United States District Court, D. Nebraska
M. Gerrard United States District Judge.
Court has received the revised presentence investigation
report ("RPSR") in this case. There are no motions
for departure or variance. The defendant has filed an
objection (filing 38) to the RPSR.
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.
There are no motions that require resolution at sentencing.
The defendant does, however, raise several objections to the
RPSR's base offense level calculation.
facts set forth in the RPSR, briefly summarized, are that the
defendant was arrested in California for drug distribution on
September 5, 2017. RPSR at 7, 18. At the time of his arrest,
officers found at least 196 grams methamphetamine and seized
$14, 511.00 in U.S. currency. RPSR at 7. The defendant was
convicted in California state court on October 2, 2017, of
possession of methamphetamine for sale, and sentenced to
three years probation. RPSR at 18. Less than a month later,
on October 31, 2017, the defendant was traveling back to
California from New Jersey when he was detained in a rest
area for parking next to a no parking sign. RPSR at 6, 8.
During the stop, the defendant consented to a search of his
vehicle which revealed $19, 515.00 in U.S. currency packaged
in a way consistent with narcotics dealing. RPSR at 6, 8-9.
defendant objects to all facts in the RPSR relating to the
September 5, 2017 California arrest. Filing 38 at 1. The
defendant argues that the California conduct (i.e.,
methamphetamine distribution) is not related to the instant
offense (i.e., interstate travel in aid of
racketeering). Thus, the defendant contends that he is only
accountable for the U.S. currency found during the October
2017 Nebraska search ($19, 515.00), rather than the combined
total seized from the California and Nebraska arrests ($34,
026.00). RPSR at 18-19.
conduct includes all acts that occurred during the commission
of the offense of conviction, in preparation for that
offense, or in the course of attempting to avoid detection or
responsibility for that offense. U.S.S.G. § 1B1.3(a)(1).
More specifically, conduct is relevant if it is "part of
the same course of conduct or common scheme or plan as the
offense of conviction." U.S.S.G. § 1B1.3(a)(2).
"Conduct underlying a prior conviction is not relevant
to the instant offense if the former conviction was a
severable, distinct offense from the latter." United
States v. Hernandez, 712 F.3d 407, 409 (8th Cir. 2013)
(citation omitted). Factors useful in determining whether the
two offenses are severable and distinct are temporal and
geographical proximity, common victims, common scheme, charge
in the indictment, and whether the prior conviction is used
to prove the instant offense. United States v.
Thomas, 2014 WL 3704039, at *12 (8th Cir. July 28,
2014). When the defendant objects to any of the factual
allegations contained therein on an issue on which the
government has the burden of proof, such as the base offense
level and any enhancing factors, the government must present
evidence at ...