May 6, 2013
UNITED STATES OF AMERICA, Plaintiff,
JAIME FRANCISCO BARRAZA, Defendant.
JOHN M. GERRARD, District Judge.
The Court has received the revised presentence investigation report in this case. The defendant has objected to the presentence report (filing 34) and filed a Motion for Variance (filing 35).
IT IS ORDERED:
1. The Court will consult and follow the Federal Sentencing Guidelines to the extent permitted and required by United States v. Booker, 543 U.S. 220 (2005), and subsequent cases. In this regard, the Court gives notice that, unless otherwise ordered, it will:
(a) give the advisory Guidelines respectful consideration within the context of each individual case and will filter the Guidelines' advice through the 18 U.S.C. § 3553(a) factors, but will not afford the Guidelines any particular or "substantial" weight;
(b) resolve all factual disputes relevant to sentencing by the greater weight of the evidence and without the aid of a jury;
(c) impose upon the United States the burden of proof on all Guidelines enhancements;
(d) impose upon the defendant the burden of proof on all Guidelines mitigators;
(e) depart from the advisory Guidelines, if appropriate, using pre- Booker departure theory; and
(f) in cases where a departure using pre- Booker departure theory is not warranted, deviate or vary from the Guidelines when there is a principled reason justifying a sentence different than that called for by application of the advisory Guidelines, again without affording the Guidelines any particular or "substantial" weight.
2. The defendant has objected to the presentence report insofar as it concludes that the defendant is not eligible for safety valve relief pursuant to U.S.S.G. § 5C1.2, and the resulting two-level reduction in the offense level pursuant to U.S.S.G. § 2D1.1(b)(16). Filing 34. The defendant disputes the presentence report's finding that the defendant has not "truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan" as required by § 5C1.2. Filing 34; Filing 36 at 3-5.
The Court will resolve that objection at sentencing. In doing so, the Court will be mindful of the fact that the safety valve is available so long as the government receives the information no later than the time of the sentencing hearing, even if a defendant's last-minute move to cooperate is a complete about-face. Deltoro-Aguilera v. United States, 625 F.3d 434, 437 n.3 (8th Cir. 2010); see also, United States v. Morones, 181 F.3d 888, 891 (8th Cir. 1999); United States v. Tournier, 171 F.3d 645, 646-47 (8th Cir. 1999). But the Court will also be mindful of the fact that the defendant has the burden to show affirmatively that he has satisfied each requirement for the safety value, including whether truthful information and evidence have been given to the government. United States v. Alvarado-Rivera, 412 F.3d 942, 947 (8th Cir. 2005).
3. The defendant has also filed a motion for variance (filing 35). The defendant suggests that a sentence of 120 months of imprisonment and 5 years of supervised release would be appropriate under § 3553(a). Filing 36 at 5-10. The Court will resolve that motion at sentencing.
4. Except to the extent, if any, that the Court has sustained an objection, granted a motion, or reserved an issue for later resolution in the preceding paragraph, the parties are notified that the Court's tentative findings are that the presentence report is correct in all respects.
5. If any party wishes to challenge these tentative findings, that party shall, as soon as possible (but in any event no later than three (3) business days before sentencing) file with the Court and serve upon opposing counsel an objection challenging these tentative findings, supported by a brief as to the law and such evidentiary materials as are required, giving due regard to the local rules of practice governing the submission of evidentiary materials. If an evidentiary hearing is requested, such filings should include a statement describing why a hearing is necessary and how long such a hearing would take.
6. Absent timely submission of the information required by the preceding paragraph, the Court's tentative findings may become final and the presentence report may be relied upon by the Court without more.
7. Unless otherwise ordered, any objection challenging these tentative findings shall be resolved at sentencing.