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United States v. Velez

United States District Court, D. Nebraska

February 10, 2015

LUIS A. VELEZ, Defendant.


JOHN M. GERRARD, District Judge.

The Court has received the revised presentence investigation report in this case. The defendant has objected to the presentence report, and moves for a downward departure under the United States Sentencing Guidelines and a downward variance from the Guidelines range. See filing 36.


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, asserting that he should receive a role adjustment pursuant to U.S.S.G. § 3B1.2. Filing 36 at 2. The defendant argues that he "should be credited with a downward role adjustment accordingly for minimal participant for at least 2 levels, if not 4 levels." Filing 37 at 7.

Under § 3B1.2, a defendant's offense level may be reduced by 2 levels if he was only a minor participant in any criminal activity, and by 4 levels if he was a minimal participant. The Court must determine the relevant conduct, and compare the defendant's actions against those of the other participants, evaluating his culpability in relation to the elements of the offense. United States v. Pinkin, 675 F.3d 1088, 1090 (8th Cir. 2012); United States v. Goodman, 509 F.3d 872, 875 (8th Cir. 2007). To qualify for a minor participant adjustment under § 3B1.2(b), the defendant must be "less culpable than most other participants." Id., cmt. n.5. To qualify for a minimal participant adjustment under § 3B1.2(a), 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 a minimal participant." Id. Minimal participants are those with "insignificant" involvement in the criminal activity. Goodman, 509 F.3d at 875.
The burden of establishing a role adjustment as a minor or minimal participant rests with the defendant. Id.; see Pinkin, 675 F.3d at 1090. The Court will resolve this issue at sentencing.

3. The defendant moves for downward departure on two grounds. Filing 36 at 2-3. First, the defendant seeks a downward departure based on U.S.S.G. § 5K2.12, which permits the Court to depart downward if the defendant committed the offense because of serious coercion, blackmail, or duress, albeit under circumstances not amounting to a complete defense. Filing 37 at 8-9. Coercion will be sufficiently serious to warrant departure only when it involves a threat of physical injury, substantial damage to property, or similar injury resulting from the unlawful action of a third party or from a natural emergency, and absent these specific serious threats, coercion is a discouraged basis for departure and must be present in some unusual or exceptional way to warrant departure from the Guidelines range. United States v. King, 280 F.3d 886, 890 (8th Cir. 2002). The extent of the decrease will depend on the reasonableness of the defendant's actions; on the proportionality of the defendant's actions to the seriousness of coercion, blackmail, or duress involved; and on the extent to which the conduct would have been less harmful under the circumstances as the defendant believed them to be. § 5K2.12. And it is the defendant's burden to show that the coercion caused him to commit the offense. United ...

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