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United States v. Chiniros-Rodriguez

United States District Court, D. Nebraska

December 16, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
JOSE REYNALDO CHINIROS-RODRIGUEZ, Defendant.

TENTATIVE FINDINGS

JOHN M. GERRARD, District Judge.

The Court has received the revised presentence investigation report and addendum in this case. The defendant has filed an objection (filing 99) to the presentence report and a motion for variance (filing 100).

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 objects to the presentence report on two grounds. First, he objects to the two-level enhancement for his role in the offense. Filing 101 at 1-2. Second, he objects to the two-level enhancement for use of a minor in the commission of the offense. Filing 101 at 1-2.

(a) First, the presentence report applies a two-level enhancement of the defendant's offense level for being an "organizer, leader, manager, or supervisor in any criminal activity." See U.S.S.G. § 3B1.1(c). To justify an enhancement under this section, the government must prove that the defendant managed or supervised at least one other participant in the criminal enterprise. United States v. Hull, 646 F.3d 583, 587 (8th Cir. 2011); see United States v. Gamboa, 701 F.3d 265, 267 (8th Cir. 2012). But this enhancement is construed broadly. See Gamboa, 701 F.3d at 267. It may apply even if the management activity was limited to a single transaction, or the defendant only supervised one other individual. See, United States v. Alexander, 714 F.3d 1085, 1091 (8th Cir. 2013); Gamboa, 701 F.3d at 267; Hull, 646 F.3d at 587. The Court must consider, among other things, such factors as the exercise of decision-making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others. United States v. Henley, 766 F.3d 893, 916 (8th Cir. 2014); Alexander, 714 F.3d at 1091; see also Gamboa, 701 F.3d at 267 (citing § 3B1.1, cmt. n.4).
The defendant claims that he did not play a management role in the criminal activity, because he acted at the direction of his nephew, Benjamin Hernandez. 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). Mindful of the principles set forth above, the Court will dispose of this objection based upon the evidence presented at sentencing.
(b) Second, the defendant objects to the two-level enhancement for use or attempted use of "a person less than eighteen years of age to commit the offense or assist in avoiding detection of, or apprehension for, the offense." See U.S.S.G. § 3B1.4. The defendant concedes that his codefendant, Eldin Hernandez, was a minor during at least some of the criminal activity in question. But the defendant objects to the enhancement "so far as it only applies if he receives an aggravating role adjustment." Filing 101 at 1. "In other words, " the defendant contends, if his ...

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