The courts decision settles an issue that has divided district court judges in the Eastern District. In U.S. v. Moore, 288 F.Supp.2d 955 (E.D.Wis.2003), for example, the district court held, consistent with the Seventh Circuit in the case at bar, that convictions under Milwaukees loitering-illegal drug activity ordinance were not to be used in calculating a defendants criminal history category.
The reasoning was different, however. The court in Moore relied on the plain language of U.S.S.G. 4A1.2(c)(2) in reaching its conclusion. Moore, at 956-57.
That decision also contained a rule of lenity component: The sentencing guidelines may have many flaws, but failing to impose sufficient punishment is not one of them. Courts should not stretch the language of the guidelines to increase a defendants criminal history points or his offense level. Id., at 961.
In contrast, the Seventh Circuit found that the issue could not be resolved by reference to the plain language of the guideline.
Instead, the Seventh Circuits analysis can be summed up as follows: simple loitering statutes are unconstitutional under City of Chicago v. Morales, 527 U.S. 41 (1999); therefore, when the guidelines refer to loitering, they must necessarily include loitering plus offenses.
Defense attorneys should not feel limited in their use of this decision to issues involving the sentencing guidelines. One particular passage could prove useful in suppression motions in state or federal court.
The court wrote, For many Milwaukee residents, standing on any neighborhood street corner behavior indistinguishable from ordinary loitering could amount to frequenting a known area of illegal drug activity. [M]erely standing around and talking to an ex-convict constitutes culpable behavior under the ordinance. Again, some Milwaukee residents may converse with ex-drug offenders in the course of an ordinary day.
This passage could be paraphrased as follows: Parts of Milwaukee are a big drug supermarket. If you live in such an area, frequenting known areas of illegal drug activity and engaging in conversation with known drug sellers or purchasers is unavoidable.
The courts passage could prove useful when challenging the reasonable suspicion of a stop and detention in a high crime area. See Margaret Raymond, Down on the Corner, Out in the Street: Considering the Character of the Neighborhood in Evaluating Reasonable Suspicion, 60 Ohio St. L.J. 99, 143 (1999) (arguing that the character of a neighborhood should be considered only where the behavior that is relied upon to establish reasonable suspicion is behavior not commonly observed among law-abiding persons at the time and place observed.).
The courts statement suggests that association with drug users and sellers is common even among law-abiding persons in some areas of Milwaukee, and could be used to support a motion premised on Raymonds thesis.
– David Ziemer
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David Ziemer can be reached by email.