Obstructing Highway or Other Passageway in Violation of Tex. Penal Code § 42.03 Is Not Similar to "Loitering" Under Criminal History Guidelines

United States v. Hernandez, No. 10-10913 (5th Cir. Feb. 22, 2011) (per curiam) (Jolly, Higginbotham, Smith)

The concise intro:

The Federal Sentencing Guidelines instruct a sentencing court to consider all of a defendant’s prior convictions, including misdemeanors and petty offenses, subject to two exceptions designed “to screen out past conduct which is of such minor significance that it is not relevant to the goals of sentencing.” Under the first exception, U.S.S.G. § 4A1.2(c)(1), convictions for certain minor offenses are counted only if they are similar to the instant offense or if the sentence includes a term of imprisonment of at least 30 days or a term of probation of more than one year. Under the second exception, U.S.S.G. § 4A1.2(c)(2), convictions for certain other minor offenses—including loitering—are “never counted.” Each provision applies to a list of enumerated offenses and to any “offenses similar to them, by whatever name they are known.” We hold today that the Texas state offense of “obstructing a highway or other passageway” [Tex. Penal Code § 42.03]  is not similar to the listed offense of loitering.

Why?  Because of the "common sense approach" (not to be confused with the other common-sense approach, from which it differs in important respects).  This approach considers several factors

to determine whether the past conduct is “relevant to the goals of sentencing”—that is, whether the offense was sufficiently serious or indicative of future criminality that the defendant should be subject to heightened punishment. In listing such factors as the level of punishment actually imposed, the Guidelines direct us to consider the actual conduct underlying the conviction, not just the general nature of the crime. Because the Guidelines’ default rule for past offenses is one of inclusion, any doubts should be resolved in favor of counting the offense.

The factors cut against finding that obstructing a passageway is similar to loitering.  To the contrary, it's more serious:

• Loitering doesn't require a mental state, but obstruction of a passageway must be committed intentionally, knowingly, or recklessly. "A more culpable mental state frequently presents a more serious crime."
• "With regard to obstructing a passageway, we think the focus on pathways used by people or vehicles and on actions that 'render passage unreasonably inconvenient or hazardous' limits the statute’s reach to conduct that poses a substantially greater risk of harm to others than does ordinary loitering."
• Loitering is just a local ordinance violation, whereas obstructing a passageway is a Class B misdemanor punishable by up to 180 days in jail and a $2,000 fine.
• Although he was initially sentenced to probation, Hernandez was later revoked and sentenced to 150 days in jail. "Even without knowing the precise circumstances of the past crime, it is clear from this limited record that it was a serious offense."

Interestingly, even though this common-sense approach allows consideration of the actual circumstances of the prior offense, the court refused the Government's attempt "to supplement the record with documents purporting to show that Hernandez was originally arrested for driving while intoxicated (DWI), but managed to negotiate the charge down to obstructing a passageway as part of a plea agreement."  Why? "[B]ecause we have long held that '[a]rrests, standing alone, do not constitute reliable information under either the Guidelines or our precedent pre-dating the Guidelines.'"