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United States v. Graef

United States District Court, D. Nebraska

August 23, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
MICHAEL GRAEF, Defendant.

          TENTATIVE FINDINGS

          John M. Gerrard United States District Judge

         TENTATIVE FINDINGS

         The Court has received the revised presentence investigation report in this case. There are no motions for departure or variance. The defendant has objected to the application of two sentencing enhancements. Filing 46.

         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 objects to the presentence investigation report, arguing that the four-level enhancements to the offense conduct required by U.S.S.G. § 2K2.1(b)(4)(B) and (6)(B) do not apply. Filing 46. Under § 2K2.1(b)(4)(B), a four-level enhancement applies if the defendant possessed a firearm with "an altered or obliterated serial number." A separate four-level enhancement applies under § 2K2.1(b)(6)(B) when the defendant uses or possesses a firearm in connection with another felony offense. In the case of a drug trafficking offense in which a firearm is found in close proximity to drugs, drug-manufacturing materials, or drug paraphernalia, application of subsection (b)(6)(B) is warranted because the presence of the firearm has the potential of facilitating another felony offense. § 2K2.1(b)(6)(B), cmt. n.14; see United States v. Sneed, 742 F.3d 341, 343-44 (8th Cir. 2014).[1]

         The defendant contends that he has not received information indicating that the serial number on the short-barreled 12-gauge shotgun was removed. He also argues that he did not possess the shotgun in connection with his sale of methamphetamine.

         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). Because the defendant objects to factual allegations on which the government has the burden of proof, 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 ...


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