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United States v. Pojoy-Garcia

United States District Court, D. Nebraska

October 4, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
OTTO POJOY-GARCIA, Defendant.

          TENTATIVE FINDINGS

          John M. Gerrard, United States District Judge.

         The 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.

         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 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.

         The 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.

         The 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 ...

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