United States District Court, D. Nebraska
JOHN M. GERRARD, District Judge.
The Court has received the presentence investigation report and addendum in this case. The defendant has filed a motion for downward departure (filing 28). The defendant has also filed a sentencing statement (filing 29) in which he objects 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. The defendant has filed a motion for downward departure (filing 28) that the Court will construe as seeking both a downward departure within the Guidelines framework and variance from the Guidelines based on the § 3553(a) factors. The defendant argues, based on post-offense rehabilitation and his personal circumstances, that a sentence of probation is warranted. But most of the circumstances identified by the defendant are not specifically enumerated in Part K of Section 5 of the Guidelines, and therefore do not provide a basis for departure when the offense of conviction is a child crime or sexual offense. See, 18 U.S.C. § 3553(b)(2)(A)(ii); U.S.S.G. § 5K2.0(b); see also, e.g., United States v. Reilly, 662 F.3d 754, 759 (6th Cir. 2011). The Court will, nonetheless, consider the defendant's arguments insofar as they are relevant to a variance pursuant to § 3553(a).
The Court notes, however-and the defendant should be aware-that probation is not an authorized sentence for the defendant's conviction, because the minimum sentence for this offense is 5 years' imprisonment. See, 18 U.S.C. § 2252A(b)(1); 18 U.S.C. § 3561(a)(2); United States v. Blair, 530 F.3d 655, 656 (8th Cir. 2008); see also, e.g., United States v. Troy, 618 F.3d 27, 36-37 (1st Cir. 2010); United States v. Mueller, 463 F.3d 887, 888-93 (9th Cir. 2006).
3. The defendant also objects to the presentence report's inclusion of a four-level increase in the offense conduct for possessing material depicting sadistic or masochistic conduct. See filing 29. The defendant has not, however, contradicted the presentence report's description of the material-and some of the material described is indisputably sadistic as the Eighth Circuit has interpreted the relevant guideline. See, United States v. Dodd, 598 F.3d 449, 453 (8th Cir. 2010); United States v. Belflower, 390 F.3d 560, 562 (8th Cir. 2004); United States v. Diaz, 368 F.3d 991, 992 (8th Cir. 2004). The Court's tentative finding, therefore, is that the defendant's objection should be overruled. Of course, the government will have the burden to prove, at sentencing, that the enhancement applies. See, United States v. Benson, 715 F.3d 705, 708 (8th Cir. 2013); United States v. Thomas, 630 F.3d 1055, 1057 (8th Cir. 2011). And the Court will determine at sentencing whether the full four-level increase should be imposed under this Court's modified U.S.S.G. § 2G2.2 framework. See United States v. Abraham, 944 F.Supp.2d 723, 732-33 (D. Neb. 2013).
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 ...