United States v. Vincent Livingston ( 2019 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 17-2454
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UNITED STATES OF AMERICA
v.
VINCENT LIVINGSTON
a/k/a
Double O
Vincent Livingston,
Appellant
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Appeal from the United States District Court
for the District of New Jersey
(D.C. Criminal Action No. 2-15-cr-00627-001)
District Judge: Honorable Claire C. Cecchi
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Submitted under Third Circuit LAR 34.1(a)
on March 20, 2018
Before: SMITH, Chief Judge, HARDIMAN and ROTH, Circuit Judges
(Opinion filed May 8, 2019)
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OPINION
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
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
ROTH, Circuit Judge
Vincent Livingston appeals the sentence imposed by the United States District
Court for the District of New Jersey. Livingston contends that the District Court
misapplied the United States Sentencing Guidelines (Guidelines) when it counted in
Livingston’s criminal history score his prior conviction for deceptive business practices
under New Jersey Statute § 2C:21-7. We conclude that the District Court correctly
applied the Guidelines, and therefore we will affirm its judgment of sentence.
I.
In 2017, Livingston pled guilty to one count of knowingly and intentionally
conspiring to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and
846. At sentencing, Livingston argued that two of his prior convictions—one for
loitering with the intent to obtain or distribute a controlled dangerous substance and the
other for deceptive business practices—should be excluded from his criminal history
score. Livingston contends that these prior two convictions were not countable under
U.S.S.G. § 4A1.2(c)(1), which lists a number of minor offenses and provides that the
sentences for such offenses and offenses similar to them will not be counted in the
Criminal History computation.
The government contested the exclusion of these prior convictions. The District
Court rejected Livingston’s arguments that his prior convictions were sufficiently similar
to the enumerated offenses, and assigned one criminal history point for each of the
convictions. The counting of these two convictions placed Livingston in Criminal
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History Category II. Livingston was then sentenced to sixty-three months in prison, the
bottom of the applicable Guidelines range.
Livingston now appeals the assignment of one criminal history point for his
deceptive business practices conviction.1
II.2
Livingston argues that his deceptive business practices conviction is similar to the
Guidelines enumerated offense of “disorderly conduct or disturbing the peace” and, as a
result, the District Court erred in counting the conviction towards his criminal history
score. Whether “deceptive business practices” is similar to the Guidelines offense of
disorderly conduct is an issue of first impression in this Court. To determine whether the
two offenses are similar, we apply the five-factor test we previously announced in United
1
Livingston does not appeal the assignment of one point for his prior conviction of
loitering for the purpose of using, possessing, or selling a controlled dangerous substance.
We held in United States v. Hines that the loitering referred to in the Guidelines is
loitering simpliciter, which is not the same as loitering for the purpose of using,
possessing, or selling a controlled dangerous substance under New Jersey Statute §
2C:33-2.1; the latter involves “the specific intent to obtain or distribute a controlled
substance unlawfully” and therefore constitutes “loitering plus.” 628 F.3d 101, 108-09
(3d Cir. 2010). Hines thus forecloses any argument that the District Court improperly
assigned one criminal history point for Livingston’s prior loitering conviction.
2
The District Court had jurisdiction under 18 U.S.C. § 3231, and we have jurisdiction
under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(2). We review de novo a district court’s
interpretation of the Guidelines. Hines, 628 F.3d at 105.
3
States v. Hines.3 After balancing these factors, we conclude that the two offenses are not
similar.
The Guidelines provide that disorderly conduct or disturbing the peace “and
offenses similar to them, by whatever name they are known,” shall not be counted in
determining a defendant’s criminal history score, unless “(A) the sentence [of the prior
offense] was a term of probation of more than one year or a term of imprisonment of at
least thirty days, or (B) the prior offense was similar to an instant offense.”4 To
determine whether a prior offense is similar to disorderly conduct or disturbing the peace,
we (1) compare the punishments imposed, (2) consider the perceived seriousness of the
instant offense, (3) compare the elements of the offenses, (4) compare the level of
culpability involved, and (5) consider the degree to which the commission of the offense
indicates a likelihood of recidivism.5 Where, “[o]n balance,” fewer factors weigh in
favor of finding similarity, the prior offense is not “similar to” the Guidelines offense.6
Livingston concedes that the first factor weighs against a finding of similarity. In
comparing the punishments of the offenses, we look to the maximum possible
3
628 F.3d at 110. Our previous approach for determining whether an offense is similar
to one of the enumerated offenses in the Guidelines entailed just a comparison of the
elements of the offenses. See United States v. Elmore, 108 F.3d 23, 27 (3d Cir. 1997). In
Hines, we recognized that this approach had been disavowed by the Sentencing
Commission. Hines, 628 F.3d at 110. We therefore adopted the five-factor test that the
Guidelines approved. See id.4
U.S.S.G. § 4A1.2(c)(1) (emphasis added). The parties do not argue that either of these
exceptions apply here.
5
See Hines, 628 F.3d at 110.
6
See id. at 113.
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punishments under the relevant state laws.7 As we have previously held, where an
offense is punishable by more than thirty days’ imprisonment, the offense is not “similar
to” an offense punishable by thirty days or less.8 The maximum possible punishment for
deceptive business practices, a disorderly persons offense, is six months in jail, while the
maximum potential sentence for “disorderly conduct,” a petty disorderly persons offense,
is only thirty days in jail.9 The punishments for the two crimes, therefore, are not similar.
Second, we evaluate the seriousness of Livingston’s prior conviction by
considering the punishment he actually received. For his crime of deceptive business
practices, Livingston was sentenced to one year of probation and eight days of jail credit.
This sentence, and specifically the small amount of jail time involved, is “similar to the
penalties one would receive for committing the type of minor offense that the Guidelines
do not count.”10 Thus, this factor weighs in favor of finding that the deceptive business
practices offense is similar to the Guidelines offense of disorderly conduct.
Third, we compare the elements of the two crimes. For this analysis, we “interpret
New Jersey’s statute according to state law and the Guidelines according to federal
7
See id. at 110-11.
8
Id. at 111.
9
See N.J. Stat. § 2C:21-7 (deceptive business practices is a disorderly persons offense);
N.J. Stat. § 2C:33-2 (disorderly conduct is a petty disorderly persons offense); N.J. Stat.
§ 2C:43-8 (“A person who has been convicted of a disorderly persons offense or a petty
disorderly persons offense may be sentenced to imprisonment for a definite term which
shall be fixed by the court and shall not exceed 6 months in the case of a disorderly
persons offense or 30 days in the case of a petty disorderly persons offense.”).
10
Hines, 628 F.3d at 111.
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law.”11 In New Jersey, “[a] person commits an offense [of deceptive business practices
if] he . . . [s]ells, offers or exposes for sale adulterated or mislabeled commodities.”12
Under federal law, an individual is guilty of “disorderly conduct” if with the “intent to
cause public inconvenience, annoyance or alarm” he engages in violent or threatening
behavior; makes unreasonable noise or offensive displays; uses abusive language; or
creates a hazardous or physically offensive condition.13 The elements of the two crimes
are very different. This factor, therefore, weighs in favor of concluding that the two
crimes are not similar.
Fourth, and related to the third element, we evaluate the level of culpability
involved in each crime. As we said in Hines, “[c]ulpability is another way of describing
the mens rea a statute requires of each material element of an offense.”14 The mens rea of
New Jersey’s deceptive business practices statute is “knowing[] or reckless[]” deception
in selling “adulterated or mislabeled” goods.15 On the other hand, the mens rea of
disorderly conduct under the Guidelines is the “purpose to cause public inconvenience
. . . or recklessly creating a risk thereof.”16 Because the mens rea of disorderly conduct
does not involve any knowing or reckless deception, “the culpability requirements are
11
Id.12
N.J. Stat. § 2C:21-7(d).
13
Elmore, 108 F.3d at 26 (quoting Model Penal Code § 250.2(1)) (internal quotation
marks omitted).
14
628 F.3d at 113.
15
See N.J. Stat. § 2C:21-7 (“It is an affirmative defense to prosecution under this section
if the defendant proves by a preponderance of the evidence that his conduct was not
knowingly or recklessly deceptive.”).
16
Model Penal Code § 250.2(1).
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divergent enough to render the offenses dissimilar under this portion of the Guidelines’
balancing test.”17
Finally, the government has not provided any evidence that a deceptive business
practices conviction indicates a likelihood of recidivism. Even if this factor weighs in
favor of finding similarity, however, three of the other factors do not.
As a result, the offense of deceptive business practices under New Jersey law is
not similar to the Guidelines enumerated offense of disorderly conduct. For this reason,
the District Court properly counted the deceptive business practices conviction toward
Livingston’s criminal history score.
CONCLUSION
For the above reasons, we will affirm the judgment of the District Court.
17
Hines, 628 F.3d at 113.
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