United States District Court, D. Nebraska
M. Gerrard United States District Judge
Court has received the revised presentence investigation
report in this case. The defendant objects to the presentence
report (filing 50) and has filed a motion for downward
departure (filing 52).
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:
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
resolve all factual disputes relevant to sentencing by the
greater weight of the evidence and without the aid of a jury;
impose upon the United States the burden of proof on all
impose upon the defendant the burden of proof on all
depart from the advisory Guidelines, if appropriate, using
pre-Booker departure theory; and
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.
defendant has moved for a downward departure pursuant to
U.S.S.G. § 5H1.3 based on mental and emotional
conditions. Filing 52. A defendant's mental and emotional
condition may be relevant in determining whether a departure
from the guidelines range is warranted. United States v.
Farmer, 647 F.3d 1175, 1179 n.3 (8th Cir. 2011). The
defendant bears the burden of proving the appropriateness of
a downward departure. United States v. Cantu, 12
F.3d 1506, 1511 (9th Cir. 1993). The Court will resolve this
motion at sentencing.
defendant objects to the presentence report, arguing that the
two-level enhancement to the offense conduct required by
U.S.S.G. § 2D1.1(b)(1) should not be applied to his
case. Filing 50. Specifically, he argues that there is no
evidence to connect the weapon at issue (which he
characterizes as a "toy gun") with any drug crime
§ 2D1.1(b)(1), a defendant's offense level increases
by two levels "[i]f a dangerous weapon (including a
firearm) was possessed." A weapon is
"dangerous" for purposes of the enhancement if it
is "an object that is not an instrument capable of
inflicting death or serious bodily injury but . . . closely
resembles such an instrument." See § 1B1.1
cmt. n.1(D). The increase applies "if the weapon was
present, unless it is clearly improbable that the weapon was
connected with the offense." § 2D1.1(b)(1), cmt.
the defendant objects, it is the government's burden to
prove the applicability of an enhancement by a preponderance
of the evidence. See,United States v.
Mustafa, 695 F.3d 860, 862 (8th Cir. 2012); United
States v. Twiggs, 678 F.3d 671, 674 (8th Cir. ...