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United States v. Salisbury
United States District Court, D. Nebraska
January 13, 2016
UNITED STATES OF AMERICA, Plaintiff,
WILLIAM E. SALISBURY, Defendant.
AMENDED TENTATIVE FINDINGS
John M. Gerrard United States District Judge
The Court has received the revised modified presentence investigation report in this case. The defendant objects to the presentence report (filing 248).
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 several grounds. Filing 248.
(a) The defendant objects to the government's description of the offense conduct and the probation officer's calculation of the amount of pseudoephedrine involved in the offense. Filing 248 at 1-3. The Court would-if necessary-resolve this objection based upon the evidence presented at trial and any additional evidence presented at sentencing. However, the Court need not resolve this issue now, nor is it likely to require resolution at sentencing-the defendant appears to agree that the base offense level is 19, even under the defendant's calculation of the amount of pseudoephedrine provided. Filing 248 at 2-4; see, U.S.S.G. §§ 2D1.11 and 2X4.1.
(b) The defendant contends that he is entitled to a two-point reduction for acceptance of responsibility. Filing 248 at 3; see U.S.S.G. § 3E1.1. A defendant has the burden to show that he is entitled to a reduction for acceptance of responsibility. United States v. Nguyen, 339 F.3d 688, 690 (8th Cir. 2003). The defendant contends that he should receive credit for accepting responsibility because, he asserts, he had previously offered to settle the case "in the same fashion" as the plea agreement eventually reached by the parties during trial. Filing 248 at 3.
An adjustment for acceptance of responsibility does not apply to a defendant who puts the government to its burden of proof by denying the essential factual elements, and only then admits guilt and expresses remorse. § 3E1.1 cmt. n.2. But even conviction at trial would not automatically prevent a defendant from receiving a reduction for acceptance of responsibility. United States v. Guerrero-Cortez, 110 F.3d 647, 656 (8th Cir. 1997). A defendant may demonstrate acceptance of responsibility even though he goes to trial and is convicted, which may occur when he asserts and preserves issues that did not relate to ...
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