                                                                   NOT PRECEDENTIAL


                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                       __________

                                       No. 19-2664
                                       __________

                            UNITED STATES OF AMERICA

                                             v.

                                    DEREK PELKER,
                                              Appellant
                                      __________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                        (D.C. Criminal No. 1-16-cr-00240-001)
                        District Judge: Honorable Yvette Kane
                                      __________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                    May 22, 2020

              BEFORE: McKEE, BIBAS, and NYGAARD, Circuit Judges

                                   (Filed July 29, 2020)

                                       __________

                                        OPINION*
                                       __________


NYGAARD, Circuit Judge.

*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Derek Pelker contends in this appeal that the District Court abused its discretion

by denying him a continuance and a new trial, and erred by assigning one criminal

history point for a previous conviction on harassment. We will affirm.

       In a second superseding indictment the Government charged Pelker with four

counts of conspiracy to commit armed bank robbery in violation of 18 U.S.C. § 371, four

counts of armed bank robbery in violation of 18 U.S.C. § 2113(a) and (d), and related

firearm offenses.1 Acting pro se, with court-appointed stand-by counsel, Pelker entered a

not guilty plea to all counts. The Government transferred him to the Dauphin County

Prison for his trial approximately two weeks before it commenced.

       On the morning of jury selection Pelker unsuccessfully moved for a continuance.

He contends that he was unable to adequately prepare for trial after the government

moved him to the Dauphin County Prison. His claim is based on the following:

receiving writing material only one week before trial, not having an opportunity to review

discovery or mark exhibits, having only brief access to the law library, and getting

inadequate sleep because of the prison schedule. In light of these, Pelker maintains the

District Court abused its discretion by denying him a continuance, and later, a new trial.

       We generally assess the District Court’s use of discretion on a denial of a motion

for continuance by balancing the degree to which the appellant’s rights were impaired

against the efficient administration of justice and the rights of other defendants who are


1
 The Government also charged Pelker with two counts of brandishing a firearm in
furtherance of a crime of violence (18 U.S.C. § 924(c)) and two counts of felon in
possession of a firearm (18 U.S.C. § 922(g)).
                                             2
impacted by the decision.2 The record demonstrates that Pelker had access to discovery

more than one year before trial and he received assistance from his stand-by counsel,

particularly in the days leading up to trial. He has failed to show with any specificity

how his rights were harmed by having to proceed with the trial as scheduled. Moreover,

as the District Court noted, Pelker had opportunities to make the request well before the

start of jury selection. Granting a last-minute continuance would have delayed trial,

burdening jurors, witnesses and co-defendants. We conclude that the District Court did

not abuse its discretion here.

       We next turn to Pelker’s claims of prejudice during the trial.3 On the first day, the

Government asked co-defendant Ryan Miller about whether he observed Pelker carrying

a particular firearm. Miller responded: “He was in the halfway house most of the time,

so he didn’t carry it all the time.”4 Pelker objected and moved for a mistrial. The

Government requested that the statement be stricken from the record. The District Court

granted the request to strike and instructed the jury “[w]hen testimony is ordered stricken

from the record, you must ignore it as though it has never been heard.”5 It repeated in its

final instruction to the jury that stricken testimony is not evidence.

       On the third day of trial, Special Agent Geoffrey Ford (an investigator with the

Federal Bureau of Investigation) answered the Government’s question about his


2
  See United States v. Kikumura, 947 F.2d 72, 78 (3d Cir. 1991); United States v. Olfano,
503 F.3d 240, 245-46 (3d Cir. 2007).
3
  We review for an abuse of discretion. See United States v. Riley, 621 F.3d 312, 335-36
(3d Cir. 2010).
4
  App. 101.
5
  App. 102.
                                              3
familiarity with the voice of Pelker’s girlfriend by saying: “We’ve interviewed her twice.

I’ve also listened to some phone calls that Derek Pelker has made to her from various

prisons.”6 Pelker objected and was overruled. The Government then asked Ford how he

knew Pelker’s voice and he responded: “I’ve met with the defendant on a number of

occasions. I’ve also listened to his voice throughout this trial. I’ve also heard his voice

on prison phone calls.”7 The District Court denied Pelker’s request for a mistrial but

instructed Ford to refrain from mentioning the origin of the phone calls.

       On appeal, Pelker argues that all of these statements are prejudicial because they

portray him as an incorrigible, imprisoned criminal. He also stresses that the District

Court never issued a corrective instruction to the jury in response to Ford’s statements.

However, as the District Court observed in its denial of Pelker’s motion for a new trial,

the statements in question were neither persistent nor pronounced and the evidence

against Pelker—which included co-conspirator and victim testimony as well as video and

photographs—was quite strong. Moreover, we conclude that the District Court

responded appropriately to the statements of both witnesses to mitigate any potential

prejudice. The District Court did not abuse its discretion by denying the motion for a

new trial on this basis.

       Finally, Pelker claims the District Court erred by adding one criminal history point

for his 2015 state conviction for harassment under 18 Pa. Con. Stat. § 2709(a)(1).8 This


6
  App. 116.
7
  App. 117.
8
  We review the district court’s interpretation of the Guidelines de novo and relevant
findings of fact for clear error. United States v. Grier, 475 F.3d 556, 570 (3d Cir. 2007).
                                              4
placed him in criminal history category V. United States Sentencing Guidelines §

4A1.2(c)(1)9 precludes from the calculation of criminal history points certain enumerated

and “similar” offenses. Pelker contends the District Court erred by failing to exclude his

conviction because, in the Pennsylvania Code, harassment seems to be similar to

disorderly conduct, an enumerated offense under the Guideline.

       To assess “similarity” an Application Note to the Guidelines states that the court

should use a “common-sense” approach that includes consideration of factors such as “(i)

a comparison of punishments imposed for the listed and unlisted offenses; (ii) the

perceived seriousness of the offense 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.”10

The summary harassment offense for which Pelker was convicted consists of the

following: “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 or threatens to do the same.”11 Regarding

disorderly conduct, the Pennsylvania Code states:

              A person is guilty of disorderly conduct if, with intent to
              cause public inconvenience, annoyance or alarm, or

9
  § 4A1.2(c): “Sentences for all felony offenses are counted. 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 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: . . . Disorderly conduct or disturbing the peace.”
10
   § 4A1.2(c), Application Note 12(A).
11
   § 2709(a)(1).
                                             5
                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.12

       Pelker emphasizes that, like disorderly conduct, his harassment conviction was a

summary offense.13 He also notes that physically threatening behavior is common to

both. But disorderly conduct does not involve an intent to harm a person, only an intent

to create a public disturbance. And the difference between an intent to cause personal

harm and an intent to cause public inconvenience is fundamental, outweighing any

overlapping conduct or similar grading. This point is reinforced by our examination of

Pelker’s conduct that resulted in his conviction. The Presentence Report notes that he

physically attacked his victim, causing minor injury. This act is much more akin to

simple assault14 (which is not an enumerated offense) or perhaps even felony aggravated

assault15 than it is to creating a public disorder. We therefore conclude that harassment is

not similar to disorderly conduct for purposes of Section 4A1.2. The District Court did

not err.

       For all of these reasons we will affirm the District Court’s judgment of conviction

and sentence.



12
   18 Pa. Con. Stat. § 5503(a).
13
   See § 2709(c)(1). Disorderly conduct is graded a misdemeanor of the third degree in
cases of “substantial harm or serious inconvenience” or persistent conduct following
reasonable warning, but otherwise is a summary offense. 18 Pa Con. Stat. § 5503(b).
14
   See 18 Pa. Con. Stat. § 2701.
15
   See 18 Pa. Con. Stat. § 2702 (a)(1).
                                                6
