United States District Court, D. Nebraska
M. Gerrard, United States District Judge
Court has received the presentence investigation report in
this case. The defendant objects to the presentence report.
Filing 63 at 1. The defendant also asks the Court to impose a
below-Guidelines sentence pursuant to the parties' Fed.
R. Crim. P. 11(c)(1)(C) plea agreement. See filing
63 at 2; filing 64.
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 objects to the presentence report's assessment
of two criminal history points, pursuant to U.S.S.G. §
4A1.1(d), for committing the instant offenses while on
probation. See filing 63 at 1. But committing the
offense of conviction while still on probation clearly falls
within § 4A1.1(d). So, the Court infers that the
defendant is arguing he was no longer on probation when an
offense of conviction was committed. The defendant's
objection does not explain whether he thinks the factual
error is in the period of probation or the time of his
offense. But it is the government's initial burden to
prove the fact of conviction. United States v.
Dodson, 817 F.3d 607, 610 (8th Cir. 2016); see
United States v. Abanatha, 999 F.2d 1246, 1250-51
(1993); see also United States v. Meyer, 141 F.3d
1171 (8th Cir. 1998). Accordingly, the Court will resolve
this issue on the evidence at sentencing.
defendant also objects to all "paragraphs reflecting
guideline calculations in excess of an offense level of
43." Filing 63 at 1. He points out that under the
Guidelines, "[a]n offense level of more than 43 is to be
treated as an offense level of 43." U.S.S.G. Ch. 5, Pt.
A, cmt. n.2. So, he contends, his total offense level should
be 40: a base offense level of 43, from which 3 points are
subtracted for acceptance of responsibility. Filing 63 at 1.
But that's not how the Guidelines work: it is a
total offense level above 43-that is, the offense
level after any applicable enhancements or
adjustments-that is to be treated as an offense level 43 for
purposes of applying the sentencing table. See United
States v. Jauron, 832 F.3d 859, 862 (8th Cir. 2016);
United States v. Stong, 773 F.3d 920, 925 (8th Cir.
2014). This argument is without merit.
defendant also argues that the Court should impose a
below-Guidelines sentence of 300 months, based on his
personal circumstances, the § 3553(a) factors, and the
Rule 11(c)(1)(C) plea agreement. See filing 64. The
Court will address the defendant's argument at
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 ...