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United States v. Harris

United States District Court, D. Nebraska

March 17, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
MUSA J. HARRIS, Defendant.

          TENTATIVE FINDINGS

          JOHN M. GERRARD, UNITED STATES DISTRICT JUDGE

         The Court has received the revised presentence investigation report in this case. The defendant has objected to the presentence report (filing 115) and argues for a variation from the sentencing guidelines.

         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 filed an objection (filing 115) to the presentence report, on several grounds. First, he objects to the base offense level, based on his assertion that the witness statements upon which the drug quantity calculation is premised are not credible. Filing 115 at 1. The Court will resolve that issue on the evidence presented at sentencing, remembering that the government bears the burden to prove drug quantity by a preponderance of the evidence. United States v. Young, 689 F.3d 941, 945 (8th Cir. 2012).

         Next, the defendant contends that he is safety valve eligible. Filing 115 at 1. The presentence report indicates that the government is unaware of the defendant giving any statements to law enforcement to help him qualify for the safety valve. The Court will also resolve this matter at sentencing, but on this issue, the defendant has the burden to show affirmatively that he has satisfied each requirement for the safety value, including whether truthful information and evidence have been given to the government. United States v. Alvarado-Rivera, 412 F.3d 942, 947 (8th Cir. 2005).[1]

         Next, the defendant argues that he is eligible for a two-level minor participant adjustment pursuant to U.S.S.G. § 3B1.2(b). Filing 115 at 2. A minor participant adjustment applies to a defendant who plays a part in committing the offense that makes him substantially less culpable than the average participant, but whose role could not be described as minimal. United States v. Durham, 836 F.3d 903, 911 (8th Cir. 2016). The presentence report indicates that there is no available information to suggest that the defendant's conduct warrants a role adjustment.

         The Court will resolve this issue at sentencing, considering the degree to which the defendant understood the scope and structure of the criminal activity; the degree to which the defendant participated in planning or organizing the criminal activity; the degree to which the defendant exercised decision-making authority or influenced the exercise of decision-making authority; the nature and extent of the defendant's participation in the commission of the criminal activity, including the acts the defendant performed and the responsibility and discretion the defendant had in performing those acts; and the degree to which the defendant stood ...


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