1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-28-1997

United States v. Elmore

Precedential or Non-Precedential:

Docket 96-3462

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Recommended Citation

"United States v. Elmore" (1997). 1997 Decisions. Paper 51.

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1

 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 

 No. 96-3462 

 

 UNITED STATES OF AMERICA 

 Appellee 

 

v. 

 RAYMOND ELMORE 

 Appellant 

 

 On Appeal from the United States District Court 

 for the Western District of Pennsylvania 

 (D.C. No. 95-cr-00117) 

 

 Submitted Pursuant to Third Circuit LAR 34.1(a) 

 February 10, 1997 

 BEFORE: GREENBERG, COWEN and McKEE, 

 Circuit Judges

 (Filed February 28, 1997) 

Bonnie R. Schlueter, Esq. 

Office of United States Attorney 

633 United States Post Office 

 and Courthouse 

Pittsburgh, PA 15219 

 Counsel for Appellee 

Thomas J. Michael, Esq. 

Law Offices of Thomas J. Michael 

660 USX Tower 

Pittsburgh, PA 15219 

 Counsel for Appellant 

 

 OPINION 

 

COWEN, Circuit Judge. 
2

 Raymond Elmore appeals from a judgment sentencing him to 108 

months imprisonment to be followed by 5 years of supervised 

release. We will affirm. 

I.

 On August 9, 1995, a three-count indictment was filed in the 

United States District Court for the Western District of 

Pennsylvania charging Raymond Elmore with distributing and 

possessing with intent to distribute cocaine and cocaine base on 

three different occasions in violation of 21 U.S.C. § 841. 

Elmore entered a plea of guilty to count three of the indictment. 

 Pursuant to a plea agreement with the government, counts one and 

two were subsequently dismissed. 

 The district court held a sentencing hearing on August 2, 

1996. It assigned one criminal history point for each of four 

prior offenses1 it found that Elmore had committed, two of which 

are at issue here. The first occurred in Pennsylvania in 1988 

when, according to the Pre-Sentence Investigation (“PSI”), Elmore 

beat one Sherry Adams about the head and face, and threatened her 

with further violence. The PSI notes that when called to the 

scene, police noticed a fresh scratch on Adams’ face. Elmore 

subsequently pled guilty to one count of harassment. 

 In the second incident, which occurred in Florida, police 

witnessed Elmore making threats against his wife and discovered a 

makeshift crack pipe in his car. There also were allegations 

 

 

1The court did not consider an additional prior offense on 

the ground that it was too remote in time pursuant to United 

States Sentencing Guidelines § 4A1.2(e)(4). 
3

that Elmore struck his wife at her place of employment. Elmore 

subsequently pled “no contest” to possession of drug 

paraphernalia and assault. 

 The district court additionally assigned two criminal 

history points on the basis of an outstanding warrant issued in 

March of 1992 by authorities in Palm Beach County, Florida. With 

a total offense level of 29 and a Criminal History Category of 

III, the applicable guideline range was 108 to 135 months 

imprisonment. The district court imposed a sentence of 108 

months imprisonment and 5 years of supervised release. This 

appeal followed. 

II.

 Pursuant to United States Sentencing Guidelines § 4A1.1(c), 

in determining a defendant’s criminal history category the 

district court is authorized to add one additional point, up to a 

maximum of four, for each of a criminal defendant’s prior 

convictions. However, § 4A1.2(c)(1) excludes from consideration 

convictions for certain enumerated crimes and “offenses similar 

to them, by whatever name they are known” (except in 

circumstances not present here). One of those enumerated crimes 

and offenses that are excluded is “disorderly conduct.” 

 Elmore contends that the offenses for which he was convicted 

were sufficiently “similar” to disorderly conduct to warrant 

exclusion. He further contends that one must look to the actual 

facts underlying each conviction, not just the fact of conviction 

and the elements of the offense as statutorily defined, to 

determine whether each is “similar to” disorderly conduct. 
4

 Our review of the district court’s construction of terms 

included in the Sentencing Guidelines, a question of law, is 

plenary. See United States v. McQuilkin, 97 F.3d 723, 727 (3d 

Cir. 1996). We determine the meaning of “disorderly conduct” 

pursuant to federal, not state, law. See United States v. Unger, 

915 F.2d 759, 762-63 (1st Cir. 1990); United States v. Martinez, 

905 F.2d 251, 253 (9th Cir. 1990); see also Taylor v. United 

States, 495 U.S. 575, 592, 110 S.Ct. 2143, 2155 (1990). 

“Disorderly conduct” is used to “signify[] generally any behavior 

that is contrary to law, and more particularly such as tends to 

disturb the public peace or decorum, scandalize the community, or 

shock the public sense of morality.” BLACK’S LAW DICTIONARY 469 

(6th ed. 1990). Pursuant to MODEL PENAL CODE § 250.2(1) (1962): 

A person is guilty of disorderly conduct if, 

with purpose to cause public inconvenience, 

annoyance or alarm, or recklessly creating a 

risk thereof, he: 

(a) engages in fighting or threatening, or in 

violent or tumultuous behavior; or 

(b) makes unreasonable noise or offensively 

coarse utterance, gesture or display, or 

addresses abusive language to any person 

present; or 

(c) creates a hazardous or physically 

offensive condition by any act which 

serves no legitimate purpose of the 

actor. 

“Public” means affecting or likely to affect 

persons in a place to which the public or a 

substantial group has access; among the 

places included are highways, transport 

facilities, schools, prisons, apartment 

houses, places of business or amusement, or 

any neighborhood. 

We accept these as adequate descriptions of disorderly conduct 
5

for purposes of federal law. 

 Several of our sister circuits have held that, where a state 

definition of a crime includes both activities that are 

includable and those that are excludable under U.S.S.G. §§ 

4A1.1(c) and 4A1.2(c)(1), the court must look to the defendant’s 

actual conduct to determine whether it constituted an excluded 

offense. See United States v. Ward, 71 F.3d 262, 263-64 (7th 

Cir. 1995); United States v. Kemp, 938 F.2d 1020, 1023-24 (9th 

Cir. 1991). Elmore urges that his convictions for harassment and 

for assault and possession of drug paraphernalia were both 

pursuant to statutes that overlap with the definition of 

disorderly conduct. As a result, Elmore contends that the 

district court was obligated to look into the facts underlying 

his convictions in order to determine whether they were, in fact, 

for disorderly conduct. We disagree. 

 As the government notes, the definition of “harassment” in 

Pennsylvania criminalizes certain activity when done, inter alia, 

“with intent to harass, annoy or alarm another person.” 18 

Pa.C.S.A. § 2709 (emphasis added). By contrast, “disorderly 

conduct,” both in Pennsylvania and pursuant to the federal 

definition, consists of certain activity when performed with the 

purpose or intent “to cause public inconvenience, annoyance or 

alarm.” Id. § 5503 (emphasis added); MODEL PENAL CODE § 250.2(1) 

(emphasis added).2

 

 

2Elmore’s attempt to parse this language so that it forbids 

“public inconvenience,” and also “annoyance or alarm” in general, 

is unavailing. We think it plain that the word “public” was 

intended to modify not only “inconvenience,” but “annoyance” and 

“alarm” as well. See, e.g., Commonwealth v. Young, 535 A.2d 
6

 Thus, Pennsylvania follows the Model Penal Code approach of 

distinguishing between violent, unruly, or offensive conduct 

directed at an individual, which the state criminalizes as 

harassment, and similar activity when directed at the public at 

large, which the state characterizes as disorderly conduct. See

Commonwealth v. Coolbaugh, 416 A.2d 563, 566-67 (Pa. Super. 1979) 

(Spaeth, J., dissenting); Commonwealth v. Duncan, 363 A.2d 803, 

807 (Pa. Super. 1976); see also Commonwealth v. Greene, 189 A.2d 

141, 144 (Pa. 1963). Compare MODEL PENAL CODE § 250.2 (disorderly 

conduct) with id. § 250.4 (harassment). Accordingly, unlike the 

Arizona “domestic violence” statute at issue in Kemp, 938 F.2d at 

1023, Pennsylvania’s definition of harassment does not proscribe 

activity considered to be mere “disorderly conduct” as that term 

is defined as a matter of federal law. See also United States v. 

Cox, 934 F.2d 1114, 1124 (10th Cir. 1991) (pursuant to Colorado 

law, menacing “is a crime against the person,” while disorderly 

conduct “is a crime against the public peace, order, and 

decency”); cf. Ward, 71 F.3d at 262-63 (Wisconsin statute 

criminalizing “possession of a dangerous weapon by a child” 

covers both “juvenile status offense” crimes, excludable pursuant 

to U.S.S.G. § 4A1.2(c)(1), and crimes includable under that 

section). 

 As applied to his second conviction, Elmore’s contention is 

equally meritless. It is inconceivable that Elmore’s convictions 

for assault and possession of drug paraphernalia, as defined by 

 

1141, 1142, 1143 (Pa. Super. 1988) (statute forbids recklessly 

creating risk of “public annoyance or alarm”). 
7

Florida, were based on activity that constituted mere disorderly 

conduct. While all criminal activity may justifiably be said to 

“cause public inconvenience, annoyance or alarm”, a conviction 

for a specific crime other than disorderly conduct demonstrates 

(without need to delve into the particular facts) that a 

defendant has done more than merely disturb the public order. 

 In short, Kemp and Ward require investigation into the facts 

underlying a conviction only when that conviction might in 

actuality be for mere disorderly conduct but not a different, 

more specific crime. Because Elmore was convicted of more 

serious offenses that are addressed by specific statutory 

provisions, it is not possible that the conduct underlying those 

convictions consisted of mere disorderly conduct. Kemp and Ward

are thus inapposite.3

 In United States v. Hardeman, 933 F.2d 278, 281 (5th Cir. 

1991), the Court of Appeals for the Fifth Circuit held that the 

courts should inquire into “all possible factors of similarity,” 

in determining whether an unlisted offense is “similar” to a 

listed offense for purposes of Guidelines section 4A1.2(c)(1). 

These factors include 

a comparison of punishments imposed for the 

listed and unlisted offenses, the perceived 

seriousness of the offense as indicated by 

the level of punishment, the elements of the 

 

 

3We respectfully disagree with the conclusion reached by the 

Court of Appeals for the Seventh Circuit in another case, United 

States v. Booker, 71 F.3d 685, 689 (7th Cir. 1995), that it was 

necessary to focus on the actual offense conduct in determining 

whether a conviction for “`knowingly damag[ing] any property of 

another without his consent,’” (quoting Ill. Rev. Stat. 1991, ch. 

38, ¶ 21-1 (1991)), was “similar” to disorderly conduct for 

purposes of U.S.S.G. § 4A1.2(c)(1). 
8

offense, the level of culpability involved, 

and the degree to which the commission of the 

offense indicates a likelihood of recurring 

criminal conduct. 

Id.; accord United States v. Booker, 71 F.3d 685, 689 (7th Cir. 

1995) (using Hardeman factors); see also Martinez, 905 F.2d at 

253-54 (considering whether conduct constituting unlisted offense 

is “uniformly criminalized” and whether it indicates likelihood 

of future criminal conduct). 

 We decline to engage in such an inquiry. The apparent 

concern of Guidelines section 4A1.2(c)(1) in excluding from 

consideration “offenses similar to” the enumerated offenses “by 

whatever name they are known” is that an offense, the elements of 

which in actuality constitute “disorderly conduct as that offense 

is generally understood,” should not be considered merely because 

that offense is denominated differently under state law. United 

States v. Fields, 39 F.3d 439, 447 n.9 (3d Cir. 1994). 

Accordingly, we follow the approach of the Court of Appeals for 

the First Circuit in Unger, 915 F.2d at 763 & n.5, and focus only 

upon the elements of the offenses as statutorily defined. See

also Martinez, 905 F.2d at 255-56 (Wallace, J., concurring). In 

doing so above, we have found no “similar[ity]” between the 

offenses Elmore committed and “disorderly conduct,” within the 

meaning of § 4A1.2(c)(1).4 The district court correctly included 

those offenses in determining Elmore’s criminal history category. 

III.

 

 

4We thereby answer a question we left unanswered in United 

States v. Fields, 39 F.3d 439, 447 (3d Cir. 1994). 
9

 Pursuant to U.S.S.G. § 4A1.1(d) and the application note 

thereto, two points are to be added in determining a defendant’s 

criminal history category if the present offense was committed 

“while a violation warrant from a prior sentence is outstanding . 

. . even if that sentence would have expired absent such 

warrant.” 

 Elmore avers that Florida officials never attempted to 

execute the Palm Beach warrant. Elmore moved to Pennsylvania 

when the warrant had been outstanding for approximately one year. 

 Members of Elmore’s family testified at the sentencing hearing 

that Florida officials told them that they had no interest in 

bringing Elmore back from Pennsylvania to Florida pursuant to the 

warrant. Elmore argues that the district court erred in 

assigning two points on the grounds that the authorities had not 

pursued the warrant, and that it had lapsed by the time he 

committed the instant offense. 

 Elmore cites no authority for his position. The plain 

language of the Guidelines indicates that two points are to be 

added whenever an outstanding warrant is in existence, regardless 

of whether the warrant is stale pursuant to state law at the time 

of sentencing, and irrespective of whether state authorities have 

been lax in attempting to execute the warrant. See United States 

v. Camilo, 71 F.3d 984, 987 (1st Cir. 1995), cert. denied, ___ 

U.S. ___, 116 S.Ct. 1555 (1996). Further, the inclusion of 

language stating that an outstanding violation warrant from a 

prior sentence should be considered “even if that sentence would 

have expired absent such warrant,” without further qualifying 
10

language, indicates that the Sentencing Commission intended there 

to be no time limitations on the viability of an outstanding 

warrant for these purposes. The district court committed no 

error in assigning two points on the basis of the Palm Beach 

warrant. 

IV.

 For the foregoing reasons, the August 6, 1996, judgment of 

the district court will be affirmed.