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United States v. Martinez

United States District Court, D. Nebraska

May 26, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
FERNANDO MARTINEZ, Defendant.

          MEMORANDUM AND ORDER ON (1) TO THE RESIDUAL CLAUSE OF THE SENTENCING GUIDELINES TO CASES THAT WERE NOT FINAL AND (2) SENTENCING SCHEDULE FOLLOWING REVERSAL AND REMAND

          Richard G. Kopf Senior United States District Judge

         Pursuant to a direct appeal, my sentence was reversed and this case remanded to me for resentencing for consideration of Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551, 2557 (2015) and otherwise. United States v. Martinez, No. 15-1004, 2016 WL 1743014 (8th Cir., May 3, 2016). The mandate has now been issued. As a result, I conferred with counsel over the phone. I now make a ruling necessary to the proper progression of this case. After that, I issue a progression order.

         First, it necessary to know whether the Johnson case applies to the residual clause found in U.S.S.G. § 4B1.2(a)(2) of the Guidelines for a case like this one that was not final at the time Johnson was decided. Since the Guidelines are the “starting point, ” and the language of the residual clause in the Guidelines is a very important part of that starting point, and since in a statute using the identical residual clause language the Supreme Court found the words to be too vague, I find and conclude that the residual clause contained within the Guidelines is unconstitutional as it is void for vagueness. I could write pages and pages on this subject, but having made my point on the centrality of the Guidelines and the need for clarity, I need write no more.[1]

         Second, having made the foregoing decision, I am now able to issue a progression order for sentencing and a revised presentence report. Therefore, IT IS ORDERED that the residual clause of U.S.S.G. § 4B1.2(a)(2) is found to be unconstitutionally vague for cases that were not final at the time the Johnson decision was rendered.

         IT IS FURTHER ORDERED that the following schedule and related directions for preparation of a revised presentence report shall be followed:

         1. A. The probation officer shall not apply the residual clause of U.S.S.G. § 4B1.2(a)(2); B. June 3, 2016: Counsel's respective versions of the offense(s) to the probation office;

         2. June 24, 2016: Financial information, restitution proposal and any chemical dependency/mental health evaluation to the probation office by counsel;

         3. July 8, 2016: Revised presentence report to counsel by the probation office. Defense counsel will insure that (a) the defendant has had an opportunity to read the initial PSR, or, if the defendant is not fluent in English, that an interpreter has read it to the defendant, and (b) the defendant has had an opportunity to voice any objections to defense counsel, before defense counsel submits objections to the initial PSR. The probation officer shall take care to include within the revised presentence report information regarding the institutional adjustment of the offender;

         4. July 18, 2016: Objections by counsel to the revised presentence report;

         5. July 28, 2016: Probation office's submission to the judge and counsel of revised presentence report with changes, if any, responsive to counsels’ objections, and, if needed, an addendum explaining the probation officer’s position regarding any objections to the presentence report previously submitted by counsel;

         6. August 4, 2016:

(a) Any proposals to the probation office for community service, community confinement, intermittent confinement or home detention;
(b) Motions to the court:
(1) for departure under the guidelines (including, but not limited to, motions by ...

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