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 filed objections (filing 58;
filing 61) to the presentence report.
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 objects to the presentence investigation
report, arguing that the two-level enhancement to the offense
conduct required by U.S.S.G. § 2D1.1(b)(1) should not be
applied to her case. Filing 58. Specifically, the defendant
suggests that there is insufficient evidence to show that the
defendant was in possession of a firearm.
§ 2D1.1(b)(1), a defendant's offense level increases
by two levels "[i]f a dangerous weapon (including a
firearm) was possessed." The increase applies "if
the weapon was present, unless it is clearly improbable that
the weapon was connected with the offense." §
2D1.1(b)(1), cmt. n.11(A).
the defendant objects, it is the government's burden to
prove the applicability of an enhancement by a preponderance
of the evidence. See, United States v. Mustafa, 695
F.3d 860, 862 (8th Cir. 2012); United States v.
Twiggs, 678 F.3d 671, 674 (8th ...