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United States v. Mazzulla
United States District Court, D. Nebraska
July 16, 2018
UNITED STATES OF AMERICA, Plaintiff,
RODNEY P. MAZZULLA, Defendant.
M. GERRARD JUDGE
Court has received the revised presentence investigation
report ("RPSR") in this case. There are no motions
for departure or variance. The defendant has objected (filing
160) 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
(a) First, the defendant objects to the drug quantity
attributed to the defendant in the RPSR. Filing 160 at 1.
Specifically, the defendant contends that the sentencing
guidelines improperly treat pure methamphetamine "more
harshly" than mixed methamphetamine. Filing 160 at 1
(citing United States v. Nawanna, No. CR
17-4019-MWB, 2018 WL 2021350, at *5 (N.D. Iowa May 1, 2018)).
But complaining that the Guidelines are unfair isn't a
proper objection to the RPSR, because the defendant isn't
saying that the Guidelines calculation in the RPSR is
The Court could vary from the Guidelines based upon
policy grounds. See United States v.
Abraham, 944 F.Supp.2d 723, 727-28 (D. Neb. 2013)
(citing United States v. Kimbrough, 552 U.S. 85, 109
(2007)). But the undersigned has repeatedly refused to reject
the methamphetamine guideline, despite being invited to do
so. See United States v. Munoz-Ramon, No.
8:13-CR-244 (D. Neb. Sept. 17 and Nov. 24, 2014),
aff'd, 614 Fed.Appx. 857 (8th Cir.), cert.
denied, 136 S.Ct. 700 (2015); see also, United
States v. Carlos, No. 4:14-CR-3109 (D. Neb. July 21,
2015); United States v. Gallegos Loaiza, No.
4:13-CR-3130 (D. Neb. July 8, 2015). The Court will apply
U.S.S.G. § 2D1.1 at sentencing.
(b) Next, the defendant objects to the RPSR arguing that the
two-level enhancement to the offense conduct required by
U.S.S.G. § 2D1.1(b)(1) should not be applied to his
case. Specifically, the defendant argues that the evidence at
trial was insufficient to establish that a "firearm or
dangerous weapon" was present when he committed the
underlying offenses. Filing 160 at 1. The defendant also
claims that even if a firearm or dangerous weapon was
present, there was not sufficient evidence ...
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