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United States v. Wood

United States District Court, D. Nebraska

August 31, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
MONTEL L. WOOD, III, Defendant.

          TENTATIVE FINDINGS

          John M. Gerrard United States District Judge.

         The Court has received the presentence investigation report in this case. There are no motions for departure or variance. The defendant has filed an objection (filing 31) 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 has filed an objection (filing 31) to the presentence report.

         The issue raised by the objection is whether the defendant's 2014 conviction for terroristic threats should be considered a "crime of violence" for purposes of applying a base offense level of 20 under U.S.S.G. § 2K2.1(a)(4)(A). A base offense level of 20 under § 2K2.1 is appropriate when the defendant "committed any part of the instant offense subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense." The term "crime of violence" is defined at § 4B1.2(a) as "any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that . . . has as an element the use, attempted use, or threatened use of physical force against the person of another . . . .".

         In United States v. Mateo-Francisco, No. 4:13-CR-3041 (D. Neb. Aug. 29, 2013), this Court found that a conviction under Neb. Rev. Stat. § 28-311.01 for terroristic threats is not a "crime of violence" for purposes of applying a 16-level enhancement under § 2L1.2. In reaching this conclusion, the Court noted that § 28-311.01 does not have as an element "the use, attempted use, or threatened use of physical force against another person, " and therefore does not fit within the definition of "crime of violence" as provided under the Guidelines.

         The defendant contends that the reasoning set forth in Mateo-Francisco applies for purposes of calculating his base offense level. Filing 31. He claims, in other words, that because his prior conviction for terroristic threats is not a "crime of ...


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