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United States v. Garro

United States District Court, D. Nebraska

May 22, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
GREGORY L. GARRO, JR., Defendant.

          TENTATIVE FINDINGS

          John M. Gerrard United States District Judge

         The 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).

         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 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.

         To 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).

         The 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.[1]

         3. 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 ...


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