

                                              2
       “The courts of appeals review sentencing decisions for unreasonableness,” United

States v. Booker, 543 U.S. ___, ___, 125 S. Ct. 738, 767 (2005), and we review a district

court’s legal interpretation of the now-advisory United States Sentencing Guidelines de novo.

See, e.g., United States v. Irwin, 369 F.3d 284, 285 n.2 (3d Cir. 2004). Laureano and the

government agree, correctly, that he timely objected to the additional criminal history point

both at the time of his presentence report and at the time of his sentencing. Accordingly,

Laureano properly preserved the issue on appeal.

                                             III.

       We begin with U.S.S.G. § 4A1.2(c), which provides a default rule in pertinent part:

              (c) Sentences Counted and Excluded

              . . . . Sentences for misdemeanor and petty offenses are counted,
              except as follows:

              (1) Sentences for the following prior offenses and offenses
              similar to them, by whatever name they are known, are counted
              only if (A) the sentence was a term of probation of at least one
              year or the term of imprisonment was at least thirty days, or (B)
              the prior offense was similar to an instant offense:
                      ...
                      Local ordinance violations (excluding local ordinance
                      violations that are also criminal offenses under state law)
                      ...

              (2) Sentences for the following prior offenses and offenses
              similar to them, by whatever name they are known, are never
              counted:
                     ...
                     Minor traffic infractions (e.g., speeding)
                     Public intoxication
                     ...

                                              3
U.S.S.G. § 4A1.2(c). Next, although not cited by either party in their respective briefs, we

turn to our decision in United States v. Elmore, 108 F.3d 23 (3d Cir. 1997). In that §

4A1.2(c) case, we declined an invitation to “inquire into ‘all possible factors of similarity[]’

in determining whether an unlisted offense is ‘similar’ to a listed offense for the purposes of

Guidelines section 4A1.2(c)(1).” Elmore, 108 F.3d at 27 (citation omitted). Instead, we

adopted the approach of the Court of Appeals for the First Circuit, holding the proper

methodology for analyzing § 4.A1.2(c) challenges should “focus only upon the elements of

the offenses as statutorily defined.” Id.; see also United States v. Unger, 915 F.2d 759, 762-

63 (1st Cir. 1990). In so holding, we also rejected the argument that we “must look to the

defendant’s actual conduct to determine whether it constituted an excluded offense.”

Elmore, 108 F.3d at 26.

       With both § 4A1.2(c) and Elmore in mind, the question whether 75 Pa. C.S. § 3809

is excludable under one of the exceptions to § 4A1.2(c)’s default rule resolves itself as

follows. Here, as a threshold matter, § 4A1.2(c)(1)(A) is plainly inapplicable, as Laureano

was neither imprisoned nor placed on probation pursuant to his conviction under § 3809.

The only issue, then, is whether § 3809 is sufficiently similar to one of the enumerated

offenses under subsections (c)(1) or (c)(2) to warrant exclusion.

       75 Pa. C.S. § 3809 states in pertinent part:

              (a) General rule.– . . . [A]n individual who is an operator or an
              occupant in a motor vehicle may not be in possession of an open
              alcoholic beverage container or consume a controlled substance
              as defined in . . . The Controlled Substance, Drug, Device, and

                                               4
              Cosmetic Act, or an alcoholic beverage in a motor vehicle while
              the motor vehicle is located on a highway in this
              Commonwealth.
              ...
              (c) Penalty.–An individual who violates this section commits a
              summary offense.

75 Pa. C.S. § 3809.1

       While we are not unmindful that the criminal history point at issue here represented

to Laureano the difference between being subject to a guideline range of 24 to 30 months

(with the additional point) instead of 18 to 24 months (without), the plain language of these

statutory provisions compels us to conclude that the District Court did not err in reading §

4A1.2(c) and 75 Pa. C.S. § 3809 as it did. Under § 4A1.2(c)’s default rule, the past

conviction is to be counted absent grounds for exclusion, and we agree with the government

that such grounds are lacking with respect to § 3809.

       As to Laureano’s public intoxication contention, we find that our methodology as

articulated in Elmore compels our conclusion. Pennsylvania’s public intoxication statute, 18

Pa.C.S. § 5505, states in pertinent part:

              § 5505. Public drunkenness and similar misconduct

              A person is guilty of a summary offense if he appears in any

   1
      Under Pennsylvania law, an offense is a summary offense if “(1) [i]t is so designated
in this title, or in a statute other than this title; or (2) [i]f a person convicted thereof may
be sentenced to a term of imprisonment, the maximum which is not more than 90 days.”
18 Pa. C.S. § 106(c). However, 75 Pa. C.S. § 6502(c), which describes penalties under
the Vehicle Code, specifically states that Title 18 is inapplicable “insofar as it relates to
fines and imprisonment for convictions of summary offenses.” Thus, under the Vehicle
Code, an open container violation is punishable by a fine, but not imprisonment.

                                               5
              public place manifestly under the influence of alcohol or a
              controlled substance . . . to the degree that he may endanger
              himself or other persons . . . or annoy persons in his vicinity.

18 Pa.C.S. § 5505. As set forth above, § 3809, in contrast, states in pertinent part:

              . . . [A]n individual who is an operator or an occupant in a motor
              vehicle may not be in possession of an open alcoholic beverage
              container or consume a controlled substance . . . or an alcoholic
              beverage in a motor vehicle while the motor vehicle is located
              on a highway in this Commonwealth.

Plainly, the elements of these offenses are dissimilar. Section 5505 requires presence in a

“public place”; § 3809 requires presence in a “motor vehicle.” Section 5505 requires a

“manifest[]” showing that one is “under the influence”; § 3809 requires only a showing of

possession or consumption. Section 5505 requires “endanger[ment]” or “annoy[ance]”; §

3809 does not. Given the dissimilarity of § 3809 and § 5505, we reject Laureano’s public

intoxication argument.

       Although Elmore’s element-by-element approach fits neatly when we consider

whether Laureano’s prior conviction is similar to public intoxication, Elmore’s analysis is

not as easily applied to the items listed in § 4A1.2(c). Local ordinance violations are not

specific offenses and do not have “elements.” Rather, they are a category of offenses.

       That said, a definitional approach, which we apply to Laureano’s local ordinance

argument, is nonetheless consistent with Elmore.        As to Laureano’s local ordinance

contention, we observe that the presence of a motor vehicle “on a highway in this

Commonwealth” is one of § 3809's three elements. Because § 3809 reaches all of the

highways of the Commonwealth, the provision is, by virtue of its element of geographic

scope, fundamentally unlike a local ordinance.

                                              6
       Any doubt as to this dissimilarity is removed, we believe, upon observation of Section

3809’s place of codification. Section 3809 resides not in Chapter 33 of Pennsylvania’s

Vehicle Code, which is entitled “Rules of the Road in General,” but rather in Chapter 38 of

that Code, entitled “Driving After Imbibing Alcohol or Utilizing Drugs.” While this does

not speak directly to § 3809's elements vis-a-vis Laureano’s claim that § 3809 is merely a

local ordinance by another name, the legislature’s placement of the statute in Chapter 38

strongly suggests its intent to classify the offense as something more than a violation of a

local ordinance — not only with respect to the risk of danger posed by the prohibited

conduct, which is something we may not strictly consider under Elmore — but also as to the

legislature’s desired geographic scope for § 3809. This is because 75 Pa.C.S. § 3101(b)

makes clear that all of the offenses enumerated in Chapter 38 cannot be considered local.

See id. (stating that all “[s]erious traffic offenses” including those in “Chapter 38 relating to

driving after imbibing alcohol or utilizing drugs[] shall apply upon highways and trafficways

throughout this Commonwealth”) (emphasis added). Given both § 3809's elements as well

as its codification grouping, we reject Laureano’s local ordinance argument as well.2

       Accordingly, we will affirm the March 28, 2005 sentence of the District Court.



   2
      Laureano asserted at argument that § 3809 is also similar to a “[m]inor traffic
infraction[].” § 4A1.2(c)(2). Review of Laureano’s brief confirms the argument is
waived. See, e.g., United States v. Pelullo, 399 F.3d 197, 222 (3d Cir. 2005) (“It is well
settled that an appellant's failure to identify or argue an issue in his opening brief
constitutes waiver of that issue on appeal.”). Even were this not so, our review would be
for plain error, since Laureano did not raise this argument below. See Fed. R. Crim. P.
52(b). Because we have not previously spoken on this issue, the District Court did not
plainly err. See, e.g., United States v. Vazquez, 271 F.3d 93, 100 (3d Cir. 2001) (en banc)
(error is plain only where proper course is “clear under current law”) (quoting United
States v. Olano, 507 U.S. 725, 734 (1993)).

                                               7
