United States District Court, D. Nebraska
M. Gerrard, United States District Judge.
Court has received the modified/expedited presentence
investigation report in this case. There are no motions for
departure or variance. The defendant has objected (filing
38) 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 has objected (filing 38) to the
presentence report, asserting that he should receive at least
a one-level adjustment to his offense level for acceptance of
responsibility pursuant to U.S.S.G. § 3E1.1.
Guidelines permit a two-level reduction in the offense level
where "the defendant clearly demonstrates acceptance of
responsibility for his offense." Id. The burden
to demonstrate acceptance of responsibility is the
defendant's. United States v. Rivera-Mendoza,
682 F.3d 730, 734 (8th Cir. 2012). In determining whether the
defendant has accepted responsibility, as relevant to this
case, the Court's considerations include whether the
defendant truthfully admitted the conduct comprising the
offense of conviction, voluntarily terminated or withdrew
from criminal conduct, and the timeliness of the
defendant's conduct in manifesting acceptance of
responsibility. Id. cmt. n.1.
acceptance-of-responsibility adjustment is "not intended
to apply to a defendant who puts the government to its burden
of proof at trial by denying the essential factual elements
of guilt, is convicted, and only then admits guilt and
expresses remorse." Id. cmt. n.2.
Conviction by trial, however, does not automatically preclude
a defendant from consideration for such a reduction. In rare
situations a defendant may clearly demonstrate an acceptance
of responsibility for his criminal conduct even though he
exercises his constitutional right to a trial. This may
occur, for example, where a defendant goes to trial to assert
and preserve issues that do not relate to factual guilt
(e.g., to make a constitutional challenge to a statute or a
challenge to the applicability of a statute to his conduct).
In each such ...