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United States v. Mazzulla

United States District Court, D. Nebraska

July 16, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
RODNEY P. MAZZULLA, Defendant.

          TENTATIVE FINDINGS

          JOHN M. GERRARD JUDGE

         The 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.

         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. There are no motions that require resolution at sentencing. The defendant does, however, raise several objections to the RPSR.

(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 incorrect.
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. ยง 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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