United States District Court, D. Nebraska
M. Gerrard United States District Judge
Court has received the resentencing report in this case.
There are no motions for departure or variance. The defendant
has objected to the resentencing report. Filing 139.
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 has filed an objection (filing 139) to
the resentencing report, objecting to the report's
conclusion that the defendant's two convictions for
assault by a confined person are "crimes of
violence" for purposes of classifying the defendant as a
career offender. The Court's tentative conclusion is that
the defendant's objection lacks merit.
defendant has two separate convictions for assault by a
confined person, in violation of Neb. Rev. Stat. §
28-932. That statute, as relevant, makes it a felony
when an incarcerated person "intentionally, knowingly,
or recklessly causes bodily injury to another person."
§ 28-932(1). The defendant argues that convictions for
assault by a confined person pursuant to § 28-932
"cannot qualify as crimes of violence for the purpose of
the career offender enhancement" because the statute can
be violated by acting recklessly. Filing 139 at 2.
the relevant definition, a "crime of violence" is
any offense under federal or state law, punishable by a term
of imprisonment exceeding one year, that
(1) has as an element the use, attempted use, or threatened
use of physical force against the ...