                                                         NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                 ______________

                                       No. 10-2206
                                     ______________

                            UNITED STATES OF AMERICA

                                             v.

                                     JERRY STRAIN,
                                             Appellant

                                     ______________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                          (D.C. Crim. No. 1-09-cr-00291-003)
                     Honorable Christopher C. Conner, District Judge
                                    ______________

                        Submitted under Third Circuit LAR 34.1(a)
                                   December 17, 2010

    BEFORE: SLOVITER, GREENAWAY, JR., and GREENBERG, Circuit Judges

                                 (Filed: February 8, 2011)
                                     ______________

                               OPINION OF THE COURT
                                   ______________

GREENBERG, Circuit Judge.

       This matter comes on before this Court on appellant Jerry L. Strain’s appeal from

a judgment of conviction and sentence entered on April 12, 2009. Strain, however, limits

his appeal to a challenge to the District Court’s calculation of his criminal history
category for sentencing guideline purposes. The Court sentenced Strain to a 90-month

custodial term to be followed by a three-year term of supervised release after Strain

pleaded guilty to an information charging him with conspiracy to distribute and possess

with intent to distribute crack cocaine in violation of 21 U.S.C. § 846.

       This case centers on the application of sentencing guideline section 4A1.2(c)(1)

which directs district courts when calculating a defendant’s criminal history category to

exclude certain misdemeanor and petty offenses and offenses similar to them, including

disorderly conduct offenses, unless the sentence for the conviction was for a term of

probation of more than one year or imprisonment for at least 30 days. In calculating

Strain’s criminal history, the Court included, among his previous convictions, a

Pennsylvania conviction for harassment, but Strain argues that the Court should not have

counted that conviction because the harassment offense was similar to disorderly

conduct, one of the offenses section 4A1.2(c)(1) provides should be excluded.

       This case arises in the aftermath of United States v. Elmore, 108 F.3d 23 (3d Cir.

1997), in which we held that harassment was not similar to disorderly conduct for the

purpose of the guideline calculation and thus a district court should not exclude it when

calculating a defendant’s criminal history. In so holding, we used a categorical approach

in determining if the prior offense should be excluded. That approach focused on the

offense’s elements rather than on the defendant’s conduct. Id. at 27. By the time that we

decided Elmore other courts of appeals had adopted a multi-factor test in applying section

4A1.2(c)(1) to determine whether an offense not listed in section 4A1.2(c)(1) is similar to

an offense listed in that section.

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       In 2007, the Sentencing Commission resolved the difference in approaches by

adopting a “common sense” approach for courts to consider in determining if section

4A1.2(c)(1) requires the exclusion of a conviction. This common sense approach

includes a non-exclusive list of factors set forth in the application notes to the guideline.

Section 4A1.2 comment (n.12) now provides that

              In General.—In determining whether an unlisted offense is
              similar to an offense listed in subdivision (c)(1) or (c)(2), the
              court should use a common sense approach that includes
              consideration of relevant factors such as (i) a comparison of
              punishments imposed for the listed and unlisted offenses; (ii)
              the perceived seriousness of the offenses as indicated by the
              level of punishment; (iii) the elements of the offense; (iv) the
              level of culpability involved; and (v) the degree to which the
              commission of the offense indicates a likelihood of recurring
              criminal conduct.

       When Strain pleaded guilty to the charge of harassment, Pennsylvania defined the

offense as follows:

              (a) Offense defined.—A person commits the crime of
              harassment when, with intent to harass, annoy or alarm
              another, the person:

                      (1) strikes, shoves, kicks or otherwise subjects the other
                      person to physical contact, or attempts to threaten or
                      do the same;

              (c) Grading.—

                      (1) An offense under subsection (a)(1), (2) or (3) shall
                      constitute a summary offense.

18 Pa. Cons. Stat. Ann. § 2709 (West Supp. 2006).

       At that time Pennsylvania defined disorderly conduct as follows:



                                              3
              (a) Offense defined.—A person is guilty of disorderly
              conduct if, with intent to cause public inconvenience,
              annoyance or alarm, or recklessly creating a risk thereof, he:

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

                     (2) makes unreasonable noise;

                     (3) uses obscene language, or makes an obscene
                     gesture; or

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

              (b) Grading.—An offense under this section is a
              misdemeanor of the third degree if the intent of the actor is to
              cause substantial harm or serious inconvenience, or if he
              persists in disorderly conduct after reasonable warning or
              requests to desist. Otherwise disorderly conduct is a
              summary offense.

18 Pa. Cons. Stat. Ann. § 5503 (West 2000).

       In his brief Strain explains that his harassment conviction arose from an

“altercation with a neighbor” in which he “struck the neighbor with a wooden ski and his

fists and feet.” Appellant’s br. at 4. The presentence report indicates that the neighbor

“was treated at Harrisburg Hospital for cuts and bruises.” The Pennsylvania court

imposed a fine of $167.50 on this conviction.

       Strain contended in the District Court that harassment was similar to disorderly

conduct and thus the Court should exclude it when determining his criminal history

pursuant to section 4A1.2(c)(1). The Court, however, found that the harassment of which

Strain was convicted was dissimilar to the offense of disorderly conduct and thus it would


                                             4
not exclude the conviction in determining Strain’s criminal history. That determination

gave Strain a criminal history category of III and a guideline sentencing range of 108-135

months. The Court then varied downwards from the range and sentenced Strain to a

custodial term of 90 months.1 If the Court had agreed with Strain that it should exclude

the harassment conviction in determining his criminal history category, his category

would have been II rather than III and thus his sentencing range would have been lower.

Following the entry of the judgment Strain filed this appeal.

       The District Court had jurisdiction under 18 U.S.C. § 3231, and we have

jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291. We review the District

Court’s interpretation of the sentencing guidelines de novo, see United States v.

Pojilenko, 416 F.3d 243, 246 (3d Cir. 2005), and review its findings of fact for clear

error. See United States v. Wise, 515 F.3d 207, 217 (3d Cir. 2008). In this process we

ascertain if the District Court committed any significant error, such as failing to calculate

or improperly calculating the guideline range. See Gall v. United States, 552 U.S. 38, 51,

128 S.Ct. 586, 597 (2007); United States v. Grier, 585 F.3d 138, 141 (3d Cir. 2009).

       Our consideration of this matter has led us to conclude that the District Court

correctly determined, using the common sense approach that section 4A1.2(c) now

requires, that Strain’s conviction for harassment was so dissimilar to the offense of

disorderly conduct that it should not be excluded in his criminal history calculation. In

reaching its conclusion that it should not exclude the harassment conviction, the Court


1
  The Court also imposed a fine and special assessment but we are not concerned with
them on this appeal.
                                              5
examined the elements of the offenses of harassment and disorderly conduct and, quite

appropriately, in addition considered Strain’s conduct that led to his harassment

conviction. The Court also noted that Strain originally had been charged in the state

court with simple assault but pleaded guilty to harassment as a reduced charge. In the

Court’s view, the fact that Strain originally was charged with simple assault made the

harassment offense more similar to simple assault than disorderly conduct.

       In our view, it is significant that the harassment charge was based on conduct that

involved an assault on another person by kicking, punching and striking him with a pair

of wooden skies with such force that the victim needed medical treatment. Such conduct

is more serious and of a different character than a disorderly conduct offense which

focuses on a defendant’s intention “to cause public inconvenience, annoyance, or alarm.”

See 18 Pa. Cons. Stat. Ann. § 5503 (West 2000). The use of wooden skies, which

obviously could be and were used as a weapon to cause an injury, cannot be characterized

as an act merely causing inconvenience, annoyance, or alarm.

       We recognize that Strain argues that in the light of the 2007 amendment to section

4A1.2 we should overrule Elmore. We, however, need not address that contention

because rather than applying a categorical approach in determining whether to exclude

the harassment conviction, the District Court applied, correctly, the common sense

approach as directed by the 2007 guidelines amendment.

       For the foregoing reasons the judgment of conviction and sentence entered April

12, 2009, will be affirmed.

                                    ______________

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