United States District Court, D. Nebraska
REVISED TENTATIVE FINDINGS
M. GERRARD STATES DISTRICT JUDGE
Court has received the revised presentence investigation
report and addendum in this case. There are no motions for
departure or variance. The government (filing 131)
and the defendant (filing 138) have objected to 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
(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.
government has objected (filing 131) to the drug
quantity calculation in the presentence report, arguing that
the defendant should be held accountable for between 20 and
30 grams of methamphetamine mixture, instead of between 20
and 35 grams of methamphetamine (actual). See
U.S.S.G. § 2D1.1(c)(7) and (11). The government notes
that the defendant's co-defendant in this case was
likewise held accountable for between 20 and 30 grams of
methamphetamine mixture. See filing 114. The Court
will resolve this objection at sentencing.
defendant has also objected to the presentence report.
Filing 138. First, the defendant objects to
the drug quantity calculation, asserting that while he was
present at a drug transaction, he did not participate and is
not responsible for the drugs that were sold. Filing 138
at 1. The Court will resolve this objection on the
evidence presented at sentencing, noting that when the
defendant objects, it is the government's burden to prove
drug quantity by a preponderance of the evidence.
See United States v. Young, 689 F.3d 941,
945 (8th Cir. 2012); United States v. Poor Bear, 359
F.3d 1038, 1041 (8th Cir. 2004).
the defendant objects to the presentence report's
omission of a reduction for acceptance of responsibility.
Filing 138 at 1-2. The Court notes that a defendant
who enters a guilty plea is not entitled to credit for
acceptance of responsibility as a matter of right, and the
burden is on a defendant to show that he clearly demonstrated
acceptance of responsibility. United States v.
Torres-Rivas, 825 F.3d 483, 486 (8th Cir. 2016),
cert. denied sub nom. Torres-Rivas v. United States,
137 S.Ct. 695 (2017); see United States v.
Binkholder, 832 F.3d 923, 927 (8th Cir. 2016). The Court
will resolve this issue on the evidence at sentencing.
defendant also argues that he was a minor participant in the
offense, and should receive a 3-level downward adjustment.
Filing 138 at 2. It is the defendant's burden to
prove that he is entitled to a mitigating role adjustment.
United States v. Salazar-Aleman,741 F.3d 878, 880