United States District Court, D. Nebraska
JOHN M. GERRARD, UNITED STATES DISTRICT JUDGE.
The Court has received the revised presentence investigation report (PSR) in this case. The defendant has objected to the PSR (filing 438) and moved for a variance (filing 439). The government has also objected to the PSR. Filing 436.
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 has objected to the PSR (filing 438) and moved for a variance (filing 439). The government has also objected to the PSR. Filing 436.
The defendant objects to the probation officer's drug-quantity calculation and the underlying factual basis in the PSR. See filing 438 at ¶¶ 1, 3, 5. It is the government's burden to prove drug quantity by a preponderance of the evidence. United States v. Young, 689 F.3d 941, 945 (8th Cir. 2012). And it is well settled that "[t]he PSR is not evidence. If the defendant objects to any of the factual allegations contained therein on an issue on which the government has the burden of proof . . . the government must present evidence at the sentencing hearing to prove the existence of the disputed facts." United States v. Mann, 701 F.3d 274, 310 (8th Cir. 2012). The government has stated that it is prepared to present evidence as to the quantity of drugs attributable to the defendant. The Court will resolve this objection at sentencing.
In a related vein, the defendant objects to the probation officer's decision to calculate his base offense level using the weight of the actual methamphetamine involved in this case, as opposed to the weight of the mixture. Filing 438 at ¶ 50. The defendant asserts that this is improper because he was charged in the second superseding indictment (filing 326) with conspiracy to distribute a mixture or substance containing methamphetamine, as opposed to actual methamphetamine. However, the Guidelines state that in a case involving methamphetamine, the offense level should be determined based on the weight of either the entire mixture or the amount of pure methamphetamine, whichever results in a higher offense level. See USSG § 2D1.1(c) * Notes to Drug Quantity Table, ¶ B; see also United States v. Fairchild, 189 F.3d 769, 778 (8th Cir. 1999). And the fact that actual methamphetamine was not charged in the operative indictment does not run afoul of Apprendi v. New Jersey, 530 U.S. 466 (2000). See United States v. Serrano-Lopez, 366 F.3d 628, 637–38 (8th Cir. 2004).
The defendant next objects to the three-level enhancement for acting in a managerial or supervisory role, pursuant to U.S.S.G. § 3B1.1(b) and the two-level enhancement for maintaining a premises for the manufacture or distribution of drugs, pursuant to U.S.S.G. § 2D1.1(b)(12). See PSR at ¶¶ 51, 53. As with the drug-quantity objection, the defendant objects generally to the factual basis for these enhancements. Again, the government has stated that it is ...