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United States v. Benson

United States District Court, D. Nebraska

April 24, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
LEE BENSON, Defendant.

          TENTATIVE FINDINGS

          JOHN M. GERRARD UNITED STATES DISTRICT JUDGE.

         The Court has received the revised presentence investigation report and addendum in this case. Both the government (filing 102) and the defendant (filing 103) have objected to the presentence report. The defendant has also filed a motion for downward departure (filing 105) and a "Motion for Deviation" (filing 107) that the Court understands to be a motion for downward variance.[1]

         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. Both parties have objected to the presentence report. The government objects to the presentence report's conclusion that the defendant is accountable for a total of at least 25 grams of methamphetamine (actual). Filing 102. Instead, the government takes the position that "a mixture of methamphetamine [is] the most readily provable drug quantity."[2] Filing 102. The defendant argues that the drug quantity attributable to the defendant is "at least 20 grams but not more than 30 grams" of a methamphetamine mixture. Filing 103 at 1. The Court will resolve this issue based on the evidence presented at sentencing, and the government's burden to prove drug quantity by a preponderance of the evidence. United States v. Young, 689 F.3d 941, 945 (8th Cir. 2012).

         The defendant also objects to the presentence report's lack of a role adjustment, arguing that the defendant was a minor participant in the offense. Filing 103 at 1. 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 defendant bears the burden of establishing his entitlement to a minor-role reduction. Id. Accordingly, the Court will resolve this issue on the evidence presented at sentencing.

         3. The defendant has moved for downward departure on three grounds. Filing 105. First, the defendant argues that his criminal history category of II substantially over-represents the seriousness of his criminal history. See U.S.S.G. § 4A1.3(b)(1). A defendant bears the burden of proving the appropriateness of a downward departure. United States v. Cantu, 12 F.3d 1506, 1511 (9th Cir. 1993). And "downward departure from the defendant's criminal history category may be warranted if, for example, the defendant had two minor misdemeanor convictions close to ten years prior to the instant offense and no other evidence of prior criminal behavior in the intervening period." § 4A1.3 cmt. n.3. The two criminal history points assessed in this case, however, were less than 5 years prior to the instant offense, and the most recent, in 2012, was drug-related. The Court will, nonetheless, resolve this issue at sentencing.

         Next the defendant argues that he has a disability resulting from a car accident that is a contributing factor to his drug addiction, warranting a departure. Filing 106 at 2. But his motion relies upon U.S.S.G. § 5H1.4, which provides that a defendant's physical condition may be relevant to determining whether a departure is warranted "if the condition . . . is present to an unusual degree and distinguishes the case from the typical cases covered by the guidelines." Se ...


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