United States District Court, D. Nebraska
JOHN M. GERRARD, District Judge.
The Court has received the revised presentence investigation report (PSR) in this case. The defendant has filed an objection to the PSR. Filing 26.
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 pleaded guilty to illegal reentry, in violation of 8 U.S.C. § 1326(a). Filings 1 and 17. The applicable guideline provides for an enhanced offense level which varies, depending upon the nature of the defendant's previous convictions. U.S.S.G. § 2L1.2(b). In their Rule 11(c)(1)(B) plea agreement, the parties stipulated that defendant should receive a 4-level increase for a conviction "for any other felony, " pursuant to U.S.S.G. § 2L1.2(b)(1)(D). Filing 17 at 4. However, the probation officer determined that the defendant had, in fact, been previously convicted of a felony crime of violence, and that a 12-level increase was therefore appropriate, pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii). PSR at ¶¶ 16, 31 & pp. 18-19. The defendant has objected to this determination. Filing 26.
The previous conviction at issue is the defendant's 2002 conviction from Illinois for "mob action, " in violation of 720 Ill. Comp. Stat. § 5/25-1(a)(1). The defendant argues that this was not a crime of violence and asks the Court to apply the 4-level enhancement that the parties agreed upon. The government shares the defendant's position, and recommends that the Court accept the terms of the plea agreement. Filing 27. The Court is inclined to give the defendant the benefit of the plea agreement. As a practical matter then, the Court's tentative finding is that a 4-level enhancement is appropriate.
But in the interest of calculating a correct advisory Guidelines range, the Court will nonetheless consider whether another enhancement could potentially apply. Having done so, the Court tentatively finds that while the defendant's mob action conviction may not qualify as a "crime of violence" for purposes of a 12-level increase, it may constitute an "aggravated felony, " which warrants an 8-level increase under U.S.S.G. § 2L1.2(b)(1)(C).
For purposes of the 12-level enhancement under U.S.S.G. § 2L1.2, a "crime of violence" is defined to include several enumerated offenses (such as murder and arson), as well as any 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 ...