NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 10-2206

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UNITED STATES OF AMERICA

v.

JERRY STRAIN,

 Appellant

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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

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Submitted under Third Circuit LAR 34.1(a)

December 17, 2010

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

(Filed: February 8, 2011)

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OPINION OF THE COURT

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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 
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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:
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(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 
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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.
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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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