Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Windham

United States District Court, D. Nebraska

August 17, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
JIMMIE D. WINDHAM, III, Defendant.

          TENTATIVE FINDINGS

          John M. Gerrard United States District Judge.

         The Court has received the presentence investigation report and addendum in this case. The defendant has filed an objection (filing 56) to the presentence report, a motion for downward departure (filing 57), and a motion for variance (filing 58).

         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. The defendant has objected to the presentence report. Filing 56. The defendant's objection relates to his criminal history calculation: specifically, he objects to the two criminal history points added for a juvenile sentence. See filing 56. 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).

         The sentences at issue resulted from the defendant's arrest in 2009, at age 14, for disorderly conduct and possession of marijuana. The sequence of release and detention that followed is complicated. As relevant, the defendant's initial probationary sentence was revoked, and he was eventually placed at the Canyon State Academy in Arizona on July 11, 2011. That apparently did not work out, for reasons that are not clear from the record, and a warrant was issued on April 26, 2012. On December 10, the defendant was committed to the Youth Rehabilitation and Treatment Center, which the defendant represents was the Nebraska state Youth Rehabilitation and Treatment Center in Kearney (YRTC-Kearney). See filing 56. He turned 18 in July 2013, and on September 9, he was sentenced to 60 days' imprisonment in Douglas County Court for providing false information. He was "unsuccessfully discharged" from his juvenile placement on October 23.

         U.S.S.G. § 4A1.1(b) requires two criminal history points to be assessed for "each prior sentence of imprisonment of at least sixty days." Juvenile sentences of at least sixty days count "if the defendant was released from such confinement within five years of his commencement of the instant offense[, ]" U.S.S.G. § 4A1.2(d)(2)(A), which includes both the Canyon State and Kearney sentences.

         The defendant's argument is that neither sentence was a "sentence of imprisonment" within the meaning of § 4A1.1(b). He contends that Canyon State "is basically a campus composed of a series of group homes in which children reside while they go to school and receive treatment and services" and that YRTC-Kearney is "a facility where children, who have not responded to prior treatment, therapy and services, are sent by a juvenile court to continue to work on their issues and continue to receive treatment, therapy, and services." Filing 56 at 1-2. Such placement, the defendant argues, is "not intended to be imprisonment as described in U.S.S.G. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.