MEMORANDUM OPINION AND ORDER REGARDING CALCULATION OF CRIMINAL HISTORY

MARK W. BENNETT, District Judge.

                        TABLE OF CONTENTS

  I.  INTRODUCTION ...............................................................1066

      A.  Factual Background .....................................................1066
      B.  Procedural Background ..................................................1067
      C.  Arguments Of The Parties ...............................................1069

 II.  LEGAL ANALYSIS .............................................................1070

      A.  Standards For Interpretation Of Sentencing Guidelines ..................1070
      B.  The Applicable Guideline ...............................................1071

          1.  Text of the guideline ..............................................1071
          2.  Tests for "similarity ..............................................1071
          3.  Applications of the guideline ......................................1072

      C.  Interpretation Of The Guideline ........................................1076
      D.  Application Of The Guideline ...........................................1077
      E.  Alternative Reasons For Rejecting The Calculation ......................1079

III.  CONCLUSION .................................................................1080

In this case, the defendant pleaded guilty to one count of conspiracy to distribute methamphetamine and one count of distributing methamphetamine. Prior to sentencing, he challenged the scoring of one criminal history point for his prior conviction for contributing to the delinquency of a minor, pursuant to U.S.S.G. § 4A1.2(c). The defendant contends that "counting" this prior conviction improperly changes his criminal history category from I to II and increases his advisory sentencing guidelines range from 135 to 168 months to 151 to 188 months. I now enter this memorandum opinion and order regarding the calculation of the defendant's criminal history.

I. INTRODUCTION

A. Factual Background

According to the final PSIR (docket no. 73), defendant Mark Paul Weller came to the attention of law enforcement officers on April 24, 2014, when they responded to a 911 emergency call at co-defendant Christopher Julin's residence. The 911 call had been made by Julin's six-year-old child, who claimed that his father would not wake up. When officers arrived at Julin's residence, they found him asleep and woke him up, but they also found methamphetamine. Julin told law enforcement officers that Weller was his primary drug source at that time. PSIR, ¶ 4.

Thereafter, on May 7, 2014, law enforcement officers conducted a controlled drug buy from Weller in rural Schleswig, Iowa, during which Weller offered to sell an undercover agent four ounces (113.4 grams) of methamphetamine for $4,000, but the undercover agent actually purchased two ounces (55.89 grams) for $2,000. Testing showed the methamphetamine to be 99.6% pure, resulting in 112.94 grams offered by Weller. Id. at ¶ 5. Further investigation showed that Weller made additional sales of methamphetamine and traded methamphetamine with Julin for an SKS rifle. Weller was arrested on June 9, 2014, after a traffic stop of a vehicle that he was driving during which methamphetamine was found on a passenger in the vehicle, Weller's sister, and the SKS rifle was found on the front seat area between Weller and another passenger. See id. at ¶¶ 6-13. The PSIR attributed 336.44 grams of actual (pure) methamphetamine and 2.0554 kg of methamphetamine mixture to Weller, resulting in a marijuana equivalency of 10,839.56 kg. Id. at ¶ 19.

The PSIR reflects that Weller had only two prior arrests leading to criminal convictions. Weller was arrested in Crawford County, Iowa, on September 15, 2005, when he was 18 years old, which led to his conviction for operating a vehicle while intoxicated. Weller was sentenced on that conviction, on December 12, 2005, to 30 days in jail, with all but 28 days suspended, one year of probation, and a fine. PSIR at ¶ 30. Weller's probation on that offense was extended to December 12, 2007, by an Order filed on December 11, 2006, but Weller was actually discharged from probation on October 3, 2007. Id.

Weller's second arrest leading to a conviction was on May 11, 2006, when he was 19 years old, in Woodbury County, Iowa. That arrest led to his conviction of an open container offense and contributing to the delinquency of a minor. Id. at ¶ 31. The PSIR describes the conduct leading to this arrest as follows:

PSIR at ¶ 31. Weller contends that this incident happened early in the morning of the day after his high school graduation. Defendant's Sentencing Memorandum And Brief In Support Of Motion For Downward Variance (docket no. 76), 7. The criminal Complaint & Affidavit, id., Exhibit C (docket no. 76-3), filed May 11, 2006, in the Iowa District Court For Woodbury County, specifically charges that Weller "did contribute or knowingly encourage, contribute, or in any manner cause a minor to violate any law of this state or any ordinance of an[y] city" and explains that "the defendant was with two juveniles that were out past there [sic] curfew." On May 11, 2006, Weller was given a $50 fine for the open container offense and a $50 fine for the contributing to the delinquency of a minor offense. PSIR at ¶ 31.

B. Procedural Background

Weller was originally charged as the sole defendant in a two-count Indictment (docket no. 2), handed down July 24, 2014, charging him with methamphetamine offenses. Approximately a month later, on August 27, 2014, a grand jury handed down a Superseding Indictment (docket no. 7) against both Weller and Julin. Weller and Julin were both charged, in Count 1, with conspiracy, from about 2013 and continuing to about July 2014, to distribute 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine which contained 50 grams or more of actual (pure) methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. Weller was also charged, in Count 2, with distributing 50 grams or more of a mixture or substance containing a detectable amount of methamphetamine which contained 5 grams or more of actual (pure) methamphetamine, on or about May 7, 2014, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). Weller initially pleaded not guilty to both of the charges against him on September 4, 2014, see Arraignment Minutes (docket no. 25), and a jury trial was set for November 3, 2014. See Order Setting Jury Trial In Criminal Case (docket no. 28).

After various continuances of the trial date, however, Weller entered a guilty plea before United States Magistrate Judge Leonard T. Strand to both counts against him, without a plea agreement, on December 17, 2014. See Plea Hearing Minutes (docket no. 51); Report And Recommendation Concerning Guilty Plea (docket no. 52). I accepted Judge Strand's recommendation to accept Weller's guilty plea by Order (docket no. 55), filed that same day. Weller's sentencing hearing was originally set for April 23, 2015, see Order (docket no. 71), but was ultimately reset for May 5, 2015. See Order (docket no. 78).1

In a Draft PSIR (docket no. 70), the probation officer scored 1 criminal history point for Weller's conviction for contributing to the delinquency of a minor (and the open container offense). See Draft PSIR at ¶ 30. The probation officer determined that, with one other criminal history point for Weller's prior conviction for operating a vehicle while intoxicated, Weller's criminal history category was II, see id. at ¶ 33, and that, with other calculations, this resulted in an advisory sentencing guidelines range of 151 to 188 months of imprisonment. Id. at 65. Weller objected on the ground that the conviction for contributing to the delinquency of a minor was not "scoreable" under U.S.S.G. § 4A1.2(c). See Objection To Draft PSIR (docket no. 72).

In the final PSIR (docket no. 73), the probation officer agreed that the open container conviction was not "scoreable," but concluded that the conviction for contributing to the delinquency of a minor was "scoreable." Id. at ¶ 31 (Probation Officer's Response). The probation officer pointed out that IOWA CODE § 709A.1 identifies several ways in which the offense of contributing to the delinquency of a minor can be committed, but that "[i]t does not appear the sentencing order specified which subsection of 709A the defendant pled guilty to." Id. The probation officer then concluded,

PSIR at ¶ 31. The probation officer acknowledged, however, that, "if the Court agrees with the defendant, the Criminal History Category would be I, which would establish an advisory guideline range of 135 to 168 months." Id.2

On April 15, 2015, Weller filed a Sentencing Memorandum And Brief In Support Of Motion For Downward Variance (Sentencing Memorandum) (docket no. 76). In his Sentencing Memorandum, Weller, inter alia, reiterated his prior objection to "scoring" a criminal history point for his prior conviction for contributing to the delinquency of a minor, pursuant to U.S.S.G. § 4A1.2(c). It is this challenge to his criminal history calculation that I will address in this opinion.3 On April 21, 2015, the prosecution filed a Response To Defendant's Sentencing Memorandum And Motion For Downward Variance (docket no. 80).

I held Weller's sentencing hearing on May 5, 2015, and I now enter this written ruling concerning Weller's challenge to the criminal history calculation in the PSIR.

C. Arguments Of The Parties

In his Sentencing Memorandum, Weller argues that contributing to the delinquency of a minor is similar to several offenses listed under U.S.S.G. § 4A1.2(c)(1) and (2), and, thus, his conviction for this offense is not "scoreable." Weller urges me to follow Senior Judge Donald E. O'Brien's reasoning in United States v. Leon-Alvarez, No. CR05-4126-DEO, 2008 WL 5429724 (N.D.Iowa Dec. 31, 2008), addressing a similar question. He admits that contributing to the delinquency of a minor, as defined in IOWA CODE § 709A.1, is not listed in either § 4A1.2(c)(1) or § 4A1.2(c)(2). Thus, he argues, I must determine whether that offense is similar to any of the listed offenses, using the "common sense approach," involving consideration of several factors, that is now mandated in Application Note 12. He points out that, in Leon-Alvarez, Judge O'Brien acknowledged that contributing to the delinquency of a minor is not the same "element-for-element" as any listed offense in either subsection of § 4A1.2(c), but that, using the "common sense approach," it was not an offense serious enough to warrant increased punishment for a subsequent offense. Using this approach, he argues, Senior Judge O'Brien found that contributing to the delinquency of a minor was similar to offenses in both subsections of § 4A1.2(c).

Weller argues that his prior conviction for contributing to the delinquency of a minor is also a simple misdemeanor that was punishable by a maximum of 30 days in jail or a $500 fine. Thus, he argues that this offense carries less serious punishments than can be imposed for several of the "listed" offenses in § 4A1.2(c). He points out that his actual punishment was even less severe, consisting of only a $50 fine, and that the "delinquent" behavior to which he contributed was the petty offense of minors being out past curfew. He also argues that this offense says little about the likelihood of recurring criminal conduct and has nothing to do with the methamphetamine-dealing conduct for which he faces a mandatory minimum sentence of 10 years.

Weller reiterated these arguments at his sentencing hearing. Also, in response to my questions, defense counsel suggested that it might be within my discretion to disagree with the applicable guideline on policy grounds, and that it would be within my discretion to depart or vary from the advisory sentencing guidelines range on the basis of over-representation of his criminal history.

In its Response, the prosecution admits that the scoring of Weller's criminal history "presents a close question." Response at 2. Nevertheless, the prosecution concurs with the probation officer's analysis, in the PSIR, in response to Weller's objection. The prosecution also contends that the limited circuit-based case law on the issue does not support Weller's argument. In particular, the prosecution points out that the elements of contributing to the delinquency of a minor are not really like nor do they share enough similarities to those of any of the listed offenses in § 4A1.2(c). The prosecution admits that the actual facts of Weller's conviction for contributing to the delinquency of a minor do not present a compelling reason to count the conviction in Weller's criminal history calculation. Nevertheless, the prosecution argues, if this conviction is "counted," I can consider the underlying facts of the offense in an alternative manner, such as finding over-representation of criminal history or granting a variance, to achieve a reasonable sentence.

The prosecution also reiterated its written arguments at Weller's sentencing hearing, including its position that over-representation of criminal history might be a more appropriate way to address the pettiness of the prior conviction. The prosecution did opine that Weller was entitled to some relief in this case.

II. LEGAL ANALYSIS

A. Standards For Interpretation Of Sentencing Guidelines

As the Eighth Circuit Court of Appeals has explained, "`The Guidelines reflect the will of Congress and a Congressional desire for uniform and fair sentencing.'" United States v. Armstrong, 782 F.3d 1028, 1037 (8th Cir.2015) (quoting United States v. Townsend, 408 F.3d 1020, 1023 (8th Cir.2005)). Consequently, courts "`employ basic rules of statutory construction when interpreting the Guidelines.'" Id. More specifically,

United States v. Collins, 754 F.3d 626, 630-31 (8th Cir.2014). Also, courts often look to dictionaries to determine the ordinary meaning of words in the Guidelines. Armstrong, 782 F.3d at 1036-37. The situation is different, if the guideline is ambiguous:

United States v. Parker, 762 F.3d 801, 806-07 (8th Cir.2014).

The Eighth Circuit Court of Appeals reviews a district court's interpretation and application of the sentencing guidelines de novo. See, e.g., United States v. Sacus, 784 F.3d 1214, 1219-20 (8th Cir. 2015).

B. The Applicable Guideline

1. Text of the guideline

The Sentencing Guideline at the center of Weller's challenge is U.S.S.G. § 4A1.2(c), which provides, as follows:

U.S.S.G. § 4A1.2(c); see also United States v. Ruacho, 746 F.3d 850, 853 (8th Cir.2014) (describing this provision).

2. Tests for "similarity"

Prior to an amendment of the pertinent guideline in 2007, the Eighth Circuit Court of Appeals "adopted an `elements' or `essential characteristics' test to determine whether two crimes were `similar' for purposes of section 4A1.2(c)." United States v. Barrientos, 670 F.3d 870, 871 (8th Cir. 2012) (citing United States v. Borer, 412 F.3d 987, 992 (8th Cir.2005)). However,

Barrientos, 670 F.3d at 871-72. More specifically, Application Note 12 explains,

U.S.S.G. § 4A1.2, Application Note 12. The Eighth Circuit Court of Appeals "ha[s] expressly adopted the test from Amendment 709, eschewing our previous `"elements" or "essential characteristics" test.'" Ruacho, 746 F.3d at 854 (quoting Barrientos, 670 F.3d 870, 871 (8th Cir. 2012), with internal citations omitted).

3. Applications of the guideline

The Eighth Circuit Court of Appeals has actually applied § 4A1.2(c) only a few times since Amendment 709 changed the applicable test.4 Although the court concluded, in United States v. Barrientos, 670 F.3d 870 (8th Cir.2012), that the proper test of "similarity" under § 4A1.2(c) is the test adopted by the Sentencing Commission in Amendment 709, the court did not, in fact, apply that test in that case. 670 F.3d at 871-72. Rather, the court concluded that the district court had mistakenly relied on a holding in one of its prior decisions, applying the "elements" test, that liquor consumption by persons under 21 was entitled to a criminal history point. Id. at 873. The court found that "[a]bsent from the district court's determination ... was any discussion of, or reference to, the factors now listed under the commentary to section 4A1.2." Id. at 873. That failing required the appellate court to reverse the district court's sentence and to remand for resentencing. Id. Thus, the Barrientos decision provides no insight on how the factors in the proper test under § 4A1.2(c) are to be applied.

In the subsequent decision of the Eighth Circuit Court of Appeals in Ruacho, the court did actually apply the multi-factor test to determine whether convictions for possession of a small amount of marijuana and possession of marijuana in a motor vehicle, under Minnesota law, should be counted under § 4A1.2(c). Ruacho, 746 F.3d at 853-56. As to comparison of possession of a small amount of marijuana to the listed offenses of public intoxication and disorderly conduct, the court explained:

Ruacho, 746 F.3d at 854-55 (footnote omitted).

The court found that one of its prior decisions, United States v. Foote, 705 F.3d 305 (8th Cir.2013), had "already decided the culpability and recidivism factors." Ruacho, 746 F.3d at 855. The court explained,

Ruacho, 746 F.3d at 855. Based on its analysis under Amendment 709, the court concluded that the defendant had "failed to demonstrate that possession of a small amount of marijuana is sufficiently similar to public intoxication, disorderly conduct, or any other enumerated offense," and that no other federal appellate court had held that a prior conviction for such an offense was not countable. Id. Thus, the defendant in that case was properly awarded a criminal history point for his petty misdemeanor violation for possession of a small amount of methamphetamine. Id.

In Ruacho, the court performed essentially the same analysis, and reached essentially the same conclusions, as to each of the factors when it considered whether a prior conviction for possession of marijuana in a motor vehicle should "count" in the defendant's criminal history. Id. at 855-56. As to the third "elements" factor, however, the court concluded that, while there was an "overlap" in the operation of a motor vehicle element of the prior conviction and the listed reckless or careless driving offenses, that "overlap" was not enough to weigh in favor of not counting the prior conviction. Id. at 856. This was so, because the prior conviction was listed in a different chapter of the Minnesota criminal statutes, and such limited commonality would preclude counting criminal history points for several driving-related offenses like driving under the influence of alcohol. Id. (citing United States v. Perez de Dios, 237 F.3d 1192, 1199 (10th Cir. 2001) (concluding that "superficial similarity" may be overshadowed by "significant differences")).

I have found nothing in post-amendment decisions of the Eighth Circuit Court of Appeals or other federal circuit courts of appeals suggesting that any one of the five factors is determinative by itself. Rather, in Ruacho, the court specifically referred to the test under Amendment 709 and Application Note 12 as a "multi-factor balancing test." Ruacho, 746 F.3d at 853. The court in Ruacho certainly considered the lack of any overlap in elements between possession of a small amount of marijuana and the listed offenses of public intoxication and disorderly conduct to be important. It also considered that only slight overlap in elements between possession of marijuana in a motor vehicle and reckless or careless driving was not enough to establish the required similarity. Even so, the court's analysis did not simply end with those determinations. Id. at 854-55, 856. Also, the Eleventh Circuit Court of Appeals has recognized that "the five-factor test under section 4A1.2(c) requires that we consider the underlying facts of [the defendant's prior] conviction," United States v. Garcia-Sandobal, 703 F.3d 1278, 1284 (8th Cir.2013) (emphasis added), so that a "categorical" analysis of the underlying offense is not enough.

I have not found, and the parties have not cited, any decision of the federal circuit courts of appeals after Amendment 709 became effective that considered whether or not a prior conviction for contributing to the delinquency of a minor should be "counted" under § 4A1.2(c). But see United States v. Leon-Alvarez, 532 F.3d 815 (8th Cir.2008) (remanding, because the district court's refusal to count a 1993 conviction for contributing to the delinquency of a minor was reversible error, where the district court had considered § 4A1.2(c) "advisory," allowing him to reject counting the offense because it was "akin" to listed offenses, without conducting the mandatory guidelines calculation of the defendant's criminal history category); United States v. Overholt, 307 F.3d 1231, 1252-53 (10th Cir.2002) (pre-amendment case, cited by the prosecution, here, reviewing for plain error assessing one criminal history point for contributing to the delinquency of a minor, where the defendant did not object at sentencing, and considering only whether that prior offense was "plainly similar" to a listed offense). One district court decision addressing the matter did so only cursorily. See United States v. Watson, No. 2:09cv195, 2009 WL 3233468, *9 (E.D.Va. Oct. 7, 2009) (§ 2255 decision finding no ineffective assistance of counsel in failing to challenge a criminal history point for contributing to the delinquency of a minor, because counsel's objection would have made no difference, where the district court reasonably could have and would have found the criminal history point applied with no analysis of how the multi-factor test would lead to this conclusion). On the other hand, a decision by Senior Judge O'Brien in our district, in United States v. Leon-Alvarez, No. CR05-4126-DEO, 2008 WL 5429724 (N.D.Iowa Dec. 31, 2008), did provide a more thorough application of the multi-factor analysis mandated by Amendment 709 and Application Note 12.

In Leon-Alvarez, Senior Judge O'Brien's multi-factor analysis was as follows:

Leon-Alvarez, 2008 WL 5429724 at *5-*6 (footnotes omitted). For these reasons, Judge O'Brien declined to "count" the defendant's prior conviction for contributing to the delinquency of a minor in that defendant's criminal history calculation. Id. at *6.

C. Interpretation Of The Guideline

My task begins with interpretation of § 4A1.2(c), and, more specifically, with an examination of the plain language of the guideline. Collins, 754 F.3d at 630-31. I note that the guideline states that it applies to "the following prior offenses and offenses similar to them." U.S.S.G. § 4A1.1(c)(1) and (2). Because this language refers to "offenses similar to them," i.e., similar to listed offenses, not merely similar to a listed offense, this language is, at best, ambiguous as to whether it requires a comparison of a prior offense to a single specific listed offense, or to the listed offenses as a group. Because I conclude that either reading is plausible, I must apply the rule of lenity and resolve the resulting ambiguity in the defendant's favor. Parker, 762 F.3d at 806-07. Such lenity, here, would place more emphasis on the comparison of the character of the prior offense and the character of the listed offenses as a group, and less emphasis on any comparison of the prior offense with a specific listed offense. Indeed, this conclusion is consistent with the multi-factor test in Amendment 709 and Application Note 12, which plainly de-emphasized an offense-to-offense comparison and similarity of elements of the prior offense with the elements of a single listed offense by making "the elements of the [prior] offense" only one of several factors that must be balanced. See U.S.S.G. § 4A1.2(c), Application Note 12. It is also consistent with the statement of the factors in the multi-factor test. The first factor invites "comparison of punishments imposed for the listed and unlisted offenses," see id. (emphasis added), which, again, suggests consideration of the listed offenses as a group. The second, fourth, and fifth factors, read in context, plausibly suggest — and certainly do not unambiguously exclude — comparison of the prior offense to the listed offenses as a group. Even to the extent that the guideline and the test can be read to require a comparison of the prior offense to a specific listed offense, the multi-factor test does not establish any priority or hierarchy among the listed factors, such that any one of them might be determinative, but requires a balancing of all of the relevant factors. See Ruacho, 746 F.3d at 853 (describing the test as a "multi-factor balancing test").

Furthermore, the plain language of the test of "similarity" established by Amendment 709 and Application Note 12 does not make the five listed factors the exclusive factors that a court can consider. Rather, they establish "a common sense approach that includes consideration of relevant factors such as" the five listed factors. See U.S.S.G. § 4A1.2(c), Application Note 12 (emphasis added). Thus, a district court may consider other "relevant factors," besides those listed, which may include, for example, how the prior offense compares to the listed offenses as a group. See, e.g., United States v. Potes-Castillo, 638 F.3d 106, 109-10 (2d Cir.2011) (stating that, under § 4A1.2(c)(1), "misdemeanor and petty offenses of the type listed in section 4A1.2(c)(1) are excluded provided, among other things, that the sentences imposed were not too severe" (emphasis added)). The possibility that other factors could be relevant certainly justifies the determination by the Eleventh Circuit Court of Appeals that "the five-factor test under section 4A1.2(c) requires that we consider the underlying facts of [the defendant's] prior conviction." Garcia-Sandobal, 703 F.3d at 1284.

D. Application Of The Guideline

Both the probation officer and the prosecution argue that the apparent lack of any similarity of the elements of Weller's prior offense of contributing to the delinquency of a minor and the elements of any specific listed offense is fatal to his argument that this prior offense does not "count" in the calculation of his criminal history. This argument is incorrect as a matter of law, in light of Amendment 709 and Application Note 12, which rejected an "elements" test and adopted a multi-factor test. See Ruacho, 746 F.3d at 854 (citing Barrientos, 670 F.3d at 871). It is also incomplete as an application of the multi-factor test, which does not give any determinative importance to the single factor of "the elements of the [prior] offense." U.S.S.G. § 4A1.2, Application Note 12. It is also wrong as a matter of fact. See Garcia-Sandobal, 703 F.3d at 1284.

As to factual error, the probation officer — and, by extension, the prosecution, which adopted the probation officer's argument — suggest that "[i]t does not appear the sentencing order specified which subsection of 709A the defendant pled guilty to." PSIR at ¶ 31 (Probation Officer's Response). The criminal Complaint & Affidavit, filed May 11, 2006, in the Iowa District Court For Woodbury County, specifically charges that Weller "did contribute or knowingly encourage, contribute, or in any manner cause a minor to violate any law of this state or any ordinance of an[y] city" and explains that "the defendant was with two juveniles that were out past there [sic] curfew." Defendant's Sentencing Memorandum, Exhibit C (docket no. 76-3). Thus, Weller's prior offense plainly fell within IOWA CODE § 709A.1(3), which makes it unlawful "[t]o knowingly encourage, contribute, or in any manner cause such child to violate any law of this state, or any ordinance of any city." IOWA CODE § 709A.1(3) (emphasis added). The parties have not cited, and I have not found, any state law establishing the curfew in question, so that curfew must have been established by a city ordinance.

Furthermore, "encourag[ing]" and "causing" a child to violate a curfew law, as defined in the Iowa statute prohibiting contributing to the delinquency of a minor, is no more than "aiding and abetting" a child to violate the curfew ordinance. See State v. Hearn, 797 N.W.2d 577, 580 (Iowa 2011) ("To sustain a conviction under a theory of aiding and abetting, `the record must contain substantial evidence the accused assented to or lent countenance and approval to the criminal act by either actively participating or encouraging it prior to or at the time of its commission.'" (quoting State v. Ramirez, 616 N.W.2d 587, 591-92 (Iowa 2000), overruled on other grounds by State v. Reeves, 636 N.W.2d 22, 25-26 (Iowa 2001))). A city ordinance violation is a prior offense that is never counted under U.S.S.G. § 4A1.2(c)(2). "The elements of a curfew violation are also, in turn, comparable to the elements of "loitering," another listed offense that is never counted, U.S.S.G. § 4A1.2(c)(2), which requires proof of remaining in any one place with an apparent harmful purpose of effect." See State v. Showers, 845 N.W.2d 436, 442-46 (Iowa 2014) (discussing the requirements for a constitutional prohibition on "loitering"); and compare United States v. Hines, 628 F.3d 101, 109 (3d Cir.2010) ("A person loiters, within the meaning of the Guidelines, merely by wandering, prowling, or remaining in a public place."). Thus, unlike the prior offenses at issue in Ruacho, which had no overlapping elements or only slight overlap of elements with the listed offenses identified, 746 F.3d at 854-55, 856, the elements of Weller's prior offense of contributing to the delinquency of a minor substantially overlap the elements of at least two "listed" offenses in § 4A1.2(c). Compare Leon-Alvarez, 2008 WL 5429724 at *5 (finding no similarity between the elements of a prior offense of contributing to the delinquency of a minor and listed offenses).

Putting the "elements" factor in its proper context as one of the five listed factors in the five-factor test, see U.S.S.G. § 4A1.2(c), Application Note 12, I find that all of those other factors weigh in favor of not counting Weller's prior offense. As to the first two factors — comparison of punishments and perceived seriousness of the offense as indicated by level of punishment, see U.S.S.G. § 4A1.2, Application Note 12(A) — contributing to the delinquency of a minor in violation of IOWA CODE § 709A.1(3) was a simple misdemeanor that was punishable by a maximum of 30 days in jail or a $500 fine. See IOWA CODE § 903.1(1)(a) (2006). Weller has shown that this is less serious punishment than could have been imposed for several of the "listed" offenses in § 4A1.2(c). See Defendant's Sentencing Memorandum, 6-7 (tables of simple and serious misdemeanors, as defined by Iowa statutes and ordinances, listed in § 4A1.2(c)(1) and (2)). Also, considering the "underlying facts," see Garcia-Sandobal, 703 F.3d at 1284, Weller was given no jail time and a fine of $50. Again, Weller has shown that his actual punishment was far less than the punishments that could have been imposed for many of the listed offenses in both § 4A1.2(c)(1) and § 4A1.2(c)(2). See Defendant's Sentencing Memorandum, 6-7 (tables of simple and serious misdemeanors, as defined by Iowa statutes and ordinances, listed in § 4A1.2(c)(1) and (2)). Thus, these two factors weigh in Weller's favor, and the prosecution did not argue differently in its Response To Defendant's Sentencing Memorandum And Motion For Downward Variance (docket no. 80). See Ruacho, 746 F.3d at 854 (finding that these two factors weighed in the defendant's favor, where the prosecution conceded the point); Leon-Alvarez, 2008 WL 5429724 at *5 (the mild punishment for the petty offense of contributing to the delinquency of a minor, involving keeping a girl who appeared to be intoxicated out past curfew, weighed against awarding the prior offense a criminal history point).

The remaining two factors are the level of culpability involved and the degree to which the commission of the offense indicates a likelihood of recurring criminal conduct (recidivism). See U.S.S.G. § 4A1.2, Application Note 12(A); Ruacho, 746 F.3d at 855 (considering these factors and describing the latter one as the "recidivism" factor). Unlike the situation in Ruacho, there is no prior precedent of the Eighth Circuit Court of Appeals explaining the weight to be given to these factors as they relate to Weller's prior offense. See 746 F.3d at 855 (citing Foote, 705 F.3d at 308). Nevertheless, it is difficult to describe the offense of contributing to the delinquency of a minor, at least as to encouraging minors to violate a curfew ordinance, as suggesting a "calculating," "resourceful," or "dangerous" criminal, particularly in comparison to the offenses listed in § 4A1.2(c). Compare id. at 855 (quoting Foote, 705 F.3d at 308); see also Leon-Alvarez, 2008 WL 5429724 at *6 (the offense of contributing to the delinquency of a minor by keeping a girl who appeared to be intoxicated out past curfew was not particularly "blameworthy"). With such a prior offense — particularly in the context of the perfectly ordinary misconduct of new high school graduates celebrating graduation past the appointed curfew for some of them — there is not the merest hint of a correlation to recidivism. Compare id.; see also Leon-Alvarez, 2008 WL 5429724 at *6 (concluding that the "light sentence" actually imposed for contributing to the delinquency of a minor, suggested "a low level of culpability and low predictive capacity for future criminality"). Thus, these two factors also weigh strongly in favor of not counting Weller's prior offense in his criminal history calculation.

It might seem reasonable to consider, as an additional "relevant factor" under the multi-factor test in § 4A1.2(c), whether I could, as the prosecution suggests, take into account the underlying facts of the offense in an alternative manner, such as finding overrepresentation of criminal history or granting a variance, to achieve a reasonable sentence. I will not do so, however, because, prior to Senior Judge O'Brien's opinion on remand, the Eighth Circuit Court of Appeals had made clear that it is reversible error for a district court not to make a guidelines criminal history calculation under § 4A1.2(c). See Leon-Alvarez, 532 F.3d at 815 (remanding, because the district court's refusal to count a 1993 conviction for contributing to the delinquency of a minor was reversible error, where the district court had considered § 4A1.2(c) "advisory," allowing him to reject counting the offense because it was "akin" to listed offenses, without conducting the mandatory guidelines calculation of the defendant's criminal history category).

Balancing all of the relevant factors, as required by § 4A1.2, Application Note 12, I conclude that Weller's prior conviction for contributing to the delinquency of a minor, consisting of encouraging minors to violate a curfew ordinance, should not be awarded a criminal history point.

E. Alternative Reasons For Rejecting The Calculation

In the alternative, even if I did count Weller's prior conviction against him in calculating his criminal history, I would still conclude that a guideline sentence in the range of 151 to 188 months is excessive, in light of the factors in 18 U.S.C. § 3553(a).5 Specifically, it is simply unnecessary to reflect the seriousness of the charged offense, promote respect for the law, provide just punishment for the charged offense, adequately deter criminal conduct, protect the public from further crimes by Weller, or provide Weller with any needed treatment to impose an additional 16 to 20 months of imprisonment. Indeed, I believe that imposing such additional imprisonment based solely on Weller's prior petty offense would encourage disrespect for the law and simply be unjust.6

III. CONCLUSION

For these reasons, I declined to count Weller's prior conviction for contributing to the delinquency of a minor in his criminal history calculation, pursuant to U.S.S.G. § 4A1.2(c), and I determined that, as a result, his criminal history category was I, and his advisory sentencing guidelines range was 135 to 168 months.

IT IS SO ORDERED.