United States v. Tremayne James (3rd Cir. March 2020)

The Federal Docket

March 17, 2020

Sentencing Guidelines – “Loitering” under U.S.S.G. § 4A1.2(c)(2) includes only those loitering offenses “that do not require, either explicitly or by judicial interpretation, a purpose to engage in some type of unlawful conduct.”

The defendant appealed his sentence, arguing that his prior conviction for loitering under Pennsylvania law should not have been counted towards his criminal history score under U.S.S.G. § 4A1.2(c)(2), which lists a number of offenses that do not count towards a defendant’s criminal history score, along with offenses that are “similar to them.” Loitering is one of those enumerated offenses.

The Court explained how the Third Circuit distinguishes between “loitering simpliciter,” which are not counted under 4A1.2(c)(2), and “loitering plus,” which are. Loitering simpliciter, the Court explained, has no mens rea element requiring criminal intent.

After engaging in a lengthy and complicated discussion of common law loitering offenses and the history of constitutional challenges to them, the Court concluded that, while the Pennsylvania loitering statute did not require a specific criminal intent, state courts had interpreted it to require proof of a general intent to commit an unlawful act.  Accordingly, the defendant’s prior conviction was for “loitering plus” rather than  “loitering simpliciter,” and it was properly counted towards the defendant’s criminal history.

Appeal from the Middle District of Pennsylvania

Opinion by Fisher, joined by Shwartz and Fuentes

Click here to read the opinion.


Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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