United States District Court, D. Nebraska
M. Gerrard, United States District Judge.
Court has received the revised/modified presentence
investigation report in this case. There are no motions for
departure or variance. The defendant has objected to the
presentence investigation report. Filing 48.
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 objects to the presentence investigation
report, arguing that the enhancement to his base offense
under U.S.S.G. § 2B1.1(b)(11)(A)(ii) does not apply.
That provision provides a two-level enhancement in the
offense level (or an increase to 12 if the result is less
than 12) if the offense involved the "possession or
use" of an "authentication feature" of an
identification document. The presentence report recommends
enhancing the offense level under § 2B1.1(b)(11)(A)(ii)
because the defendant, in seeking employment, used a Social
Security card and driver's license that were not issued
to him. The presentence report also notes that the defendant
was in possession of several blank I-94 forms, foreign
passports, and Social Security cards at the time of his
United States v. Rodriguez-Cisneros, 916 F.Supp.2d
932, 933-36 (D. Neb. 2013), this Court found that a Social
Security number, standing alone, is not an
"authentication feature" within the meaning of the
relevant statutory and Guidelines provisions. In reaching
this decision, the Court reasoned that a series of numbers,
while included in the definition of "authentication
feature, " is not "used by the issuing authority .
. . to determine if the document is counterfeit, altered, or
otherwise falsified[.]" Id. at 934. However,
the Court acknowledged that some Social Security cards
contain advanced features that may bring the offense within
the purview of § 2B1.1(b)(11)(A)(ii). Id. at
the documents at issue in this case contain such features is
a factual matter that the government must prove by a
preponderance of the evidence. United States v.
Peroceski, 520 F.3d 886, 889 (8th Cir. 2008). Because
the defendant's objection pertains 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 Cir. 2004).
Accordingly, the Court will resolve the defendant's
objections based upon the evidence presented at sentencing.
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 ...