Latest Case: United States v. James (Criminal Law)

Is Consent Overrated?

SHERRY F. COLB

Cornell law professor Sherry F. Colb argues that while consent is an important and necessary condition of many activities in which adults engage, it does not necessarily follow that consent is a sufficient condition as well. Colb describes some circumstances in which the apparent consent of the parties does not make the result desirable or good.

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United States v. James

Docket: 19-1480

Opinion Date: March 9, 2020

Judge: D. Michael Fisher

Areas of Law: Criminal Law

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.”