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United States v. Garcia

United States District Court, Eighth Circuit

January 29, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
RAMON GARCIA, Defendant.

TENTATIVE FINDINGS

JOHN M. GERRARD, District Judge.

The Court has received the presentence investigation report (PSR) and addendum in this case. The defendant has objected to several aspects of the PSR and moved for a downward departure or variance. Filing 140. The defendant has requested a hearing to be held at sentencing.

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 such weight as they deserve 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 several aspects of the PSR and moved for a downward departure or variance. Filing 140. The Court will resolve the defendant's motion for departure or variance at sentencing. His objections require some further discussion.

First, the defendant disputes the probation officer's drug-quantity calculation. The probation officer found that the defendant should be held responsible for 34.5 kilograms of methamphetamine mixture, resulting in a base offense level of 38. PSR at ¶¶ 9-29, 37. The defendant has objected to this quantity determination and to the "factual basis in the (PSR) relied upon to reach that determination....'" PSR at p. 18. The defendant submits that a base offense level of 32 would be more appropriate.
It is the government's burden to prove drug quantity by a preponderance of the evidence. United States v. Young, 689 F.3d 941, 945 (8th Cir. 2012). And it is well settled that "[t]he PSR is not evidence. If the defendant objects to any of the factual allegations contained therein on an issue on which the government has the burden of proof... the government must present evidence at the sentencing hearing to prove the existence of the disputed facts." United States v. Mann, 701 F.3d 274, 310 (8th Cir. 2012). The government should therefore be prepared to present evidence as to the quantity of drugs attributable to the defendant. The Court will resolve this objection at sentencing.
The defendant next objects to the three-level enhancement for acting in a managerial or supervisory role, pursuant to U.S.S.G. § 3B1.1(b). See PSR at ¶¶ 31, 40 & pp. 19-20. As with the previous objection, the defendant objects generally to the factual basis for the enhancement. See, filing 140 at 2; PSR at p. 19. Again, the government should be ...

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