United States District Court, D. Nebraska
MEMORANDUM AND ORDER
M. Gerrard United States District Judge
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
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.
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.
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
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
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).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).
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