United States District Court, D. Nebraska
F. BATAILLON SENIOR UNITED STATES DISTRICT JUDGE
Sentencing Memorandum supplements findings made on the record
at defendant's sentencing hearing on July 2, 2018. For
the reasons set forth below, the court finds the
defendant's objections to the presentence investigation
report, Filing No. 695, should be sustained in part
and overruled in part, and the defendant's motions for a
departure or a variance from the Guidelines, Filing No.
683 and Filing No. 687, should be denied.
defendant was charged, along with others, in a four count
Second Superseding Indictment (“SSI”). He was
charged in Count 1 with involvement in racketeering in
violation of 18 U.S.C. § 1962(d) (“RICO”).
He was charged with five overt acts in furtherance of the
racketeering enterprise in Count 1: using a firearm to shoot
at victim #1 on or about September 25, 2008 (¶ 14);
selling and distributing crack cocaine in Omaha from August
2011 to May 2013 (¶ 15); possessing with intent to
distribute cocaine on or about November 25, 2011 (¶ 16);
and arguing with victim #2 and shooting at a residence
occupied by victim #2 on or about September 6, 2012 (¶
¶ 20-21). In Count 2, the defendant was charged with
attempted murder of victim #2 in aid of racketeering, in
violation of Nebraska state statue §§ 28-201,
28-302, and 28-303, and in violation of 18 U.S.C. §
1959(a)(5) and section 2. In Count 3, Haynie was charged with
attempted assault with a firearm, in aid of racketeering, in
violation of Nebraska state statue §§ 28-201 and
28-309, in violation of 18 U.S.C. § 1959(a)(6) and
section 2 on or about September 6, 2012. In Count 4, he was
charged with discharging a firearm during a crime of
violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii)
and 924(c)(1)(A)(iii), on or about September 6, 2012.
action was tried to a jury and the jury found Haynie guilty
of racketeering (Count 1) but acquitted him of the remaining
counts. Filing No. 633, Verdict. The court directed
the United States Office of Probation (hereinafter,
“the Probation Office”) to prepare a Presentence
Investigation Report (hereinafter, “PSR”) that
calculated the defendant's sentence under the United
States Sentencing Guidelines (“the Guidelines”).
Filing No. 635, Order on Sentencing Schedule.
PSR, the Probation Office identified U.S.S.G. § 2E1.1 as
the guideline applicable to a racketeering offense under 18
U.S.C. § 1962. Filing No. 704, PSR (Sealed).
That guideline states that the base offense level for a
racketeering offense is 19 or “the offense level
applicable to the underlying racketeering activity.”
U.S.S.G. § 2E1.1(a)(1) and (2). “Where there is
more than one underlying offense, treat each underlying
offense as if contained in a separate count of conviction for
the purposes of subsection (a)(2).” U.S.S.G. §
2E1.1 cmt. n. 1. To determine whether subsection (a)(1) or
(a)(2) results in the greater offense level, Chapter Three
adjustments are applied, including adjustments for multiple
counts, to both (a)(1) and (a)(2). Id.
Probation Office found four overt acts for purposes of
grouping conduct connected to the underlying racketeering
activity. Filing No. 704, PSR at 14. Group #1
included the conduct on September 25, 2008, involving the
defendant shooting at victim #1 (Richard Johnson) who was
believed to be an informant. Id. at 12. Group #2
included drug trafficking for which the defendant was
sentenced in state court (Douglas County District Court case
# CR13-1896), but because the conviction occurred after the
last overt act, the conduct was treated as part of the
instant offense, and not as a prior sentence under U.S.S.G.
§ 4A1.2(a)(1). Id. Group #3 included a drug
trafficking offense for which the defendant was convicted in
state court (Douglas County District Court case # CR11-2877),
but because it resulted from a conviction prior to the last
overt act of the instant offense, it was treated as a prior
sentence under §4A1.2(a)(1) and not as part of the
instant offense. Group #4 included the conduct on September
6, 2012, involving the defendant shooting at victim #2
(Michael Liggins) who was accused of talking to law
enforcement. The conduct in Group #1 and Group # 4 was
considered attempted murder and each group was assigned a
base offense level of 33. The Group #2 conduct was considered
drug distribution and assigned a base offense level of 19.
Id. at 12-13. The group #3 drug distribution conduct
was not assigned a base offense level because the defendant
had been previously sentenced for the conduct. Id.
at 13. The Probation Office conducted a multiple count
adjustment under U.S.S.G. 3D1.4, which reslted in a 2-unit
adjustment for a total offense level of 35. Id. at
probation office next determined the defendant's criminal
history category was V, based on the assessment of 9 criminal
history points for convictions for drug possession,
misdemeanor assault, no operator's license, driving under
suspension, reckless driving, and obstruction of justice, and
2 criminal history points for committing the offense while
under a criminal justice sentence. Id. at 14-20. At
base offense level 35 and criminal history category V,
Haynie's Guidelines sentencing range would have been 262
to 327 months, but since that range exceeds the statutory
maximum for the offense of conviction, the statutory maximum
of 240 months is the Guidelines sentence. Id. at 24.
defendant objected to the PSR, Filing No. 695, and
moved for a downward departure/variance, Filing No.
683 and Filing No. 687. He argued for a
downward departure for overstatement of criminal history
category, contending that many criminal history points were
assessed for numerous offenses that were not serious. He also
objected to the assessment of 2 criminal history points for
committing the crime while under a sentence for another
crime, arguing that his state drug-court sentence conviction
does not qualify as a criminal justice sentence. He argued
that he properly belonged in criminal history category IV. He
also asserted a blanket objection to the ultimate calculation
of his guideline range, arguing that his total offense level
should be 19, which, at criminal history category IV, would
result in a guideline range of 46-57 months.
argument is generally based on the contention that conduct
for which he was acquitted should not be considered in
determining his Guidelines sentence. Although he acknowledges
that uncharged or acquitted conduct could be considered at
sentencing, he argues that the government should not now be
able to use testimony and evidence that was problematic at
trial to levy a more severe sentence when the government was
unable to prove the facts at trial.
sentencing hearing, the government moved for judicial notice
of the trial and offered evidence of other criminal acts.
Specifically, it offered, and the court received, the grand
jury testimony of Vernon Elmore; the proffer interview of Ron
Newman; the report of a shooting incident on April 27, 2005;
the proffer interviews of Shannon Reed and Otis Simmons; and
a police report of law enforcement observation of Haynie in
possession of firearm on September 15, 2009. SeeFiling
No. 698, Index of Evid., Exs. 134 to 138.
PSR, based primarily on the prosecutor's version of
events, the Probation Office outlines as overt acts incidents
involving Richard Johnson and Michael Liggins. Haynie objects
to those portions of the PSR. Those alleged incidents,
characterized as attempted murder, are the basis for the
Probation Office's attribution of base offense levels of
33 and a total offense level of 35. Essentially, the
defendant argues that, although there is a preponderance of
evidence to support using overt acts of drug trafficking as
racketeering offenses, the government has not proved the
attempted murder conduct by even a preponderance of evidence.
He argues that base offense levels of 19 should be assigned
to his drug trafficking grouped conduct under U.S.S.G. §
2E1.1(a)(1) and to his other grouped conduct (assault rather
than attempted murder) under U.S.S.G. 2E1.1(b). The government,
on the other hand, argues for the statutory maximum sentence.
Filing No. 700. It contends that the court should
find Haynie culpable for the attempted murders of Michael
Liggins and Richard Johnson.
a sentencing court must give respectful consideration to the
Sentencing Guidelines, the Supreme Court's decision in
United States v. Booker, 543 U.S. 220 (2005),
permits the court to tailor the sentence in light of other
statutory concerns as well. Pepper v. United States,
131 S.Ct. 1229, 1241 (2011). The district court follows the
sentencing framework set forth by the Supreme Court in
Gall v. United States, 552 U.S. 38, 49-51 (2007).
See United States v. Washington, 515 F.3d 861,
865-66 (8th Cir. 2008) (“We urge district courts to
continue to engage in the three-step process of first
ascertaining the applicable Guidelines range, then
considering any permissible departures within the
Guidelines' structure, and finally, deciding whether a
non-Guidelines sentence would be more appropriate under the
circumstances pursuant to § 3553(a).”). The first
step is to calculate the defendant's advisory Guidelines
sentencing range, which provides “the starting point
and the initial benchmark” for any sentence.
Gall, 552 U.S. at 49. Next, the court determines
whether any traditional Guidelines ...