United States District Court, D. Nebraska
M. Gerrard United States District Judge.
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
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 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.
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.
"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.
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, ...