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United States v. Cornejo-Lopez

United States District Court, D. Nebraska

November 17, 2015


          For USA, Plaintiff: Thomas J. Kangior, U.S. ATTORNEY'S OFFICE-OMAHA, Omaha, NE.

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         Joseph F. Bataillon, Senior United States District Judge.

         This Sentencing Memorandum supplements findings made on the record at defendant's sentencing hearing on November 5, 2015. For the reasons set forth below, the court finds the defendant's objection to the presentence investigation report (Filing No. 28) should be sustained.

         I. Background

         Defendant was charged in a two-count indictment with being a felon in possession of a firearm in violation of 18 U.S.C. § § 922(g)(1) and 924(a)(2) and possession with intent to distribute 50 grams or more of actual methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1). Filing No. 1, Indictment. Pursuant to a plea agreement, the defendant entered a plea of guilty to the drug charge. Filing No. 26, Plea Agreement. That offense carries a mandatory minimum sentence of five years and a maximum of forty years. See 21 U.S.C. § 841 (b)(1). The parties agreed that the defendant should be held responsible for at least 50 grams but not more than 150 grams of methamphetamine actual. Filing No. 26, Plea Agreement at 3. The parties also agreed that the defendant possessed a firearm or other dangerous weapon in connection with the offense of conviction and that such conduct qualifies him for a two-level upward adjustment under U.S.S.G. § 2D1.1(b)(1). Id.

         The court accepted the defendant's plea and directed the United States Office of Probation (hereinafter, " the Probation Office" ) to prepare a Presentence Investigation Report (hereinafter, " PSR" ) that calculated the defendant's sentence under the United States Sentencing Guidelines (" the Guidelines" ). Filing No. 23, text minute entry. In the PSR, the Probation Office identified U.S.S.G. § 2D1.1 as the applicable Guidelines base offense level provision and determined that the defendant's base offense level was 30, based on a quantity determination of approximately 118.6 grams of methamphetamine (actual) under § 2D1.1(a)(5)(c)(5). Filing No. 37, PSR (sealed) at 5, 8. It determined that a two level enhancement for possession of a firearm under U.S.S.G. 2D1.1(b)(1) was warranted. Id. at 8. It further determined that the defendant qualified as a career offender

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under U.S.S.G. 4B1.1(b)(2) because (1) he was at least 18 years old at the time of the instant offense of conviction; (2) the instant offense of conviction is a felony that is a controlled substance offense; and (3) he has at least two prior felony convictions of either a crime of violence or a controlled substance offense, making his base offense level 34. Id. The predicate felonies were his convictions for drug distribution and for attempted burglary. Id. at 14. The Probation Office then subtracted three levels for the defendant's acceptance of responsibility under U.S.S.G. § 3E1.1 (a) & (b), resulting in a total offense level of 31. Id. at 8-9.

         The probation office first determined the defendant's criminal history category was V, based on the assessment of 12 criminal history points for convictions for being a felon in possession of a firearm, drug distribution, possession of marijuana less than an ounce, attempted burglary, witness tampering and committing the offense while under a criminal justice sentence. Id. at 9-13. However, because the defendant qualified as a career offender, his criminal history category became VI under U.S.S.G. § 4B1.1(b). Id. at 15. At criminal history category VI and offense level 31, the defendant's sentencing range under the Guidelines, as calculated by the Probation Office, is 188 to 235 months. Id. at 21.

         The defendant is thirty-two years old. Id. at 17. He is divorced and has four minor children. Id. at 18. He is currently in a relationship with a woman who has prior convictions for misdemeanor drug possession. Id. He dropped out of high school in tenth grade a, but obtained his GED while in custody. Id. at 19. He has been variously employed as a sanitation worker, flooring installer, garage attendant, meat-packer, and mover. Id. at 20-21.

         He has a history of marijuana and cocaine use. Id. He completed a substance abuse evaluation in 2007 and received diagnoses of alcohol and cannabis dependence with a recommendation for intensive outpatient treatment. Id. He acknowledges that he is in need of substance abuse treatment. Id.

         The defendant objected to the application of the career offender guideline. Filing No. 28, Objections to the Presentence Report. He argues that a conviction for attempted burglary does not qualify as predicate offense as a crime of violence under U.S.S.G. § 4B1.1 in light of the Supreme Court's decision in Johnson v. United States, __ U.S. __, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), which declared the residual clause of the Armed Career Criminal Act (" ACCA" ), 18 U.S.C. § 924(e), void for vagueness. Id. at 1-2. In response, the government argues that under Eighth Circuit precedent, attempted burglary qualifies as a crime of violence. Filing No. 34, Government's Response at 2-3. Although it concedes that Johnson is applicable to the corollary Guidelines residual clause, it argues that the residual clause is not applicable and that attempted burglary qualifies as a crime of violence as an enumerated offense, regardless of the residuary clause. Id. at 4-5.

         II. Law

         Although a sentencing court must give respectful consideration to the Sentencing Guidelines, the Supreme Court's decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), permits the court to tailor the sentence in light of other statutory concerns as well. Pepper v. United States, 562 U.S. 476, 131 S.Ct. 1229, 1241, 179 L.Ed.2d 196 (2011). The district court follows the sentencing framework set forth by the Supreme Court in Gall v. United States, 552 U.S. 38, 49-51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). See United States v. Washington, 515 F.3d 861, 865-66 (8th Cir. 2008)

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 (" We urge district courts to continue to engage in the three-step process of first ascertaining the applicable Guidelines range, then considering any permissible departures within the Guidelines' structure, and finally, deciding whether a non-Guidelines sentence would be more appropriate under the circumstances pursuant to § 3553(a)." ). The first step is to calculate the defendant's advisory Guidelines sentencing range, which provides " the starting point and the initial benchmark" for any sentence. Gall, 552 U.S. at 49. Next, the court determines whether any traditional Guidelines departures are warranted. Washington, 515 F.3d at 865. Finally, the court considers whether to vary from the advisory Guidelines range based on the factors set forth in 18 U.S.C. § 3553(a). Gall, 552 U.S. at 49-50; United States v. VandeBrake, 679 F.3d 1030, 1039 n. 7 (8th Cir. 2012).

         The court is not to presume that the Guidelines range is reasonable, but is required to make an individualized assessment based on the facts of each case under 18 U.S.C. § 3553(a). Gall, 552 U.S. at 50. If the court determines that a variance from the Guidelines range is appropriate, it must consider the extent of the deviation and ensure that there is a correspondingly compelling justification. Id. Ultimately, the court must impose a sentence " in line with ยง 3553(a)'s overarching instruction to 'impose a sentence sufficient, but not greater than necessary,' to ...

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