2010 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

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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

- 01 3 3

- 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, N ew J ersey 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 Judg e

Jerome Hines appeals f rom 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 th e 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 e vents leading up to his arrest. Second, he contends that the District Court misapplied the United States Sentencing Guideli nes (“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.

I n October of 2007, Police O fficers 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 corne r 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. Th ey then saw Hines walk along Orang e 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 Nes bitt 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 r emov ed from his pocket

a loaded semi

- automatic handgun

. In February of 2008

, a federal gran d jury returned a

one

- count i ndictment 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 actually4 request suppression of any item of evidence. Rather, t he body of the document requ ested 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 governm ent 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 rep orts. The District Court denied Hines’s request for a hearing and admitted the h andgun 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 f inal offense level of 24 and a criminal history

c ate gory of V. It based this calculation in part on four of Hines’s f ive 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 d enial of an evidentiary hearing and the District Court’s decision to include his prior convictions in calculating his criminal h istory s core.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 u nder 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a) (2)

.

III.

We re view for abuse of discretion a d istrict c ourt’s denial of an evidentiary h earing 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. Unite d States v. Brink

We review de novo a district court’s i nterpretation 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 d istrict c ourt’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 reve rse 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 Rule s of Criminal Procedure permits defendants to file “ motions to suppress evidence ” before trial, but e videntiary 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 t he 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 viola ting 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 a7 defendant’s specific allegations of unconstitutional conduct

— its purpose is not to assist the m oving party in making discoveries that, once learned, might justify the motion after the fact. T o require an evidentiary hearing, a defendant’s suppression motion therefore must set forth and identify for the court specific and concrete “ issues of fact mat erial 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 act ed within its discretion in deny ing 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 t hat, 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 r ights 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 assertion s that an

as

- yet unidentified violation may have occurred, wi thout more, will not suffice. See United States v. Coleman

Hines’s m otion 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 offic ers 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 wea pon 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 a ctually “ allege [] facts that, if true, could violate [his] rights. ” Voigt , 89 F.3d at 1067 ( citing Brink , 39 F.3d at 424). Instead, t he 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 open

ended 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 fai led 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 m otion agreed with the version of events that th e 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 summarize d 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 Street s . Officer Johnson arrived

, and he and Officer Romero entered the liquor store and located Mr. Hines. They app roached Mr. Hines, patted him down, and allegedly recovered a gun and bullet s

. ( App. 15 ( “ Motion to Suppress of Jerome Hines ” ) (internal citations to police reports omitted) )

. Hines therefore conceded that, for the purposes of10 evaluating his motion, the Di strict 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 o fficers’ 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 h as 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, amon g 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 materi al 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 plac e. And, t o 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 violat ion 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
governme nt 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 d iscretionary 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 di spute. From our analysis it does not follow, however , that the District C ourt 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 whe n 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 convict ions 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 defe ndant’s criminal history score . U.S.S.G. § 4A1.2(c)(2). Hines’s position is that the District Court should not have co unted 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 b y 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, possess ing o r selling [a] controlled substance. ” More particularly, t he 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

, refer s to loitering , ” by which we mean simple loitering, without qualification.

simpliciter . We so conclude for three reasons. First, the G uidelines ’ 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 (9 th ed. 200 9 ). The Model Penal Code’s descr iption 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 t hat 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 Guideli nes 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 C ommission 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 meani ng 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 wit h similar records. ” 28 U.S.C. § 991(b)(1)(B). An analysis that constru es the Guidelines ’ use of “ loitering ” to embrace more than loitering simpliciter would create uncertain ty and likel y would produce disparate results. O ur survey of loitering offenses under statutes across the country finds a panoply of laws as varied as th e 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) , t o loitering for prostitution, id. § 240.37. Similarly, i n 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 fo r the purpose of buying or15 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 loi tering in

or a round 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 statu t e targets “ loiter ing 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 Guide lines, 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, t he default rule is that courts , when calculating a criminal history16 score, should count prior misdemeanor convictions except when the Guidelines ex pressly 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 ] oiter ing. ”

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

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 paraphernal ia, 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 C ourts 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 27 8 (5th Cir. 1991), was as ked 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 to17 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 consider ed the Hardeman factors

, but emphasiz ed 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 Ci rcuit, 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 200 7 , 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 25 1

, 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 fac tors are: “ (1 ) a comparison of punishments imposed for lis ted and unlisted offenses ; (2 ) the perceived seriousness of the offense as indicated by the level of punishment ; (3 ) th e elements of the offense ; (4 ) the level o f culpability involved ; and (5 ) the degree to whic h the commission of the offense indicates a likelihood of recurri ng 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.

T he 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 has18 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 f ine. N.J. Stat. Ann. §§ 2C:43

- 3 ( c )

, 2C:43

- 8

. Simple loitering, however, carries no punishment in New Jerse y because New Jersey has repealed its basic l oitering 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 mi ght qualify for exclusion nonet heless is
counta ble under the Guidel ines if it involves more than thirty days’ imprisonment or one year of probati on. 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.

B ecause the potential six

- month jail se ntence for violating § 2C:33

- 2.1(b) is greater tha n 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 how19 serious Hines’s prior offenses were, as indicated by the
pun ishment 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 s entences ranging from 10 to 90 days in jail , all of which were suspended. The light penalt ies 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 coun t. See

3. § 4A1.2(c)(2). The second factor therefore sug gests 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 e lements 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 offense s 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. I n 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, “ l oitering,” 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. G iven the presence of a specific intent el ement in the New Jersey statute, the elements of the offenses a re 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 over t act or evidence of criminal intent

. Meanwhile, the Guidelines, Hines points out, conti nue 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 conviction s 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 C ourts of Appeals have b een 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 o r sell dr ugs) , 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 the21 Guidelines in 1987

. That we will not do. When the Commission described the offense of l oitering in 1987, it was describing loitering simpliciter ; that after Morales statutes criminalizing simple loitering may be unconstitutionally
vague does no t change the fact that loitering simpliciter was an offense when the Commission drafted the Guide lines. The concept the G uidelines described then remain s 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 statuto ry 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

H e 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 the m 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 f ollow that the New Jersey statute is “ simil ar 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 s tatute are similar to the elements of the federal definition of loitering simpliciter

I n sum, because the elements of § 2C:33

- 2.1(b) . S tate st atutes from other jurisdictions can not help him to do so.22 include a specific intent element that is absent from the non

culpable status crime described by loitering simpliciter

4. , we hold that the e lements 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 Guid elines 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 C ir. 2002) (describing mens rea as comprising “level[s] of culpability”); Black’ s Law Dictionary 435 ( 9 th ed. 2 00 9 ) (citing Model Penal Code § 2.02 (2001) )

. Courts of Appeals in other circuits generally hold that if the mens rea of two offenses are divergen t, 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, l oitering . simpliciter requires merely being in a pu blic place with no apparent purpose. Black’s Law Dictionary 1027 (9 th ed. 200 9 ). 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 su bstances . The New Jersey statute thus23 cont ains a specific intent element that distinguishes it from loitering simpliciter

5. . Accordingly, we conclude t hat the culpability requirements are divergent enough to render the offenses d issimilar under this portion of the Guidelines ’ balancing test

.

The final factor the Guidelines ask us to co nsider is the degree to which Hines’s convic tion s under § 2C:33

- 2.1(b) indicate a likelihood o f recurring c riminal conduct. U.S.S.G. § 4A1.2 cmt. n.12(A)(v).

Because a primar y 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 significa nt part of § 2C:33

- 2.1(b) addresses controlled substances. It is, in essence , a drug statute

— i ndeed, 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 such24 people, once c onvicted, tend to recidivate. This leads us to conclude , based on the Guidelines, that a vi olation of § 2C:33

- 2.1(b) “ indica tes a likelihood of recurring criminal conduc t, ” § 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 , o f the five factors set out in Hardeman and endorsed by t he Sentencing Commission, only one

— the degree of punishment Hines received for his violations

— suggests that his offenses are “ similar to ” loitering. Th at 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.