United States District Court, D. Nebraska
JOHN M. GERRARD, District Judge.
The Court has received the presentence investigation report (PSR) in this case. Kuta has objected and moved for a variance. Filings 31, 32, and 34. The government has also filed a statement regarding the PSR, as well as a brief and materials in support of its brief. Filings 38, 39, and 40.
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. Kuta has objected and moved for a variance. Filings 31, 32, and 34. In his motion for a variance, Kuta asks for a two-level reduction in the base offense level (and, as a result, in the final offense level) based upon the amendments to U.S.S.G. § 2D1.1 that became effective on November 1, 2014. See, United States Sentencing Commission (U.S.S.C.), Guidelines Manual, Supplement to App'x C, 64-74 (Nov. 1, 2014); U.S.S.C., Sentencing Guidelines for United States Courts, 79 Fed. Reg. 25, 996, 26, 001-06 (May 6, 2014). When Kuta moved for a variance, the amendments had not yet become effective. But the amendments have since taken effect, and the Court will apply the amended Guidelines at sentencing. See U.S.S.G. § 1B1.11(a). Thus, the Court's tentative finding is that the motion should be denied as moot.
Kuta objects (filings 32 and 34) to the PSR's inclusion of a two-level enhancement for possession of a firearm. U.S.S.G. § 2D1.1(b)(1); PSR ¶¶ 29, 38. Kuta has pleaded guilty to conspiracy to distribute methamphetamine. See filings 21 and 25. His co-conspirator was Luis Velez, who was charged in a separate indictment. PSR at ¶ 16. Kuta and Velez lived together in a two-bedroom apartment in Lincoln, Nebraska. Kuta told police that he sold methamphetamine for Velez. PSR at ¶¶ 18-19. In December 2013, police executed a search warrant at the apartment. They found a small quantity of methamphetamine on Kuta's person (about 3 grams) and about $3, 500 in cash in his bedroom. In Velez's bedroom, police found a larger quantity of methamphetamine (about 66 grams) and another $2, 700 in cash. PSR at ¶¶ 18-19.
The police also found a loaded handgun in Velez's bedroom. The weapon was hidden inside of a sock, which was in a pile of socks and other clothing on a shelf in Velez's closet, which were behind clothes hanging from a rod. Some or all of the methamphetamine found in Velez's bedroom was also found in the closet. Filing 40-5 at 1-2; PSR at ¶ 29. Although the PSR states that the closet was locked, the officer who searched Velez's bedroom averred that it was unlocked. Compare PSR at ¶ 29, with filing 40-5 at 1.
The probation officer found Kuta should receive a two-level enhancement for possession of a firearm in connection with a drugtrafficking crime, U.S.S.G. § 2D1.1(b)(1), but this finding was not based on the firearm found in Velez's closet. Instead, this finding was based on separate reports that Kuta possessed a firearm. An unnamed witness reported that he or she observed Kuta in possession of a firearm during drug deals, that Kuta usually carried a firearm at his waist or ankle, and that he or she had previously purchased ammunition for Kuta. Additionally, certain "[i]nvestigative reports also indicated that the defendant had threatened his roommate [Velez] with a firearm at some point prior to their arrests, over what was described as some sort of "dominance" issue.'" ...