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United States v. Rivera-Ramirez

United States District Court, D. Nebraska

September 15, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
JUAN ANTONIO RIVERA-RAMIREZ, Defendant.

          TENTATIVE FINDINGS

          John M. Gerrard, United States District Judge.

         The 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.

         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 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 arrest.

         In 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 934 n.2.

         Whether 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.

         3. 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 ...


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