United States District Court, D. Nebraska
M. Gerrard United States District Judge
Court has received the revised presentence investigation
report in this case. The defendant has objected to the
presentence report (filing 32) and moved for a downward
variance (filing 34).
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.
defendant has objected (filing 32) to the presentence
report's suggestion that the Court consider an upward
variance, based on the § 3553(a) factors and the nature
of the offense. The defendant contends that his "conduct
was not outside the heartland of conduct normally
constituting a violation" of the offense of conviction,
and "an upward departure would contravene the plea
agreement[.]" Filing 32 at 1.
begin with, the Court finds no merit to the contention that
departing or varying upward would contravene the plea
agreement-the plea agreement bound the government to
recommend a sentence at the low end of the Guidelines range,
filing 26 at 6, but was made pursuant to Fed. R. Crim. P.
11(c)(1)(B), filing 26 at 4, and binds neither the probation
office nor the Court, see United States v.
Gillen, 449 F.3d 898, 902 (8th Cir. 2006). The Court
will consider whether this case is "outside the
'heartland' to which the [Sentencing] Commission
intends individual Guidelines to apply" in the context
of applying the § 3553(a) factors. See
Kimbrough v. United States, 552 U.S. 85, 89 (2007).
defendant has also moved for a downward variance (filing 34),
based on his personal circumstances and the nature of the
offense. See filing 34-1. The Court will consider
the defendant's evidence and resolve this issue, pursuant
to the § 3553(a) factors, at sentencing.
Except to the extent, if any, that the Court has sustained an
objection, granted a motion, or reserved an issue for later
resolution in the preceding paragraph, the parties are
notified that the Court's tentative ...