United States District Court, D. Nebraska
REVISED TENTATIVE FINDINGS
JOHN M. GERRARD, District Judge.
The Court has received the revised presentence investigation report (PSR) in this case. Bates has objected to the PSR (filing 143) and moved for a downward departure and variance (filing 141). The Court issued its tentative findings on July 3, 2014. Filing 151. After further consideration, the Court issues the following, revised tentative findings.
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. Bates has objected to several aspects of the PSR, and moved for a downward departure and variance. The Court begins with Bates' objections. Filing 143. Bates objects to paragraphs 32, 33, and 81 of the PSR on varying grounds. None of these objections affect his advisory sentencing Guidelines range, and the Court will resolve these objections at sentencing. Bates also asks that the PSR be amended to include corrected information regarding his family history. The Court has received and will consider the materials Bates has submitted. See filing 143 at 1-2; filing 144.
Bates has moved for a downward departure and variance on several grounds. Filing 141. He first argues that his Criminal History Category (III) overstates the seriousness of his criminal record, and that a downward departure under U.S.S.G. § 4A1.3 is warranted. The Court will resolve this aspect of Bates' motion at sentencing.
Bates next argues that a downward departure or variance is warranted based upon the nature of his arrest and conviction, which was the result of a reverse sting operation, in which an undercover agent and confidential informant worked with Bates and his codefendants to plan the armed robbery of a fictitious drug stash house. Bates claims that this amounted to outrageous government conduct, and that a downward departure or variance is therefore warranted. See, e.g., United States v. Williams, 720 F.3d 674, 685 (8th Cir. 2013). Finally,
Bates attacks the drug quantity attributed to him for sentencing purposes. This amount was based upon the purported amount of drugs that Bates was led to believe would be stolen from the stash house: four pounds of methamphetamine and four kilograms of cocaine. Filing 117 at 3. Bates argues that the quantity was inflated by government agents to ensure that he would receive a higher penalty, and that this amounted to sentencing entrapment. See United States v. Searcy, 233 F.3d 1096, 1098-99 (8th Cir. 2000). He asks that the Court instead hold him responsible (for purposes of his Guidelines sentencing range) for less than 5 grams of cocaine and less than 2.5 grams of methamphetamine (the lowest amounts ...