United States District Court, D. Nebraska
USA, Plaintiff: Thomas J. Kangior, U.S. ATTORNEY'S
OFFICE-OMAHA, Omaha, NE.
F. Bataillon, Senior United States District Judge.
Sentencing Memorandum supplements findings made on the record
at defendant's sentencing hearing on November 5, 2015.
For the reasons set forth below, the court finds the
defendant's objection to the presentence investigation
report (Filing No. 28) should be sustained.
was charged in a two-count indictment with being a felon in
possession of a firearm in violation of 18 U.S.C. §
§ 922(g)(1) and 924(a)(2) and possession with intent to
distribute 50 grams or more of actual methamphetamine, in
violation of 21 U.S.C. § 841(a)(1) and (b)(1). Filing
No. 1, Indictment. Pursuant to a plea agreement, the
defendant entered a plea of guilty to the drug charge. Filing
No. 26, Plea Agreement. That offense carries a mandatory
minimum sentence of five years and a maximum of forty years.
See 21 U.S.C. § 841 (b)(1). The parties agreed
that the defendant should be held responsible for at least 50
grams but not more than 150 grams of methamphetamine actual.
Filing No. 26, Plea Agreement at 3. The parties also agreed
that the defendant possessed a firearm or other dangerous
weapon in connection with the offense of conviction and that
such conduct qualifies him for a two-level upward adjustment
under U.S.S.G. § 2D1.1(b)(1). Id.
court accepted the defendant's plea and directed the
United States Office of Probation (hereinafter, " the
Probation Office" ) to prepare a Presentence
Investigation Report (hereinafter, " PSR" ) that
calculated the defendant's sentence under the United
States Sentencing Guidelines (" the Guidelines" ).
Filing No. 23, text minute entry. In the PSR, the Probation
Office identified U.S.S.G. § 2D1.1 as the applicable
Guidelines base offense level provision and determined that
the defendant's base offense level was 30, based on a
quantity determination of approximately 118.6 grams of
methamphetamine (actual) under § 2D1.1(a)(5)(c)(5).
Filing No. 37, PSR (sealed) at 5, 8. It determined that a two
level enhancement for possession of a firearm under U.S.S.G.
2D1.1(b)(1) was warranted. Id. at 8. It further
determined that the defendant qualified as a career offender
under U.S.S.G. 4B1.1(b)(2) because (1) he was at least 18
years old at the time of the instant offense of conviction;
(2) the instant offense of conviction is a felony that is a
controlled substance offense; and (3) he has at least two
prior felony convictions of either a crime of violence or a
controlled substance offense, making his base offense level
34. Id. The predicate felonies were his convictions
for drug distribution and for attempted burglary.
Id. at 14. The Probation Office then subtracted
three levels for the defendant's acceptance of
responsibility under U.S.S.G. § 3E1.1 (a) & (b),
resulting in a total offense level of 31. Id. at
probation office first determined the defendant's
criminal history category was V, based on the assessment of
12 criminal history points for convictions for being a felon
in possession of a firearm, drug distribution, possession of
marijuana less than an ounce, attempted burglary, witness
tampering and committing the offense while under a criminal
justice sentence. Id. at 9-13. However, because the
defendant qualified as a career offender, his criminal
history category became VI under U.S.S.G. § 4B1.1(b).
Id. at 15. At criminal history category VI and
offense level 31, the defendant's sentencing range under
the Guidelines, as calculated by the Probation Office, is 188
to 235 months. Id. at 21.
defendant is thirty-two years old. Id. at 17. He is
divorced and has four minor children. Id. at 18. He
is currently in a relationship with a woman who has prior
convictions for misdemeanor drug possession. Id. He
dropped out of high school in tenth grade a, but obtained his
GED while in custody. Id. at 19. He has been
variously employed as a sanitation worker, flooring
installer, garage attendant, meat-packer, and mover.
Id. at 20-21.
a history of marijuana and cocaine use. Id. He
completed a substance abuse evaluation in 2007 and received
diagnoses of alcohol and cannabis dependence with a
recommendation for intensive outpatient treatment.
Id. He acknowledges that he is in need of substance
abuse treatment. Id.
defendant objected to the application of the career offender
guideline. Filing No. 28, Objections to the Presentence
Report. He argues that a conviction for attempted burglary
does not qualify as predicate offense as a crime of violence
under U.S.S.G. § 4B1.1 in light of the Supreme
Court's decision in Johnson v. United States, __
U.S. __, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), which
declared the residual clause of the Armed Career Criminal Act
(" ACCA" ), 18 U.S.C. § 924(e), void for
vagueness. Id. at 1-2. In response, the government
argues that under Eighth Circuit precedent, attempted
burglary qualifies as a crime of violence. Filing No. 34,
Government's Response at 2-3. Although it concedes that
Johnson is applicable to the corollary Guidelines
residual clause, it argues that the residual clause is not
applicable and that attempted burglary qualifies as a crime
of violence as an enumerated offense, regardless of the
residuary clause. Id. at 4-5.
a sentencing court must give respectful consideration to the
Sentencing Guidelines, the Supreme Court's decision in
United States v. Booker, 543 U.S. 220, 125 S.Ct.
738, 160 L.Ed.2d 621 (2005), permits the court to tailor the
sentence in light of other statutory concerns as well.
Pepper v. United States, 562 U.S. 476, 131 S.Ct.
1229, 1241, 179 L.Ed.2d 196 (2011). The district court
follows the sentencing framework set forth by the Supreme
Court in Gall v. United States, 552 U.S. 38, 49-51,
128 S.Ct. 586, 169 L.Ed.2d 445 (2007). See
United States v. Washington, 515 F.3d 861, 865-66
(8th Cir. 2008)
(" We urge district courts to continue to engage
in the three-step process of first ascertaining the
applicable Guidelines range, then considering any permissible
departures within the Guidelines' structure, and finally,
deciding whether a non-Guidelines sentence would be more
appropriate under the circumstances pursuant to §
3553(a)." ). The first step is to calculate the
defendant's advisory Guidelines sentencing range, which
provides " the starting point and the initial
benchmark" for any sentence. Gall, 552 U.S. at
49. Next, the court determines whether any traditional
Guidelines departures are warranted. Washington, 515
F.3d at 865. Finally, the court considers whether to vary
from the advisory Guidelines range based on the factors set
forth in 18 U.S.C. § 3553(a). Gall, 552 U.S. at
49-50; United States v. VandeBrake, 679 F.3d 1030,
1039 n. 7 (8th Cir. 2012).
court is not to presume that the Guidelines range is
reasonable, but is required to make an individualized
assessment based on the facts of each case under 18 U.S.C.
§ 3553(a). Gall, 552 U.S. at 50. If the court
determines that a variance from the Guidelines range is
appropriate, it must consider the extent of the deviation and
ensure that there is a correspondingly compelling
justification. Id. Ultimately, the court must impose
a sentence " in line with § 3553(a)'s
overarching instruction to 'impose a sentence sufficient,
but not greater than necessary,' to ...