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United States v. Anthony

United States District Court, D. Nebraska

November 7, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
DONALD G. ANTHONY, Defendant.

          TENTATIVE FINDINGS

          John M. Gerrard United States District Judge

         The 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.

         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 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.

         The 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.

         Under 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 ...

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