| James’s 10-year-old nephew found a loaded handgun in a drawer. The gun fired accidentally, wounding the boy’s six-year-old sister. She recovered. James pleaded guilty under 18 U.S.C. 922(g)(1), to possession of a firearm by one convicted of a crime punishable by more than one year of incarceration. The PSR recommended 84-105 months' imprisonment, with two criminal history points for a 2011 conviction for “loitering and prowling at night time,” 18 Pa. Cons. Stat. 5506, a third-degree misdemeanor, punishable by up to one year of incarceration. James had been sentenced to 60 days’ probation. Probation violations resulted in a nine-month sentence of incarceration. James argued that the sentence for “[l]oitering” and for all offenses “similar to” it should be excluded from his criminal-history score under U.S.S.G. 4A1.2(c)(2), which would result in a guidelines range of 70-87 months. The Third Circuit affirmed a 105-month sentence. Although section 5506 and its application to James are similar to the offenses that comprise loitering simpliciter, excluded by U.S.S.G. 4A1.2(c)(2), the court noted section 5506’s one-year maximum term of imprisonment. Section 5506’s mens rea requirement categorically distinguishes it from the “[l]oitering” offense listed in section 4A1.2(c)(2). Pennsylvania courts have construed section 5506, which refers to acting “maliciously” to contain a mens rea element akin to the Model Penal Code’s term “purposely.” |
