Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Ortega

United States District Court, D. Nebraska

November 7, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
LOUIS ORTEGA, Defendant.

          REVISED TENTATIVE FINDINGS

          JOHN M. GERRARD STATES DISTRICT JUDGE

         The 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 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. The 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.

         3. The 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).

         Next, 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.

         The 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.