2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-14-2010

USA v. Jerome Hines

Precedential or Non-Precedential: Precedential

Docket No. 09-4616

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 09-4616

_____________

UNITED STATES OF AMERICA

 v.

JEROME HINES,

Appellant

 

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 2-08-cr-0133-001)

District Judge: Honorable Dennis M. Cavanaugh

 

Argued

October 7, 2010 

Before: FUENTES, JORDAN and ALDISERT, Circuit 

Judges

(Opinion Filed: December 14, 2010)
2

Richard Coughlin

Federal Public Defender

District of New Jersey

Louise Arkel (ARGUED)

Lisa M. Mack

1002 Broad Street, Fourth Floor

Newark, New Jersey 07102

Attorneys for Appellant

Paul J. Fishman

United States Attorney

District of New Jersey

George S. Leone

Steven G. Sanders (ARGUED)

Assistant United States Attorneys

970 Broad Street

Newark, New Jersey 07102-2535

Attorneys for Appellee

OPINION OF THE COURT

ALDISERT, Circuit Judge

Jerome Hines appeals from a jury conviction for the 

offense of being a felon in possession of a firearm, in 

violation of 18 U.S.C. § 922(g)(1), as well as from the 

sentence imposed by the District Court for the District of 

New Jersey. He presents two issues for our consideration. 

First, he challenges as an abuse of discretion the District 

Court’s denial of his pretrial request for an evidentiary 

.
3

hearing to determine the events leading up to his arrest. 

Second, he contends that the District Court misapplied the 

United States Sentencing Guidelines (“Guidelines” or 

“U.S.S.G.”) when it counted in his criminal history score four

prior convictions under New Jersey Statute § 2C:33-2.1(b). 

Because Hines did not make the case for an evidentiary 

hearing, and because the District Court correctly applied the 

Guidelines, we will affirm its rulings in both respects.

I.

In October of 2007, Police Officers Angel Romero and

Jay Small were patrolling Newark, New Jersey, in a police 

car. According to Romero’s later police report, the two were 

near the corner of Orange and Nesbitt Streets when one or

both of the officers saw Hines—who was about 60 feet 

away—place a handgun into his left jacket pocket. They then 

saw Hines walk along Orange Street and enter a liquor store. 

Because Small was busy with two people he had detained on 

an unrelated matter, Romero used his cellular telephone to 

call Officer William Johnson, who came to the corner of 

Orange and Nesbitt Streets. When Johnson arrived, he and 

Romero entered the liquor store, approached Hines, and 

patted his left jacket pocket. When Romero felt what he 

believed was a weapon, the two officers threw Hines to the 

floor, placed him in handcuffs, and removed from his pocket 

a loaded semi-automatic handgun.

In February of 2008, a federal grand jury returned a 

one-count indictment charging Hines with possession of a 

firearm as a convicted felon. Before trial, Hines filed a 

document captioned “Motion to Suppress of Jerome Hines,”

which alleged that the police reports of his arrest were 

ambiguous and inconsistent, but which did not actually 
4

request suppression of any item of evidence. Rather, the body

of the document requested an evidentiary hearing and 

explained that if a hearing were held, and if sufficient facts 

were to emerge at the hearing, Hines would move to suppress 

the handgun “[a]t that point.” (App. 24.) Page two of the 

motion also included a footnote stating that the contents of 

the police reports from Hines’s arrest were “assumed to be 

true for the purposes of this motion”—i.e., the “Motion to 

Suppress of Jerome Hines.” (App. 15.) The government 

opposed the motion, arguing that because Hines’s footnote 

made the reports’ factual contents undisputed, and because 

those contents established probable cause to arrest Hines, 

there was no basis for an evidentiary hearing regarding 

suppression. Hines filed a reply letter to which he attached a 

short affidavit, the contents of which tended to refute the 

police reports. The District Court denied Hines’s request for a 

hearing and admitted the handgun into evidence. In April of 

2009, a jury found Hines guilty.

At sentencing, the District Court calculated Hines’s

Guidelines range to be 92 to 115 months’ imprisonment, 

based upon a final offense level of 24 and a criminal history 

category of V. It based this calculation in part on four of 

Hines’s five prior convictions for violating New Jersey 

Statute § 2C:33-2.1(b), which makes it a misdemeanor to 

loiter in a public place with intent to obtain or distribute a

controlled substance. The Court imposed a sentence of 92 

months. Hines’s timely appeal challenges the District Court’s 

denial of an evidentiary hearing and the District Court’s 

decision to include his prior convictions in calculating his 

criminal history score.
5

II.

The District Court had jurisdiction under 18 U.S.C. 

§ 3231, because Hines was charged with offenses against the 

United States. We have jurisdiction under 28 U.S.C. § 1291

and 18 U.S.C. § 3742(a)(2).

III.

We review for abuse of discretion a district court’s 

denial of an evidentiary hearing on a motion to suppress. See, 

e.g., In re Terrorist Bombings of U.S. Embassies in East 

Africa, 552 F.3d 157, 165 (2d Cir. 2008) (“The denial of a 

defendant’s request for a suppression hearing is reviewed for 

abuse of discretion.”); United States v. Howell, 231 F.3d 615, 

620 (9th Cir. 2000) (“We review for an abuse of discretion a 

court’s decision whether to conduct an evidentiary hearing on 

a motion to suppress.”); United States v. Glass, 128 F.3d 

1398, 1408-09 (10th Cir. 1997) (“We review a trial court’s 

denial of an evidentiary hearing on a motion to suppress for 

abuse of discretion.”); cf. United States v. Brink

We review de novo a district court’s interpretation of 

the Guidelines,

, 39 F.3d 419, 

425 (3d Cir. 1994) (requiring a hearing where a defendant 

stated a colorable claim that evidence should be suppressed).

United States v. Mateo, 560 F.3d 152, 154 (3d 

Cir. 2009), and we review for clear error the factual findings 

that underpin a district court’s application of the Guidelines,

United States v. McQuilkin, 97 F.3d 723, 727 (3d Cir. 1996). 

The meaning of “loitering,” as used in the Guidelines, is a 

question of law subject to plenary review. See id.; see also

United States v. Lock, 466 F.3d 594, 597-98 (7th Cir. 2006).
6

IV.

Hines contends first that the District Court should have 

held an evidentiary hearing before ruling on his document 

titled “Motion to Suppress of Jerome Hines.” We begin by 

pausing to clarify what a defendant must show before a 

motion to suppress evidence requires an evidentiary hearing. 

Such rulings are ordinarily committed to a district court’s 

sound discretion, which we reverse only in rare 

circumstances. Because we conclude that Hines did not make 

the requisite showing, we will affirm the District Court.

Rule 12(b)(3)(C) of the Federal Rules of Criminal 

Procedure permits defendants to file “motions to suppress 

evidence” before trial, but evidentiary hearings on such 

motions are not granted as a matter of course. See Rule 12(c) 

(the court “may” schedule a motion hearing). To require a 

hearing, a suppression motion must raise “issues of fact 

material to the resolution of the defendant’s constitutional 

claim.” United States v. Voigt, 89 F.3d 1050, 1067 (3d Cir. 

1996). A motion to suppress requires an evidentiary hearing 

only if the motion is sufficiently specific, non-conjectural, 

and detailed to enable the court to conclude that (1) the 

defendant has presented a colorable constitutional claim, and 

(2) there are disputed issues of material fact that will affect 

the outcome of the motion to suppress. See id. at 1067 

(stating a claim is “colorable” if it consists “of more than 

mere bald-faced allegations of misconduct”); Brink, 39 F.3d 

at 424 (requiring an evidentiary hearing when a defendant 

states a colorable claim that the government obtained 

evidence by violating his constitutional rights). At bottom, the 

purpose of an evidentiary hearing in the context of a 

suppression motion is to assist the court in ruling upon a 
7

defendant’s specific allegations of unconstitutional conduct—

its purpose is not to assist the moving party in making 

discoveries that, once learned, might justify the motion after 

the fact. To require an evidentiary hearing, a defendant’s 

suppression motion therefore must set forth and identify for 

the court specific and concrete “issues of fact material to the 

resolution of the defendant’s constitutional claim.” Voigt

In this case, Hines’s motion did not state a claim, raise 

a material fact, or dispute the government’s version of events. 

Given these failures, the District Court acted within its 

discretion in denying an evidentiary hearing.

, 89 

F.3d at 1067.

A.

First, Hines’s motion did not raise a constitutional 

claim. To raise a constitutional claim in a motion to suppress 

evidence, a defendant must state that a violation occurred and 

allege facts that, if true, would support a finding that the 

evidence in question was obtained in violation of the 

defendant’s constitutional rights. Brink, 39 F.3d at 424 

(remanding for a hearing because Brink alleged facts that, if 

true, “could violate a defendant’s rights under the Sixth 

Amendment”). To satisfy this standard, a defendant’s motion 

must identify a constitutional violation at the outset and 

connect it to the evidence in question; bare assertions that an 

as-yet unidentified violation may have occurred, without 

more, will not suffice. See United States v. Coleman

Hines’s motion did not make the required showing. 

Although captioned a “Motion to Suppress of Jerome Hines,”

it did not request suppression of anything at all. Rather, it 

, 149 

F.3d 674, 677 (7th Cir. 1998).
8

requested an evidentiary hearing for the sole purpose of 

determining the events leading to Hines’s arrest. Hines 

apparently hoped that during the hearing he might make 

discoveries that would later permit him to contend that the 

arresting officers violated his constitutional rights:

. . . Jerome Hines respectfully requests that a hearing 

beheld [sic] . . . . It is only with a hearing that the 

events surrounding his arrest can be clarified. . . . At 

that point, Mr. Hines will request that the weapon 

allegedly seized be suppressed and that the indictment 

then be dismissed.

(App. 23-24 (“Motion to Suppress of Jerome Hines”).)

Nowhere did Hines’s motion allege a violation of the 

Fourth Amendment; he merely speculated that he might 

discover one if the facts were “clarified.” And nowhere did 

Hines’s motion ask the District Court to suppress evidence; 

he merely indicated he might make such a request in the 

future. His uncertain speculation fell short of stating a 

constitutional claim because he did not actually “allege[] facts 

that, if true, could violate [his] rights.” Voigt, 89 F.3d at 1067 

(citing Brink, 39 F.3d at 424). Instead, the motion Hines filed 

essentially requested a hearing so that Hines could explore 

whether facts existed that would justify a hearing in the first 

place. The hearing, if granted, would have been an openended discovery expedition, unchained to any concrete 

allegation of fact and unguided by any clear principle of law. 

Because Hines did not meet his burden under Voigt, the 

District Court properly exercised its discretion to deny the 

hearing.
9

B.

Second, Hines’s motion did not ask the District Court

to rule on any material fact. In the context of a suppression 

motion, a defendant may raise an issue of material fact by 

submitting evidence that, if true, would tend to establish an 

essential element of his or her claim that evidence was 

obtained unconstitutionally. See Voigt, 89 F.3d at 1067. Here 

Hines effectively failed to raise any issue of fact. Further, his 

belated attempt to do so in a reply letter was misdirected 

because not every issue of fact is an issue of material

Hines’s motion agreed with the version of events that 

the government put forward. The motion stated in part: “The 

facts of the police documentation are assumed to be true for 

the purposes of this motion only.” The motion summarized

the police documentation:

fact.

According to the incident report, Officers Romero and 

Small were “patrolling the area of Nesbitt St. and 

Orange St.” when they observed Mr. Hines 

“attempting to conceal what appeared to be a black 

hand gun in his jacket left pocket.” At that point, 

Officer Romero watched Mr. Hines enter a liquor store 

on Orange Street and called for back-up to meet at 

Nesbitt and Orange Streets. Officer Johnson arrived,

and he and Officer Romero entered the liquor store and 

located Mr. Hines. They approached Mr. Hines, patted 

him down, and allegedly recovered a gun and bullets.

(App. 15 (“Motion to Suppress of Jerome Hines”) (internal 

citations to police reports omitted)).

Hines therefore conceded that, for the purposes of 
10

evaluating his motion, the District Court was to treat as true 

the events described in the police report, namely that (1) the 

officers saw Jerome Hines (2) display and then conceal a 

handgun in his pocket, and then (3) walk into a liquor store. 

These statements, if true, support the officers’ conduct 

because they epitomize the essential elements of a 

permissible stop-and-frisk. See Terry v. Ohio, 392 U.S. 1, 27 

(1968) (holding that an officer may make “a reasonable 

search for weapons for the protection of the police officer, 

where he has reason to believe that he is dealing with an 

armed and dangerous individual, regardless of whether he has 

probable cause to arrest the individual for a crime”). Because 

Hines expressly instructed the District Court to assume those 

statements were true, and because if true they justified the 

officers’ actions, Hines did not dispute the legality of the 

officers’ conduct. Because he did not dispute the events that 

underpinned the legality of the officers’ conduct, he did not 

show that “there [were] disputed issues of material fact which 

[would] affect the outcome of the motion.” Coleman

After Hines filed his motion and the government 

responded, Hines submitted to the District Court a reply 

letter, to which he attached for the first time an affidavit 

tending to refute the police officers’ version of events. The 

officers’ reports stated they saw Hines display a handgun on 

Orange Street, and Hines’s affidavit stated, among other 

things, “At no time on October 23, 2007, did I hold or 

otherwise have a gun in plain sight while on Orange Avenue 

[sic] in Newark.” (App. 62.) Hines contends that, by creating 

conflicting versions of events, the affidavit operated to 

dispute material elements of the officers’ reasonable 

suspicion to detain, and probable cause to search, him.

, 149 

F.3d at 677. Thus, he failed to raise an issue of material fact.
11

The affidavit failed to create an issue of material fact, 

however, because to do so there must be a claim for the 

evidence to be “material to” in the first place. And, to be 

“material,” a fact must bear upon an essential element of the 

legal claim before the court. In this case, Hines did not assert 

the sine qua non of a suppression motion: he did not assert 

that evidence was so tainted by a constitutional violation that 

it should be suppressed. To be sure, Hines did contend before 

this Court that the affidavit tended to negate the officers’ 

reasonable suspicion to detain him, but the actual text of his 

motion in the District Court failed to challenge the 

government on those points. The statements in Hines’s 

affidavit—though they may have supported a claim that 

evidence should be suppressed—bore no legal relationship to 

the disposition of his motion, because the motion did not ask 

the District Court to suppress the handgun. Simply put, an 

affidavit cannot be material to a claim that is not stated. 

Accordingly, he did not create an issue of material fact. The 

affidavit had no bearing on the question before the District 

Court, and has no bearing on our review of its discretionary 

ruling. Given that there was no material factual dispute to 

resolve, there was no need for an evidentiary hearing. See

Coleman

We emphasize that the procedure for a defendant who 

seeks an evidentiary hearing on a suppression motion is to 

(1) state a colorable legal claim, (2) identify facts material to 

that claim, (3) show why the facts are disputed, and then 

(4) request a hearing to resolve the dispute. From our analysis 

it does not follow, however, that the District Court could not

have exercised its discretion to hold a hearing if it wanted to 

do so. We hold only that, given the motion’s defects, the 

, 149 F.3d at 677. The District Court was thus within 

its discretion when it declined to hold one.
12

District Court acted within its discretion when it declined to 

hold a hearing.

V.

Hines contends next that the District Court incorrectly 

calculated his criminal history score when it counted his four

prior convictions under New Jersey Statute § 2C:33-2.1(b)

(“Loitering for purpose of illegally using, possessing or 

selling controlled substance”). The Sentencing Guidelines 

provide that loitering offenses “and offenses similar to them, 

by whatever name they are known,” shall not be counted in 

determining a defendant’s criminal history score. U.S.S.G. 

§ 4A1.2(c)(2). Hines’s position is that the District Court 

should not have counted his convictions under § 2C:33-2.1(b)

because they are “similar to” loitering under U.S.S.G. 

§ 4A1.2(c)(2).

Because the core of our inquiry is whether New Jersey 

Statute § 2C:33-2.1(b) is “similar to” loitering, as the word 

appears in U.S.S.G. § 4A1.2(c)(2), we begin by examining 

and defining the meaning of each. We then apply a five-part 

balancing test pursuant to a recent amendment by the 

Sentencing Commission and conclude that § 2C:33-2.1(b) is 

not “similar to” loitering, as used in the Guidelines.

A.

Four of Hines’s prior convictions are under § 2C:33-

2.1(b), which prohibits “[l]oitering for [the] purpose of 

illegally using, possessing or selling [a] controlled 

substance.” More particularly, the statute provides:
13

A person, whether on foot or in a motor vehicle, 

commits a disorderly persons offense if 

(1) he wanders, remains or prowls in a public place 

with the purpose of unlawfully obtaining or 

distributing a controlled dangerous substance or 

controlled substance analog; and 

(2) engages in conduct that, under the 

circumstances, manifests a purpose to obtain or 

distribute a controlled dangerous substance or 

controlled substance analog.

N.J. Stat. Ann. § 2C:33-2.1(b). The New Jersey statute 

therefore targets “loitering plus”—by which we mean in this 

case loitering combined with the specific intent to obtain or 

distribute a controlled substance unlawfully—and not 

“loitering simpliciter

The word “loitering” in the Guidelines, in contrast, 

refers to loitering

,” by which we mean simple loitering, 

without qualification.

simpliciter. We so conclude for three

reasons. First, the Guidelines’ plain text says only “loitering,”

and nothing more. § 4A1.2(c)(2). Black’s Law Dictionary

defines “loitering” as the “criminal offense of remaining in a 

certain place (such as a public street) for no apparent reason.”

Black’s Law Dictionary 1027 (9th ed. 2009). The Model 

Penal Code’s description is substantially similar: “A person 

commits a violation if he loiters or prowls in a place, at a 

time, or in a manner not usual for law-abiding individuals 

under circumstances that warrant alarm for the safety of 

persons or property in the vicinity.” Model Penal Code 

§ 250.6 (2001). Thus, the plain text of the Guidelines suggests 

that what they describe is loitering simpliciter.
14

Second, the word “loitering” appears in the Guidelines 

among a list predominated by petty status offenses, such as

hitchhiking, truancy, public intoxication, and vagrancy. This

strongly suggests that, in drafting the Guidelines, the 

Commission was contemplating loitering in the least-culpable 

sense. See United States v. Martinez

Third, although Hines urges us to treat the word 

“loitering” in the Guidelines as describing more than loitering

, 905 F.2d 251, 253 (9th 

Cir. 1990) (concluding that § 4A1.2(c)(2) comprises offenses 

of “minor significance”). To read “loitering” to include

specific intent crimes (such as New Jersey Statute § 2C:33-

2.1(b)) would lend it a meaning disharmonious with its 

statutory context.

simpliciter, to do so would place us at odds with one of the 

paramount purposes of the Sentencing Reform Act of 1984, 

which is to “provide certainty and fairness in meeting the 

purposes of sentencing, avoiding unwarranted sentencing 

disparities among defendants with similar records.” 28 U.S.C. 

§ 991(b)(1)(B). An analysis that construes the Guidelines’ use 

of “loitering” to embrace more than loitering simpliciter

would create uncertainty and likely would produce disparate 

results. Our survey of loitering offenses under statutes across 

the country finds a panoply of laws as varied as the reasons 

people loiter. In New York, for example, loitering statutes 

range from loitering to possess or use drugs, N.Y. Penal Law

§ 240.36 (McKinney 2008), to loitering for prostitution, id.

§ 240.37. Similarly, in California, to “‘[l]oiter’ means to 

delay or linger without a lawful purpose for being on the 

property and for the purpose of committing a crime as

opportunity may be discovered.” Cal. Health & Safety Code 

§ 11530. California applies this broad definition in 

prohibiting not only loitering for the purpose of buying or 
15

selling controlled substances, id. § 11532, but also loitering 

by minors near gambling establishments, Cal. Bus. & Prof. 

Code § 19921, loitering near posted industrial property, Cal. 

Penal Code § 554, loitering while peering into windows, id.

§ 647(i), loitering about adult schools, id. § 647b, loitering 

near children’s schools by sex offenders, id. § 653b, loitering 

for prostitution, id. § 653.22(a), loitering in obstruction of 

bicycle pathways, Cal. Veh. Code § 21211(a), and loitering in 

or around public transit facilities, Cal. Pub. Util. Code 

§ 120451. Suffice it to say, to read “loitering” under the 

Guidelines more broadly than the straightforward definition 

implied by the plain text would raise more difficulties than it 

would resolve—a result that would hardly lend “certainty and 

fairness” to our inquiry. 28 U.S.C. § 991(b)(1)(B). In our 

view, the vast array of loitering statutes, and the lack of 

indication that the Commission intended the Guidelines to 

refer to all or any of them, means that the only fair and certain 

way to avoid unwarranted disparities is to hold that the 

Guidelines mean what the Guidelines say: the simple status 

offense of loitering simpliciter

In sum, we conclude that the New Jersey statute

targets “loitering plus,” in that a person violates it only if he 

“wanders, remains or prowls in a public place” while 

manifesting a specific intent to buy or sell a controlled or 

dangerous substance. “Loitering,” as that term is used in the 

Guidelines, however, means only loitering 

.

simpliciter

B.

. A 

person loiters, within the meaning of the Guidelines, merely 

by wandering, prowling, or remaining in a public place. 

Turning to the application of the Guidelines, the 

default rule is that courts, when calculating a criminal history 
16

score, should count prior misdemeanor convictions except 

when the Guidelines expressly provide for exclusion. 

U.S.S.G. § 4A1.2(c). To this end, the Guidelines expressly 

list nine types of misdemeanor and petty offenses, stating that 

they, “and offenses similar to them, by whatever name they 

are known, are never counted.” § 4A1.2(c)(2). The list 

includes “[l]oitering.”

The question in this case turns on “similar to.”

Id.

Id. Our 

decision in United States v. Elmore, 108 F.3d 23, 27 (3d Cir. 

1997), has traditionally guided courts in this judicial circuit in 

their analysis of similarity under § 4A1.2(c)(2). In Elmore, 

we were asked to determine whether a defendant’s prior 

convictions for possession of drug paraphernalia, assault, and 

harassment, should have been counted in his criminal history 

score, or whether they were “similar to” disorderly conduct, 

which the Guidelines explain should not be counted. Id. at 25. 

Stating that the “apparent concern of the Guidelines” was that 

courts might count an offense identical to those in the 

enumerated list, merely because the offense happened to go 

by a different name under state law, we held that courts 

should evaluate similarity by looking to the elements of the 

offense itself, rather than simply the name by which it is 

known. Id.

We recognized in 

at 27.

Elmore that not all of our sister 

Courts of Appeals shared our approach. We noted that when 

the Court of Appeals for the Fifth Circuit in United States v. 

Hardeman, 933 F.2d 278 (5th Cir. 1991), was asked whether 

driving without insurance was “similar to” driving without a 

license, it used a multi-factor approach that looked to “all

possible factors of similarity,” including the respective 

punishments, levels of culpability involved, and the degree to 
17

which commission of the offenses indicated a likelihood of 

recurring criminal conduct. Elmore, 108 F.3d at 27. In a 

similar inquiry, the Court of Appeals for the Seventh Circuit 

considered the Hardeman factors, but emphasized the 

“circumstances surrounding” and the “factual basis for” the

defendant’s prior conduct, as well as the amount of 

punishment he actually received. United States v. Booker, 71 

F.3d 685, 690 (7th Cir. 1995). The Court of Appeals for the 

Ninth Circuit, in contrast, asked whether the conduct 

underlying a prior conviction was “universally regarded as 

culpable,” and whether it was a predictor of recurring 

criminal conduct. United States v. Martinez

In 2007, the Sentencing Commission took note of the 

divergent approaches in the Courts of Appeals and published 

an amendment designed to unify them. The Guidelines now 

prefer 

, 905 F.2d 251, 

254 (9th Cir. 1990).

Hardeman’s broad, multi-factor approach. U.S.S.G. 

§ 4A1.2 cmt. n.12(A). As framed by the Commission, those 

factors are: “(1) a comparison of punishments imposed for 

listed and unlisted offenses; (2) the perceived seriousness of 

the offense as indicated by the level of punishment; (3) the 

elements of the offense; (4) the level of culpability involved;

and (5) the degree to which the commission of the offense

indicates a likelihood of recurring criminal conduct.” Id. Put 

another way, our inquiry is now “Elmore

1.

-plus,” in that we 

continue to consider the elements of the offenses, but now 

examine four other factors as well. We consider them in turn.

The Guidelines instruct us to begin by comparing the 

punishments imposed for the offense listed in the Guidelines

(i.e., “loitering”), and the offense for which the defendant has 
18

been convicted (i.e., § 2C:33-2.1(b)). U.S.S.G. § 4A1.2 cmt. 

n.12(A)(i).

Violations of § 2C:33-2.1(b) carry a potential 

punishment of six months in jail and a $1000 fine. N.J. Stat. 

Ann. §§ 2C:43-3(c), 2C:43-8. Simple loitering, however, 

carries no punishment in New Jersey because New Jersey has 

repealed its basic loitering law. See

We agree, but not for the reason the government 

suggests. Section 4A1.2(c)(1) of the Guidelines, which 

precedes the section in which “loitering” appears, explains 

that misdemeanor offenses are not counted unless “the 

sentence was a term of probation of more than one year or a 

term of imprisonment of at least thirty days.” Thus, a

misdemeanor that might qualify for exclusion nonetheless is 

countable under the Guidelines if it involves more than thirty

days’ imprisonment or one year of probation. The Guidelines 

therefore suggest that offenses punishable by more than thirty 

days’ imprisonment are not “similar to” offenses punishable 

by thirty days or less. 

N.J. Stat. Ann. 

§ 2A:170-1 (repealed Sept. 1, 1979). Because “no 

punishment” is different from “six months in jail and a $1000 

fine,” the government would have us conclude the offenses 

are not similar.

Because the potential six-month jail sentence for 

violating § 2C:33-2.1(b) is greater than the thirty-day line the 

Commission drew, we conclude § 2C:33-2.1(b) is not 

“similar to” loitering simpliciter

2.

under the first factor.

The Guidelines next instruct us to examine how 
19

serious Hines’s prior offenses were, as indicated by the 

punishment he actually received. U.S.S.G. § 4A1.2 cmt. 

n.12(A)(ii); Hardeman, 933 F.2d at 282 (examining the 

punishment actually imposed for prior offenses). This factor, 

as the government’s brief concedes, redounds in Hines’s

favor: he received a series of sentences ranging from 10 to 90

days in jail, all of which were suspended. The light penalties

imposed for his offenses were therefore highly similar to the 

penalties one would receive for committing the type of minor 

offense that the Guidelines do not count. See

3.

§ 4A1.2(c)(2). 

The second factor therefore suggests that § 2C:33-2.1(b) is

“similar to” loitering.

The third factor under the Guidelines’ five-part inquiry

requires us to compare the elements of loitering simpliciter

with the elements of § 2C:33-2.1(b). U.S.S.G. § 4A1.2 cmt. 

n.12(A)(iii). Even though New Jersey state law defines

Hines’s predicate offenses and sentence, the classification of 

each offense as excluded or included under U.S.S.G. 

§ 4A1.2(c) is a matter of federal law. Booker, 71 F.3d at 688-

689. In construing the elements of the respective statutes, we

therefore interpret New Jersey’s statute according to state law

and the Guidelines according to federal law. Elmore, 108 

F.3d at 25 (citing Taylor v. United States

New Jersey Statute § 2C:33-2.1(b) targets people who 

loiter in public for the purpose of buying or selling controlled

or dangerous substances. It requires a specific intent—

subjectively held and objectively manifested—in addition to 

the mere act of wandering, remaining, or prowling in a public 

place. It therefore targets “loitering plus” the specific intent to 

, 495 U.S. 575 

(1990)).
20

engage in a drug crime.

As we have discussed above, “loitering,” within the 

meaning of the Guidelines, requires no mens rea element at 

all. It is mere loitering simpliciter

Hines makes two arguments to the contrary. The first 

is based on 

, which is little more than

suspiciously remaining in a public place, and requires no 

specific intent element at all. Given the presence of a specific 

intent element in the New Jersey statute, the elements of the 

offenses are not “similar to” each other for the purposes of 

this portion of the Guidelines’ balancing test.

City of Chicago v. Morales, 527 U.S. 41, 57-58 

(1999), in which the Supreme Court acknowledged that state 

courts had “uniformly invalidated” for vagueness laws that 

did not combine loitering simpliciter with some other overt

act or evidence of criminal intent. Meanwhile, the Guidelines, 

Hines points out, continue to characterize loitering as an 

“offense.” § 4A1.2(c)(2). Hines contends that because simple 

loitering cannot be criminalized after Morales, and because 

the Guidelines are concerned only with “offenses,” the word 

“loitering” in the Guidelines must mean “loitering plus.”

Under that approach, he urges us to hold that his convictions 

under the New Jersey statute must be “similar to” the 

“offense of” loitering under the Guidelines, and therefore not 

counted in his criminal history score. Although we are aware 

that other Courts of Appeals have been persuaded by this 

argument, e.g., United States v. Lock, 466 F.3d 594, 602 (7th 

Cir. 2006) (holding that after Morales, “loitering” under the 

Guidelines is similar to loitering with intent to purchase or 

sell drugs), we are not. To accept that argument is to accept

the premise that the 1999 Morales decision changed the 

meaning of the word “loitering” as it was published in the 
21

Guidelines in 1987. That we will not do. When the 

Commission described the offense of loitering in 1987, it was

describing loitering simpliciter; that after Morales statutes 

criminalizing simple loitering may be unconstitutionally 

vague does not change the fact that loitering simpliciter was 

an offense when the Commission drafted the Guidelines. The 

concept the Guidelines described then remains the concept 

they describe now: loitering simpliciter. Cf. Harris v. United 

States, 536 U.S. 545, 556 (2002) (explaining that changes in 

constitutional law do not change the meaning of statutory 

terms). Section 2C:33-2.1(b), which targets conduct 

substantially more culpable than “loitering” as the Guidelines 

employed the term in 1987, contains a specific intent element 

that is absent from loitering simpliciter

He also contends that because § 2C:33-2.1 is similar to 

other loitering statutes in force across the United States, it 

must also be similar to “loitering” as the word appears in the 

Guidelines. Hines misapprehends the relevant question,

however, which is one of federal—not state—law.

. We remain convinced 

that this renders them dissimilar under this portion of our 

inquiry.

See

Elmore, 108 F.3d at 25. Even if it were true that § 2C:33-2.1 

is “similar to” all state loitering statutes across the country 

(and we have our doubts), it would not follow that the New 

Jersey statute is “similar to” what the Guidelines mean, as a 

matter of federal law. What Hines must show under this

portion of the balancing test is that the elements of the New 

Jersey state statute are similar to the elements of the federal 

definition of loitering simpliciter

In sum, because the elements of § 2C:33-2.1(b)

. State statutes from other 

jurisdictions cannot help him to do so.
22

include a specific intent element that is absent from the nonculpable status crime described by loitering simpliciter

4.

, we 

hold that the elements of § 2C:33-2.1(b) are not “similar to”

the elements of loitering under the Guidelines.

We next turn to a comparison of the level of 

culpability involved when loitering in violation of § 2C:33-

2.1(b) versus “loitering” as the Guidelines use the term. 

§ 4A1.2 cmt. n.12(A)(iv). 

Culpability is another way of describing the mens rea a 

statute requires of each material element of an offense. See

United States v. Zats, 298 F.3d 182, 189 (3d Cir. 2002) 

(describing mens rea as comprising “level[s] of culpability”); 

Black’s Law Dictionary 435 (9th ed. 2009) (citing Model 

Penal Code § 2.02 (2001)). Courts of Appeals in other circuits 

generally hold that if the mens rea of two offenses are 

divergent, the offenses are not similar. E.g., United States v. 

Hernandez-Hernandez, 431 F.3d 1212, 1222 (9th Cir. 2005). 

This is consistent with our own decision in Elmore, in which 

we held that if the mens rea elements of two offenses are 

dissimilar, so too are the offenses themselves. Elmore, 108 

F.3d at 25. We must therefore compare the mens rea required 

to violate § 2C:33-2.1(b) with the mens rea requirement of

loitering simpliciter

In this case, loitering

.

simpliciter requires merely being 

in a public place with no apparent purpose. Black’s Law 

Dictionary 1027 (9th ed. 2009). It therefore has no specific 

intent. In contrast, § 2C:33-2.1(b) requires waiting in a public 

place with the specific purpose and intent to buy, sell, or 

possess controlled substances. The New Jersey statute thus 
23

contains a specific intent element that distinguishes it from 

loitering simpliciter

5.

. Accordingly, we conclude that the 

culpability requirements are divergent enough to render the 

offenses dissimilar under this portion of the Guidelines’ 

balancing test.

The final factor the Guidelines ask us to consider is the 

degree to which Hines’s convictions under § 2C:33-2.1(b)

indicate a likelihood of recurring criminal conduct. U.S.S.G. 

§ 4A1.2 cmt. n.12(A)(v).

Because a primary goal of the Guidelines is to reduce 

recidivism, see 18 U.S.C. § 3553(a)(2), the more a violation 

indicates recurring criminal conduct, the more likely the 

Guidelines are to include it in a prior history score. 

Accordingly, the less a violation of § 2C:33-2.1(b) indicates

recurring criminal conduct, the more likely it is “similar to” a 

non-countable offense like loitering simpliciter

A significant part of § 2C:33-2.1(b) addresses 

controlled substances. It is, in essence, a drug statute—

indeed, one cannot violate the statute without objectively 

manifesting a subjective intent to purchase or sell controlled 

substances. The Sentencing Commission has determined that 

convictions for crimes involving illegal narcotics correlate 

strongly to recidivism. 

. 

See U.S. Sentencing Comm’n, 

Measuring Recidivism: The Criminal History Computation of 

the Federal Sentencing Guidelines, 13, 29-30 (2004) (finding 

that 21.2% of defendants sentenced for drug trafficking 

recidivate). Hines thus stands convicted under a statute that 

targets people who intend to buy or sell controlled substances, 

and the Sentencing Commission has indicated that such 
24

people, once convicted, tend to recidivate. This leads us to 

conclude, based on the Guidelines, that a violation of 

§ 2C:33-2.1(b) “indicates a likelihood of recurring criminal 

conduct,” § 4A1.2 cmt. n.12(A)(v), a conclusion which finds 

support in Hines’s very status as a five-time repeat offender 

under this statute alone.

On balance, of the five factors set out in Hardeman and 

endorsed by the Sentencing Commission, only one—the 

degree of punishment Hines received for his violations—

suggests that his offenses are “similar to” loitering. That is 

not enough in this case to overcome the other four. We hold 

that § 2C:33-2.1(b) is not “similar to” loitering under the 

Guidelines, which describe loitering simpliciter

* * * * *

. Accordingly, 

we will affirm the District Court’s application of the 

Guidelines.

The judgment of the District Court will be affirmed.