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United States v. Jacobsen

United States District Court, D. Nebraska

June 6, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
KENNETH J. JACOBSEN, Defendant.

          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. 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.

         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 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.

         The 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.

         3. The 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 sentencing.

         4. 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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