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United States v. Peterson

United States District Court, D. Nebraska

October 13, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
THOMAS PETERSON, Defendant.

          TENTATIVE FINDINGS

          Richard G. Kopf Senior United States District Judge.

         I am in receipt of the revised presentence investigation report and addendum in this case. There are objections and motions filed by both parties.

         IT IS ORDERED that:

         (1) The undersigned will consult and follow or deviate from the Guidelines to the extent permitted and required by United States v. Booker, 543 U.S. 220(2005) and subsequent cases. In this regard, the undersigned gives notice that, unless otherwise ordered, he will (a) give the advisory Guidelines such weight as they deserve within the context of each individual case and will filter the Guidelines general advice through §3553(a)'s list of factors; (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 government the burden of proof on all Guideline-enhancements; (d) impose upon the defendant the burden of proof on all Guideline-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 for doing so. I no longer give the Guidelines “substantial weight.”

         (2) With respect to the pending objections and motions, I tentatively find and conclude as follows:

         A. Filing no. 77, the Defendant's Motion for Downward Departure/Variance, is denied. A prison sentence of nine years is not greater than necessary. If this case is outside the “heartland, ” it is because the conduct of the Defendant was both extraordinarily predatory and egregious. Incarceration is necessary as a specific deterrent, incarceration is necessary to protect the public against further crimes of the Defendant and, most particularly, incarceration is necessary to serve as a general deterrent to other probation officers who supervise especially vulnerable offenders.

         B. Filing no. 78, the Defendant's Objection to Presentence Investigation Report, is denied except to the extent that the Government's objections to the Presentence Report favor the Defendant and are sustained in the following paragraph.

         C. Filing no. 80, the Government's Objection to Presentence Investigation Report, is sustained and granted to the extent provided herein and is otherwise denied. That is:

18 U.S.C. § 2244 (abusive sexual contact) is the most analogous underlying offense applicable to the civil rights violations (18 U.S.C. § 242, U.S.S.G. § 2H.1 & comment 1) and such a determination invokes a different guideline than was used in the presentence report. Violations of 18 U.S.C. § 2244 are related to U.S.S.G. § 2A3.4., U.S.S.G., Appendix A, at p. 559. The use of a different base offense level results in different calculations than were used in the presentence report. Specifically, the following analysis supports the government's objections to paragraphs 90, 95, 96, 101, 102, 107, 113, 114, 115, 116, 117, 120 and 147.
Base offense level, U.S.S.G. § 2H1.1 & U.S.S.G. § 2A3.4(a)(3) 12 Victim was in the supervisory control of the defendant,

U.S.S.G. § 2A3.4(b)(3)[1]

2

Defendant was a public official, U.S.S.G. § 2H1.1(b)(1)(A)

6

Obstruction of Justice, U.S.S.G. § 3C1.1

2

Adjusted Offense level

22

Multiple count analysis, U.S.S.G. § 3D1.4

Group 1 (Count 1)

1

Groups 2-4 (Counts 2-4)

3

4

4

Total Offense Level:

26

         Total Offense Level: 26

The defendant is not entitled to a reduction for acceptance of responsibility. He was not simply challenging the applicability of the statute to his conduct. Through his counsel, or personally to the FBI agents, he disputed many of the events testified to by the victims and specifically denied any sexual activity with victims NT and DK. Further, he misrepresented the nature of the conduct he had engaged in with AK and KT.
In summary, the Total Offense level is 26 and, with a Criminal History Category of I, the Guideline range for imprisonment is 63-78 months. The supervised release range is one year for each of the four civil rights misdemeanor violations and up to 3 years on the count pertaining to lying to the FBI.

         D. Filing no. 81, the Government's Motion for Upward Departure/Variance, is tentatively granted for the reasons set forth in the Government's excellent brief (filing no. 82 at CM/ECF pp. 17-23). As the ...


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