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United States v. Brodigan

United States District Court, D. Nebraska

December 8, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
D'NE ROSE BRODIGAN, Defendant.

          AMENDED TENTATIVE FINDINGS

          John M. Gerrard United States District Judge

         The Court has received the presentence investigation report in this case. The defendant objects to the presentence report, and moves for a downward departure and variance. Filing 59; filing 60.

         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.

         The defendant has moved for a downward departure or variance. She argues that her history of abuse, anxiety, and depression warrants a downward departure under U.S.S.G. § 5H1.3. Filing 62 at 3. And she contends that those circumstances, in addition to her remorse for the crime, warrant a downward variance pursuant to 18 U.S.C. § 3553(a). Filing 62 at 4. The defendant also moves for a downward departure under § 4A1.3(b), which applies when the defendant's criminal history category, while properly assessed, "substantially over-represents the seriousness of the defendant's criminal history or the likelihood that the defendant will commit other crimes." The defendant argues that the presentence report's 1-point assessment to her criminal history score for a 2008 procuring offense over-emphasizes the severity of her criminal record, and thus should not be considered. After all, the defendant argues, the offense was committed "less than two months after her 18th birthday" and "almost nine years before the offense in this case[.]" Filing 62 at 1.

         The defendant bears the burden to prove the appropriateness of a downward departure. See United States v. Cantu, 12 F.3d 1506, 1511 (9th Cir. 1993). The Court will resolve these issues at sentencing.

         2. The defendant has also moved for a departure under § 4A1.3(b) on the grounds that her total criminal history score was incorrectly calculated. Filing 62 at 2. She argues that her prior sentences for aiding and abetting and possession of a controlled substance should have been considered together, as opposed to separately, under § 4A1.2(a)(2). Accordingly, she argues, her total criminal history score should be 13, as opposed to 15, as currently reflected in the report. Filing 62 at 2.

         But the Court understands that motion as an objection to the presentence investigation report, and not-as it is currently styled-a request for downward departure. Indeed, the defendant does not suggest that her two prior sentences over-represent the seriousness of her prior criminal history. Rather, she argues that the sentences were incorrectly calculated in arriving at a ...


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