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United States v. Jordan

United States District Court, D. Nebraska

October 6, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
ISYS JORDAN, Defendant.

TENTATIVE FINDINGS

JOHN M. GERRARD, District Judge.

The Court has received the revised presentence investigation report and addendum in this case. There are no motions for departure or variance. The defendant has filed a sentencing statement (filing 205) in which she reasserts several objections 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's sentencing statement (filing 205) sets forth three specific objections to the presentence report:

(a) The defendant objects to the two-level enhancement for a vulnerable victim pursuant to U.S.S.G. § 3A1.1(b)(1). That twolevel enhancement applies "[i]f the defendant knew or should have known that a victim of the offense was a vulnerable victim, " who is defined as a victim of the offense of conviction "who is unusually vulnerable due to age, physical or mental condition, or who is otherwise particularly susceptible to the criminal conduct." Id., cmt. n.2.
There is little dispute that the victims in this case were vulnerable within the meaning of § 3A1.1(b)(1), and the defendant concedes that point. Filing 205 at 2; see generally United States v. Whitlow, 124 F.3d 218 (10th Cir. 1997) (unpublished table decision). But the defendant argues that she was "in all respects, kept in the dark about the nature of the conspiracy as well as the condition of the targets of the fraud." Filing 205 at 1-2. And when the defendant objects, it is the government's burden to prove the applicability of an enhancement by a preponderance of the evidence. See, United States v. Mustafa, 695 F.3d 860, 862 (8th Cir. 2012); United States v. Twiggs, 678 F.3d 671, 674 (8th Cir. 2012); United States v. Myers, 481 F.3d 1107, 1109-10 (8th Cir. 2007). The Court will, therefore, resolve this issue at sentencing.
(b) The presentence report recommends that the defendant receive a two-level downward adjustment pursuant to U.S.S.G. § 3B1.2(b) based on her minor role in the offense; the defendant argues that she should receive a four-level downward adjustment as a minimal participant within the meaning of U.S.S.G. § 3B1.2(a). Filing 205 at 2-3. To qualify for such an adjustment, the defendant must be "plainly among the least culpable of those involved in the conduct of a group." Id., cmt. n.4. "[T]he defendant's lack of knowledge or understanding of the scope and structure of the enterprise and of the activities of others is indicative of a role as minimal ...

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