Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Monteon

United States District Court, D. Nebraska

March 7, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
MIGUEL MONTEON, Defendant.

          TENTATIVE FINDINGS

          John M. Gerrard United States District Judge

         The Court has received the revised presentence investigation report and addendum in this case. There are no motions for departure or variance. The defendant has objected (filing 49) 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 49) to the presentence report on two grounds: first, to the inclusion in the presentence report of information relating to the defendant's gang affiliation, and second, to calculation of the base offense level pursuant to U.S.S.G. § 2K2.1(a)(4)(B). The Court's tentative finding is that the defendant's objection-with one limited exception-lacks merit.

         First, the defendant objects to certain references in the presentence report to his gang membership: the defendant told his probation officer that he was connected to a gang, and police reports also suggested that "the defendant advised" he was part of a gang. See filing 49 at 1-2. The defendant complains that the statements "are supplied without any further context with which to evaluate the significance or weight of the statements made, the chronological timing or reliability or state of mind of the Defendant in allegedly making said statements, nor what the ultimate relevance of these statements has to the instant case." Filing 49 at 1.

         But that is no basis to exclude them from the presentence report, particularly given that they do not appear to have affected the guidelines calculation. If the defendant believes that further context is required to explain the statements, or to establish their timing or the defendant's state of mind, then he is free to provide such evidence at sentencing; similarly, the defendant is free to argue at sentencing that the statements are not relevant to the § 3553(a) factors, and the Court will consider that argument. But the Court finds no merit to the defendant's contention that the statements are improperly included in the presentence report.

         Second, the presentence report found the base offense level to be 20, based on the finding that the offense involved a semiautomatic firearm that is capable of accepting a large capacity magazine. See § 2K2.1(a)(4)(B). Such a weapon, for guideline purposes, includes "a semiautomatic firearm that has the ability to fire many rounds without reloading because at the time of the offense . . . a magazine or similar device that could accept more than 15 rounds of ammunition was in close proximity to the firearm." § 2K2.1 cmt. n.2. And in this ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.