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United States v. Martinez

United States District Court, D. Nebraska

July 26, 2016

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

          TENTATIVE FINDINGS

          John M. Gerrard United States District Judge

         The Court has received the revised presentence investigation report in this case. There are no motions for departure or variance. The defendant's sentencing statement (filing 39) objects to the presentence report.

         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. There are no motions that require resolution at sentencing. The defendant's sentencing statement (filing 39) objects to the presentence report: specifically, ¶¶ 58-61 of the defendant's criminal history are evidently based on docket entries because the probation office's "request for offense reports has not been returned[, ]" and the defendant objects that "docket entries alone are insufficient to assess [criminal history] points". Filing 39 at 1.

         The government has the initial burden of proving the fact of a defendant's prior conviction by a preponderance of the evidence, after which it is the defendant's burden to show his prior convictions were not constitutionally valid. United States v. Dodson, 817 F.3d 607, 610 (8th Cir. 2016); United States v. Stapleton, 316 F.3d 754, 756 (8th Cir. 2003); see United States v. Rodriguez, 711 F.3d 928, 940 (8th Cir. 2013). But an actual judgment of conviction is not required; rather, documentation must simply be accurate and reliable. Rodriguez, 711 F.3d at 940; see United States v. Stobaugh, 420 F.3d 796, 803 (8th Cir. 2005). And contrary to the defendant's suggestion, a docket sheet may provide sufficient evidence to show the fact of a defendant's prior conviction and the sentence imposed. See Rodriguez, 711 F.3d at 940; see also, United States v. Jaquez-Torres, 432 F.App'x 128, 129-30 (3d Cir. 2011); United States v. McKenzie, 539 F.3d 15, 19 (1st Cir. 2008); United States v. Ayuso, 272 F.App'x 833, 836 (11th Cir. 2008); United States v. Cousin, 219 F.App'x 190, 194 (3d Cir. 2007); United States v. Simpson, 94 F.3d 1373, 1381 (10th Cir. 1996); cf., United States v. Brown, 206 F.App'x 640, 642 (8th Cir. 2006); Stobaugh, 420 F.3d at 803; United States v. Dickens, 879 F.2d 410, 411-12 (8th Cir. 1989).

         The government is, of course, required to meet its burden of proof by laying appropriate foundation for the docket sheet and making it part of the record at sentencing. See United States v. Cochrane, 608 F.3d 382, 383-84 (8th Cir. 2010). Accordingly, the Court will resolve the defendant's objection on the evidence presented at sentencing.

         3. Except to the extent, if any, that the Court has sustained an objection, granted a motion, or reserved an issue for later resolution in the preceding paragraph, the parties are notified that the Court's tentative ...


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