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United States v. Love

United States District Court, D. Nebraska

July 11, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
ZACHARY JOSEPH LOVE, Defendant.

          MEMORANDUM AND ORDER

          John M. Gerrard United States District Judge

         This matter is before the Court on the defendant's objection (filing 99) to the Court's tentative findings, in which the defendant reasserts objections to the presentence report that were not presented to the Court in an objection or motion filed in response to the revised presentence report. The Court will, nonetheless, sustain the defendant's objection and resolve these issues at sentencing, as set forth below.

         Drug Quantity

         The defendant contends that he "should be held accountable for a total drug quantity of less than 500 grams of methamphetamine and closer to 200 grams of methamphetamine." If the defendant objects to any of the factual allegations contained in the presentence report on an issue on which the government has the burden of proof, such as the base offense level and any enhancing factors, the government must present evidence at the sentencing hearing to prove the existence of the disputed facts. United States v. Poor Bear, 359 F.3d 1038, 1041 (8th Cir. 2004). The Court will resolve the defendant's objection to drug quantity based on the evidence at sentencing.

         Gun Enhancement

         The defendant objects to the evidence used, in the presentence report, to establish the two-level enhancement for possessing of a dangerous weapon. See U.S.S.G. § 2D 1.1(b)(1). The burden is on the government to prove the factual basis for a sentencing enhancement by a preponderance of the evidence. United States v. Peroceski, 520 F.3d 886, 889 (8th Cir. 2008). Accordingly, the Court will resolve this issue on the evidence at sentencing.

         Career Offender Enhancement

         The defendant objects to the finding that the defendant qualifies for the career offender enhancement of U.S.S.G. § 4B1.1. The presentence report finds that the defendant is a career offender based on two prior convictions: a 2004 federal conviction for conspiracy to distribute and possession with intent to distribute methamphetamine, and a 2002 Nebraska conviction for terroristic threats, in violation of Neb. Rev. Stat. § 28-311.01. The terrorist threats conviction is problematic.

         The presentence report concludes that terroristic threats is a "crime of violence, " within the meaning of § 4B 1.1(a). But as relevant, a "crime of violence" is a crime that

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

U.S.S.G. § 4B1.2. This Court has previously held that the crime of Nebraska terroristic threats does not necessarily require that the defendant have threatened the use of physical force against the person of another. United States v. Mateo-Francisco, No. 4:13-CR-3041 (D. Neb. filed Aug. 29, 2013).[1]Terroristic threats is obviously not burglary of a dwelling, arson, or extortion, nor does it necessarily involve use of explosives. And the remaining language-"conduct that presents a serious potential risk of physical injury to another"-has (albeit in a different context) been found unconstitutionally vague. Johnson v. United States, 135 S.Ct. 2551 (2015).

         The Court's tentative finding, therefore, is that a conviction for Nebraska terroristic threats is not a "crime of violence" for purposes of § 4Bl.l(a). The parties are, however, notified that the Court will, in weighing this offense and the defendant's criminal history, consider whether an upward variance is warranted under § 3553(a) because the Guidelines calculation may not adequately reflect the seriousness of the defendant's conduct. See, United States v. Overbey,696 F.3d 702, 705-06 (8th Cir. 2012); United States v. Washington,515 F.3d 861, 867-68 (8th ...


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