The opinion of the court was delivered by: Judge Jones
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
Pending before the Court is Defendant Kendrick McLaughlin's Objections to the Presentence Report ("PSR"). The Defendant's sole remaining objection is to the Defendant's classification as a career offender, based upon the Probation Officer's conclusion that the statutory sexual assault for which the Defendant was convicted in Pennsylvania is a crime of violence. The Defendant further argues for an additional departure in his calculated criminal history category.
For the following reasons, we shall sustain the Defendant's objection to his career offender classification. Furthermore, we shall grant the Defendant a departure in his assigned criminal history category pursuant to his argument that the category over-represents his criminal history and the likelihood that he will commit another offense.
On January 18, 2006, the Defendant, pursuant to a plea agreement (doc. 24), pled guilty before this Court to violations of 21 U.S.C. § 841(a)(1), distribution of a controlled substance and 18 U.S.C. § 924(c)(1)(A), possession of a firearm during a drug trafficking crime. At the conclusion of the guilty plea proceeding this Court ordered that the United States Probation Office generate a presentence investigation report ("PSR"). A presentence conference was held among this Court and counsel for the parties on May 3, 2006 at which time the Defendant's objections were discussed. A briefing schedule was ordered (doc. 37) and to date the objections have been fully briefed. Sentencing is scheduled for August 28, 2006.
Pursuant to §4B1.1 of the United States Sentencing Guidelines ("U.S.S.G."):
[a] defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.
A crime of violence is defined as any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that . . . has as an element the use, attempted use, or threatened use of physical force against the person or another. U.S.S.G. §4B1.2(a)(1). The Commentary to §4B1.2 states that "[c]rime of violence" includes . . . forcible sex offenses . . . Other offenses are included as "crime of violence" if
(A) that offense has as an element the use, attempted use, or threatened use of physical force against the person of another, or
(B) the conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted . . . by its nature, presented a serious potential risk of physical injury to another.
On July 9, 2002, the Defendant entered a guilty plea in the Dauphin County Court of Common Pleas to a two-count information charging statutory sexual assault, in violation of 18 Pa. Const. Stat. § 3122.1 and corruption of minors, in violation of 18 Pa. Const. Stat. § 6301. The Defendant was sentenced to 1 to 2 years imprisonment on the statutory sexual assault violation, followed by three years state probation on the corruption of minors violation.
In paragraph 26 of the PSR, the Probation Officer qualified the Defendant as a career offender and assigned him the corresponding criminal history category of VI. The Probation Officer supported his finding by submitting that the Defendant was forty years old at the time of the instant offense, which was a controlled substance offense, and that the Defendant had at least two prior felony convictions for crimes of violence. The Probation Officer considered the Defendant's ...