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Loitering convictions

What the court held

Case: U.S. v. Lock, No. 06-1423

Issue: Can a conviction for “loitering-illegal drug activity” be counted in calculating a defendant’s criminal history score?

Holding: No. All loitering convictions are excluded by U.S.S.G. 4A1.2(c)(2).

Convictions under Milwaukee’s “Loitering-Illegal Drug Activity” ordinance cannot be included in determining a defendant’s criminal history score, the Seventh Circuit held on Oct. 20.

In 2005, Alfred Lock pleaded guilty to conspiracy to distribute crack cocaine. In preparing his presentence report, the probation office assigned him two criminal history points for his two Milwaukee Municipal Court convictions for “Loitering-Illegal Drug Activity.”

The ordinance provides, “Any person who loiters or drives in any public place in a manner and under circumstances manifesting the purpose of inducing, enticing, soliciting or procuring another to engage in illegal drug activity shall forfeit not less than $500 nor more than $5,000 or upon default of payment be imprisoned for not more than 90 days.”

Lock objected to the inclusion of these convictions, citing U.S.S.G. 4A1.2(c)(2), which excludes from the calculation of a defendant’s criminal history, convictions for, among other offenses, loitering.

Nevertheless, District Judge Rudolph T. Randa included the convictions in his criminal history score, reasoning that the illegal drug activity element of the offense distinguishes it from ordinary loitering offenses.

“Loitering Plus” is Loitering

Lock appealed, and the Seventh Circuit reversed, in a decision by Judge Joel M. Flaum.

Applying de novo review, the court framed the relevant question as follows: “Loitering by any other name is still loitering, but the relevant inquiry is whether Loitering-Illegal Drug Activity constitutes a different and therefore distinct offense.”

The court looked first to dictionary definitions, noting that “Black’s Law Dictionary” defines loitering as remaining “in a certain place … for no apparent reason,” while the Model Penal Code defines it as behavior that is “not usual for law abiding individuals.”

The court observed, “While the first definition of loitering denotes a lack of purpose, characterizing the activity as at least neutral if not entirely innocent, the second definition suggests that loiterers may harbor illicit motives.”

The court found Black’s definition supports the government’s argument that the Milwaukee ordinance differs from loitering as traditionally perceived, while the second supports Lock’s argument, because it recognizes that loitering necessarily includes suspicious activity.

Thus, the court concluded it could not resolve the issue based on the plain language of the guidelines, and looked to other considerations.

Circuits Split

The court noted that other circuits have split on how to treat “loitering plus” offenses under the Guidelines. The Second Circuit has held that such offenses should not be included, relying on the plain language of the guidelines, while the Third Circuit went beyond the plain language and concluded that a “loitering plus” offense was not comparable to traditional legal definitions of loitering, and held they should be included.

Lacking a consensus opinion on the issue, the court resolved the issue by looking at the treatment of a Chicago loitering ordinance by the U.S. Supreme Court in City of Chicago v. Morales, 527 U.S. 41 (1999).

A plurality of the court in Morales asserted that “the freedom to loiter for innocent purposes is part of the ‘liberty’ protected by the Due Process Clause of the Fourteenth Amendment.” Morales, at 53.

The Seventh Circuit was skeptical of this conclusion, calling it a “controversial proposition,” but did not take issue with it.

Treatment of Loitering Ordinances

Related Article

Case Analysis

The court found that the plurality in Mor-ales recognized a dichotomy in the treatment of loitering ordinances, in which loitering ordinances that include an overt act or evidence of criminal activity are constitutional, while those that do not join the term “loitering” with another element are unconstitutionally vague.

The court thus concluded, “In other words, the plurality recognized that anti-loitering laws were not designed to target the merely idle while noting with approval the existence of ‘loitering plus’ ordinances.”

The court found that the dissents of Justice Scalia and Thomas, which praised anti-loitering ordinances as crime-fighting tools generally, also support this conclusion: “Despite the discord among the justices as to whether the Constitution protects those who innocently loiter, all members of the Court seem to agree that anti-loitering laws are useful for targeting illicit activities. Given this rationale for enforcing anti-loitering ordinances, it would seem illogical to differentiate Mil-waukee’s ordinance simply because it specifies the illicit activity it seeks to prevent.”

Elaborating, the court explained, “Morales put Congress on notice that loitering ordinances target criminal behavior — not just innocent standing around. Nonetheless, Congress declined to remove loitering from the list of offenses excluded by U.S.S.G. 4A1.2(c)(2). It would be improper for us to do what Congress has declined to do through its power to legislate, i.e., count loitering offenses in a defendant’s criminal history.”

Accordingly, the court vacated Lock’s sentence and remanded the case for re-sentencing.

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