SENTENCING MEMORANDUM

Joseph F. Bataillon, Senior United States District Judge.

This 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.

I. Background

Defendant 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 USSG § 2D1.1(b)(1). Id.

The 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 8-9.

The 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.

The 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.

He has 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 out-patient treatment. Id. He acknowledges that he is in need of substance abuse treatment. Id.

The 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.

II. Law

Although 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, 128 S.Ct. 586. 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, 128 S.Ct. 586; United States v. VandeBrake, 679 F.3d 1030, 1039 n. 7 (8th Cir.2012).

The 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, 128 S.Ct. 586. 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 accomplish the sentencing goals advanced in § 3553(a)(2)." Kimbrough v. United States, 552 U.S. 85, 89, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007).

The Guidelines define "crime of violence" as an offense punishable by imprisonment for a term exceeding one year that "is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another."1 Id. § 4B1.2(a)(2) (emphasis added). "The residual clause of the sentencing guideline uses identical language to the [residual clause of the ACCA], including as a `crime of violence' any felony that `otherwise involves conduct that presents a serious potential risk of physical injury to another.'" United States v. Taylor, 803 F.3d 931, 932 (8th Cir.2015) (quoting U.S.S.G. § 4B1.2(a)(2)). Courts have "consistently applied the same analysis to both clauses." United States v. Madrid, 805 F.3d 1204, 1209, 2015 WL 6647060, at *3 (10th Cir. Nov. 2, 2015); see United States v. Boose, 739 F.3d 1185, 1187 n. 1 (8th Cir.2014)(stating "Based on their nearly identical definitions, we construe "violent felony" under 18 U.S.C. § 924(e)(2)(B)(ii) (the Armed Career Criminal Act) and "crime of violence" under the Guidelines as interchangeable, including the corresponding force clauses and residual clauses); but see United States v. Craig, 630 F.3d 717, 723-24 (8th Cir.2011) (stating the definitions of "crime of violence" in U.S.S.G. § 4B1.2 and "violent felony" in 18 U.S.C. § 924(e)(2)(B) are treated as interchangeable, but noting that the practice of interchanging the two provisions cannot be followed universally because the Guidelines include binding commentary not applicable to 924(e)).

The United States Supreme Court recently found "that the indeterminacy of the wide-ranging inquiry required by the residual clause [in the ACCA] both denies fair notice to defendants and invites arbitrary enforcement by judges" and consequently concluded that "[i]ncreasing a defendant's sentence under the [residual] clause denies due process of law." Johnson, 135 S.Ct. at 2557. Since then, some Courts of Appeal have extended the holding in Johnson to the Guidelines' career offender provision, finding that the residual clause of the Guidelines provision is similarly unconstitutionally vague. See United States v. Madrid, 805 F.3d 1204, 1210, 2015 WL 6647060, at *4 (10th Cir. Nov. 2, 2015) (noting that "it stretches credulity to say that we could apply the residual clause of the Guidelines in a way that is constitutional, when courts cannot do so in the context of the ACCA" and finding "[i]f one iteration of the clause is unconstitutionally vague, so too is the other"); United States v. Franklin, 622 Fed. Appx. 501, 513, 2015 WL 4590812, *11 (6th Cir. July 31, 2015) (unpublished) (vacating and remanding an enhancement under the residual clause of the Guidelines "in light of Johnson"); United States v. Harbin, 610 Fed.Appx. 562, 562-63 (6th Cir.2015) (unpublished) (stating a defendant sentenced under the residual clause of the career offender Guideline "is entitled to the same relief as offenders sentenced under the residual clause of the ACCA"); United States v. Goodwin, 625 Fed.Appx. 840, 843, 2015 WL 5167789, at *3 (10th Cir. Sept. 4, 2015) (finding clear error in the district court's reliance on the Guidelines' residual clause to enhance a defendant's sentence); but see United States v. Matchett, 802 F.3d 1185, 1193-94 (11th Cir.2015) (holding that [t]he vagueness doctrine in Johnson does not apply to the advisory sentencing guidelines.).2

Recently, the Eighth Circuit vacated a sentence enhanced under the Guidelines' career offender provision and remanded for consideration of a due process vagueness challenge in light of Johnson. United States v. Taylor, 803 F.3d 931 (8th Cir. 2015) The Court noted that "[i]n United States v. Wivell, [893 F.2d 156, 159 (8th Cir.1990)] our circuit concluded that the sentencing guidelines are `not susceptible to a vagueness attack[,]'" but stated that "[t]he reasoning in Wivell that the Guidelines cannot be unconstitutionally vague because they do not proscribe conduct is doubtful after Johnson." Id. at 932-33; see also Madrid, 805 F.3d at 1213, 2015 WL 6647060, at *6 (noting that the Eighth Circuits' holding in Wivell is additionally suspect because it predates Peugh v. United States, ___ U.S. ___, 133 S.Ct. 2072, 2082, 186 L.Ed.2d 84 (2013), in which the Supreme Court held that the Guidelines could be challenged as a violation of the ex post facto clause, despite being merely advisory). In Taylor, the Eighth Circuit noted that the Supreme Court had "vacated and remanded for reconsideration two guideline sentences using the residual clause" after Johnson. Taylor, 803 F.3d at 932-33.

In a case that predates Johnson, the Eighth Circuit Court of Appeals ("Eighth Circuit") addressed "whether an attempt to commit a crime of violence in Nebraska qualifies as a crime of violence under U.S.S.G. 4B1.2." United States v. Ross, 613 F.3d 805, 809 (8th Cir.2010). The Eighth Circuit explicitly focused on the "otherwise" clause of the Guidelines provision in its analysis. Id. at 807 (adding emphasis to the "otherwise" clause). The Court noted that the issue of whether the violation of a statute that encompasses merely preparatory activity would constitute a violent felony would have to be addressed if the case had involved the ACCA, but found, since only the Guidelines enhancement was involved, that the case could be "resolved in a more straightforward manner" by relying solely on binding Guidelines "commentary governing the career offender Guideline [that] states that `crime of violence' for purposes of § 4B1.1 `include[s] the offenses of aiding and abetting, conspiring, and attempting to commit such offenses.'" Id. at 808-09 (quoting U.S.S.G. § 4B1.2, comment. (n.1) (emphasis in original).3 It then analogized to the Supreme Court's interpretation of the ACCA enhancement to determine "that the Sentencing Commission meant to adopt `a generic, contemporary meaning' of `attempt' in its commentary." Id. at 809 (quoting in Taylor v. United States, 495 U.S. 575, 598, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)).4 It found the Model Penal Code definition of attempt adopted by Nebraska, which extends to "such conduct as `reconnoitering the place contemplated for the commission of the crime' and `possession of materials to be employed in the commission of the crime, that are specially designed for such unlawful use," fit the generic contemporary meaning of attempt. Id. at 808-09. The Eighth Circuit then applied the modified categorical approach to determine that Ross had attempted to commit a crime of violence because his charging document established that his attempt involved a structure. Id. at 809.

Importantly, not only does the Ross case predate Johnson, it predates the Supreme Court's decision in Descamps v. United States, 133 S.Ct. 2276, 2281-83 (2013), in which the Supreme Court clarified that the "modified categorical approach" is to be applied sparingly and can only be applied to divisible statutes that list potential offense elements in the alternative. Id. When a statute "contain[s] a single, `indivisible' set of elements sweeping more broadly than the corresponding generic offense," the modified categorical approach does not apply and a sentencing courts "may `look only to the statutory definitions' — i.e., the elements — of a defendant's prior offenses, and not `to the particular facts underlying those convictions.'" Id. at 2283 (quoting Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)). Under Descamps, a prior conviction qualifies as an ACCA predicate only if the statute's elements are the same as, or narrower than, those of the generic offense. Descamps, 133 S.Ct. at 2279; see United States v. Thornton, 766 F.3d 875, 877 (8th Cir.2014) (noting that generic "burglary" is defined, for purposes of the ACCA as "any crime, regardless of its exact definition or label, having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime") (internal quotations omitted). "If the relevant statute has the same elements as the `generic' ACCA crime, then the prior conviction can serve as an ACCA predicate." Descamps, 133 S.Ct. at 2283.

However, "[i]f the statute sweeps more broadly than the generic crime, a conviction under that law cannot count as an ACCA predicate, even if the defendant actually committed the offense in its generic form." Id. See also United States v. Bankhead, 746 F.3d 323, 327 (8th Cir.2014) (finding conviction under Illinois robbery statute does not correspond to narrower ACCA requirement and cannot form the basis of an act of juvenile delinquency under the ACCA). "Whether the statute of conviction has an overbroad or missing element, the problem is the same: Because of the mismatch in elements, a person convicted under that statute is never convicted of the generic crime". Descamps, 133 S.Ct. at 2292. The key "is elements, not facts." Id. at 2284.

Under Nebraska law, "a person commits burglary if such person willfully, maliciously, and forcibly breaks and enters any real estate or any improvements erected thereon with intent to commit any felony or with intent to steal property of any value." Neb. Rev. Stat. § 28-507. The elements of burglary are contained in the statute. State v. McDowell, 522 N.W.2d 738, 743 (Neb. 1994). In Nebraska, criminal attempt is defined by Neb. Rev. Stat. § 28-201 (Reissue 1995) as follows:

Neb. Rev. Stat. § 28-507. Nebraska accepts the position of the Model Penal Code in that the statute requires that the dangerous disposition be manifested by some intentional act which would constitute a substantial step towards the completion of the crime.

State v. Sodders, 304 N.W.2d 62, 64-65 (Neb.1981) (listing as examples of lying in wait for the intended victim; unlawful entry into a structure where it is contemplated that the crime will take place; possession or fabrication of the material necessary to complete the act which finally would constitute the crime; or soliciting an innocent agent to engage in conduct constituting an element of the crime); see also Ross, 613 F.3d at 808 (stating that examples would also include reconnoitering the place contemplated for the commission of the crime and possession of burglars' tools in the case of attempted burglary). Notably, the residual clause does not include all crimes that pose a serious risk of physical injury to another, but rather, it covers only crimes that, "in addition to posing such a risk, are `similar' to the ACCA's `listed examples — burglary, arson, extortion, or crimes involving explosives' in that they `typically involve purposeful, violent, and aggressive conduct.'" United States v. Jones, 574 F.3d 546, 550 (8th Cir.2009) (quoting Begay v. United States, 553 U.S. 137, 142, 144-45, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008).

In a more recent, but pre-Johnson case, the Eighth Circuit applied the analytical framework applied in James to determine whether the Missouri offense of attempted robbery qualified as a predicate offense under 924(e)'s residual clause. United States v. Reid, 769 F.3d 990, 995 (8th Cir.2014). The court found it did not because, in contrast to the statute at issue in James, which required an overt act directed toward entry of a structure, the Missouri statute could be satisfied by preparatory conduct that does not pose the same risk of violent confrontation and physical harm posed by an attempt to enter a structure illegally. Id. The Missouri attempt statute at issue in Reid, like Nebraska's attempt statute, provided that a person commits attempted burglary "if he does any act which is a substantial step towards the commission of the offense," which would cover reconnoitering and possession of burglars' tools, which, under the Supreme Court's holding in James, is merely preparatory activity that does not pose the same risk of violent confrontation and physical harm posed by an attempt to enter a structure illegally. Id. at 994; see James, 550 U.S. at 204-05, 127 S.Ct. 1586. Because Ross was based on precedent that has since been abrogated, its continuing validity is questionable.

Further, the Guidelines commentary on which the Eighth Circuit relied in Ross is similarly infirm. The United States Sentencing Commission has proposed changes to the Guidelines' existing definition of a "crime of violence" in order to make the Guidelines consistent with the decision in Johnson. See United States Sentencing Commission, Proposed Amendment to the Sentencing Guidelines, (August 12, 2015), available at http://www.ussc.gov/amendment-process/reader-friendly-and-official-textamendments. Specifically, The Sentencing Commission proposes amending § 4B1.2 to eliminate the residual clause by deleting the language "or otherwise involves conduct that presents a serious potential risk of physical injury to another" from § 4B1.2(a)(2). Id. at 3. The Sentencing Commission seeks public comment on "whether the definitions of `crime of violence' and `controlled substance offense' should include attempts, conspiracies, and aiding and abetting." Id. at 14. The Commission indicates it intends to vote on the amendment as early as January 2016. See United States v. Smith, 628 Fed.Appx. 565, 567, No. 14-2216, 2015 WL 5796942, at *2 (10th Cir. Oct. 5, 2015).

III. DISCUSSION

A. Initial Guidelines Calculation

In making its initial Guidelines calculation, the court generally accepts the presentence investigation report, but, for the reasons set out below, finds the defendant's objection to the career offender enhancement should be sustained. The government concedes that Johnson applies to the career offender Guideline, but argues, in reliance on Ross, 613 F.3d at 809-10, that the Guidelines' residual clause is not implicated because the defendant's attempted burglary conviction qualifies as a predicate offense as an enumerated crime under § 4B1.2(a)(2) and not as a crime under the residual clause. The court finds the government's reliance on Ross is misplaced. First, the Eighth Circuit in Ross clearly based its holding on application of the residual clause of the Guidelines provision and did not find either burglary or attempted burglary were enumerated crimes. The enumerated crime of burglary was discussed only to provide guidance in making the determination under the residual clause. The court finds that the holding in Ross cannot be reconciled with the Supreme Court's determination in Johnson that the residual clause is void for vagueness.

Ross can no longer be considered good law in light of both Descamps and Johnson. The Eighth Circuit's holding in Reid shows that even post-Descamps, much less post-Johnson, a conviction for attempted burglary would not qualify as a predicate offense sufficient to enhance a sentence for a conviction for a violent felony.5 The Eighth Circuit Court of Appeals has signaled that the Johnson case is applicable in the context of the Guidelines and the government concedes that it is. Just as the iteration of the clause in 18 U.S.C. § 924(e) is unconstitutionally vague, so too is the residual clause of U.S.S.G. 4B1.2. Applying the elements-centric approach mandated by the Supreme Court in its recent line of cases, attempted burglary cannot qualify as a predicate offense under the enumerated crimes clause of the Guidelines provision because attempted burglary is not burglary — the elements of the two crimes differ. The only way the crime could qualify as a predicate offense would be under the residual clause, which has been declared unconstitutional. Accordingly, the court finds the defendant's objection to enhancement of his sentence under the career offender Guideline should be sustained. His conviction for attempted burglary cannot constitute a predicate offense for purposes of application of the career offender provision of the Guidelines.

The court thus finds the defendant's base offense level is 30, plus 2 for possession of a firearm in connection with the offense, less three for acceptance of responsibility, resulting in a total offense level of 29. The defendant's criminal history category is V. His sentencing range under the Guidelines is 140 to 175 months. Both parties urged the court to sentence at the low end of the Guidelines range.

The defendant has been in custody on state charges since October 20, 2014, for conduct that forms the basis of his criminal charge in this case. In order to assure that the defendant is credited for that time, the court finds his recommended low-end Guidelines sentence should be reduced by 12 months, resulting in a sentence of 132 months. See U.S.S.G. 5G1.3(b)(1). The parties have no objection to that procedure.

No Guidelines departure is at issue in this case. In consideration of the sentencing factors set forth in 18 U.S.C. § 3553(a), the court finds that a sentence of 132 months (eleven years), is sufficient, but not greater than necessary, to accomplish the goals of sentencing. This sentence is within the Guidelines sentencing range after application of U.S.S.G. 5G1.3. With respect to the nature of the offense, the court notes that distribution of methamphetamine is undoubtedly a serious offense. However, the defendant's addiction operates to less-en his culpability to some degree. The court has also considered the history and characteristics of the defendant. He is a thirty-two-year-old man with a significant criminal history, but many of his convictions are linked to drug abuse and addiction. The defendant's prospect for rehabilitation is also relevant to the determination of a reasonable sentence. This sentence will provide the defendant the opportunity to undergo the BOP's 500-Hour Intensive Drug Treatment Program. The defendant has not had the opportunity to undergo drug treatment, although it has been recommended.

In formulating this sentence, the court has considered the sentencing range established by the Guidelines and finds a Guidelines sentence, without application of the career offender Guideline, is appropriate in this case and satisfies the purposes of sentencing. In light of the defendant's criminal history, the court finds that a sentence including incarceration for some significant length of time is necessary to achieve the goals of sentencing, to establish some level of proportionality with respect to other drug trafficking crimes, and to reduce the perception of unwarranted disparity. A sentence of 132 months reflects the seriousness of the offense, promotes respect for the law and provides just punishment. Further, an eleven year sentence is sufficient to deter others from engaging in similar criminal conduct. The value of any additional prison time as a deterrent would be marginal.

A Judgment in accordance with the Sentencing Memorandum has issued. See Filing No. 40.