United States District Court, D. Nebraska
M. Gerrard United States District Judge
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.
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
(c) impose upon the United States the burden of proof on all
(d) impose upon the defendant the burden of proof on all
(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.
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.
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).
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
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 ...