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United States v. Santos
United States District Court, D. Nebraska
March 9, 2015
UNITED STATES OF AMERICA, Plaintiff,
FRANCISCO ALVARADO SANTOS, Defendant.
JOHN M. GERRARD, District Judge.
The Court has received the revised presentence investigation report (PSR) in this case. The defendant has filed an objection (filing 53).
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. Santos objects to the PSR on several grounds. First, he objects to the two-level enhancement for possession of a dangerous weapon in connection with a drug offense. Second, Santos objects to the four-level aggravating role enhancement. Filing 53 at 2-3. He also objects to various factual assertions in the PSR, but these generally have no impact on his advisory Guidelines range.
(A) The Dangerous Weapon Enhancement
The PSR applies a two-level enhancement to Santos' offense level for possession of a dangerous weapon in the commission of the offense. See U.S.S.G. § 2D1.1(b)(1). For this enhancement to apply, the government must prove by a preponderance of the evidence that (1) the weapon was possessed; and (2) it was not clearly improbable that the weapon was connected to the drug offense. United States v. Garcia, 703 F.3d 471, 476 (8th Cir. 2013). Actual or constructive possession will suffice. United States v. Dunn, 723 F.3d 919, 929 (8th Cir. 2013). "If possession is established, the enhancement applies if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.'" Id. (quoting U.S.S.G. § 2D1.1(b)(1), cmt. n.11(A)). The government proves a connection between the firearm and the offense by showing the existence of a temporal and spatial relation between the weapon, the drug trafficking activity, and the defendant. United States v. Young, 689 F.3d 941, 946 (8th Cir. 2012). Although the mere presence of a firearm is not enough, the government need not show that the defendant used or even touched the firearm. Garcia, 703 F.3d at 476.
The PSR applies the enhancement based upon three separate incidents. The first incident involved Mike Clauff and occurred "sometime between the summer of 2010 and September 2011." PSR at ¶ 60(a). Clauff was involved in buying methamphetamine from Santos for resale, and has pleaded guilty and been sentenced for conspiracy to distribute methamphetamine. See case no. 4:11-cr-3124. Clauff claims that during this incident, he was obtaining methamphetamine from "Jose, ' ...
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