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United States v. Mateo-Francisco

United States District Court, Eighth Circuit

August 29, 2013

UNITED STATES OF AMERICA, Plaintiff,
v.
ANDRES MATEO-FRANCISCO, Defendant.

TENTATIVE FINDINGS

JOHN M. GERRARD, District Judge.

The Court has received the revised modified presentence investigation report in this case. There are no motions for departure or variance. The defendant has filed an objection (filing 25) to the presentence report.

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. There are no motions that require resolution at sentencing. The defendant has filed an objection (filing 25) to the presentence report.

The issue raised by the objection is whether the defendant's 2006 conviction for terroristic threats should be considered a "crime of violence" for purposes of applying the 16-level enhancement provided by U.S.S.G. § 2L1.2.
"Crime of violence" means any of the following offenses under federal, state, or local law: Murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses (including where consent to the conduct is not given or is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced), statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, or any other offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another.
§ 2L1.2 cmt. n.1(B)(iii) (emphasis supplied). Because terroristic threats is not one of the specified offenses, it must involve the "threatened use of physical force " for a 16-level enhancement to be applied. § 2L1.2 (emphasis supplied). "Physical force" has been defined as "violent force-that is, force capable of causing physical pain or injury to another person.'" United States v. Williams, 690 F.3d 1056, 1067-68 (8th Cir. 2012) (quoting Johnson v. United States, 559 U.S. 133, 140 (2010) (defining "physical force" under the Armed Career Criminal Act)); see also United States v. Bartel, 698 F.3d 658, 661 (8th Cir. 2012) ...

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