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United States v. Adams

United States District Court, D. Nebraska

December 22, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
COLE JAMES ADAMS, Defendant.

          TENTATIVE FINDINGS

          John M. Gerrard United States District Judge.

         The Court has received the revised presentence investigation report in this case. There are no motions for departure or variance. The defendant has objected (filing 37) to the presentence report.

         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 objected (filing 37) to the presentence report, challenging the presentence report's conclusion that the defendant is a career offender pursuant to U.S.S.G. § 4B1.1. Specifically, the defendant contends that the two California predicate convictions relied upon by the presentence report are not felonies, and that his assault conviction is not a "crime of violence." See filing 38.

         First, the defendant was convicted of possessing marijuana for sale, in violation of Cal. Health & Safety Code § 11359. The defendant contends that "there is NO EVIDENCE that the crimes under which the Defendant was convicted . . . are felonies." Filing 38 at 6. And the defendant particularly contends that his marijuana offense might no longer be a felony under California law in the wake of that state's recent approval of a ballot initiative legalizing recreational marijuana. Filing 38 at 16-18.

         But a "felony" conviction for these purposes is a prior adult federal or state conviction "punishable by death or imprisonment for a term exceeding one year, regardless of whether such offense is specifically designated as a felony . . . ." U.S.S.G. § 4B1.2 cmt. n.1. The defendant's conviction-for which he was sentenced to 3 years' imprisonment- clearly met that definition. See, § 11359; Cal. Penal Code § 18. And whether a conviction is based on an offense that is a misdemeanor at the time of sentencing is only relevant when determining whether a downward departure is warranted because the guideline range substantially overrepresents the seriousness of the defendant's criminal history or the instant offense. See § 4B1.1 cmt. n.4. No argument for a departure has been made here.[1]

         Second, the defendant was convicted of assault with a deadly weapon other than a firearm, in violation of Cal. Penal Code § 245(a)(1). The defendant argues that the offense may or may not have been a "felony" as defined above. Filing 38 at 9. And he contends that the statute, as it was in force at the time of the conviction, ...


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