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United States v. Williams

United States District Court, D. Nebraska

January 4, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JETWAN G. WILLIAMS, Defendant.

          TENTATIVE FINDINGS

          JOHN M. GERRARD UNITED STATES DISTRICT JUDGE.

         The Court has received the revised presentence investigation report and addendum in this case. The defendant has objected to the presentence report (filing 42) and moved for a downward variance (filing 43).

         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. The defendant has objected (filing 42) to the presentence report on three grounds. First, the defendant objects to the base offense level of 20, which was based on U.S.S.G. § 2K2.1(a)(4)(B)(i)(I) and the probation officer's conclusion that one of the firearms involved in this case was capable of accepting a large capacity magazine: that is, that a magazine that could accept more than 15 rounds of ammunition was either attached to the firearm or in close proximity to it. See Id. cmt. n. 2. The Court notes that the parties agreed to a base offense level of 14 in the plea agreement. Filing 35 at 3. When the defendant objects, it is the government's burden to prove the base offense level. See, United States v. Piggie, 316 F.3d 789, 793 (8th Cir. 2003); United States v. Curruth, 439 F.App'x 560, 563 (8th Cir. 2011). Accordingly, the Court will resolve this issue on the evidence presented at sentencing.

         Second, the defendant objects to the assessment of two criminal history points based on a juvenile petition. The defendant contends that he was placed at Boys Town, which is not the equivalent of imprisonment for purposes of U.S.S.G. § 4A1.1(b). But as the presentence report points out, the defendant's placement at Boys Town did not work, and he was committed to the Youth Rehabilitation and Treatment Center in Kearney (YRTC-Kearney) for a period of more than 60 days, which is plainly "imprisonment" as the Eighth Circuit has interpreted it. See United States v. Allen, 64 F.3d 411, 412-13 (8th Cir. 1995); accord United States v. Stewart, 643 F.3d 259, 263-64 (8th Cir. 2011); see also, Neb. Rev. Stat. §§ 43-286; 43-410; 43-412; and 43-424.

         The addendum to the presentence report states that the defendant was committed to YRTC-Kearney on the basis of the allegations of misconduct contained in the juvenile petition. The defendant, on the other hand, argues that he was not sent to YRTC-Kearney on the basis of the juvenile petition, but pursuant to a detainer for running away from Boys Town. Filing 42 at 2. The Court will, therefore, resolve this issue on the evidence presented at sentencing. See United States v. Dodson, 817 F.3d 607, 610 (8th Cir. 2016) (government has initial burden of proving fact of prior conviction).

         Finally, the defendant objects to the assessment of two criminal history points for two Nebraska infractions for possession of marijuana. Filing 42 at 2. The defendant argues that "each offense is an infraction, and therefore he should not receive a point for the offenses" because "including infractions leads to a guideline calculation based on a criminal history category that is more than reasonably necessary for the purposes of sentencing according to the guidelines." Instead, he contends, such ...


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