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United States v. Parsons

United States District Court, D. Nebraska

November 13, 2018

United States Of America, Plaintiff,
v.
Michael Wayne Parsons, Defendant.

          TENTATIVE FINDINGS

          John M. Gerrard Chief United States District Judge

         The Court has received the revised presentence investigation report and addendum in this case. There are no motions for departure or variance. The defendant has asserted several objections (filing 160) to the presentence report.

         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.[1] The defendant has asserted several objections (filing 160) to the presentence report.

         First, the defendant objects to the presentence report's description, in ¶24 and ¶¶33-37, of a kidnapping plot that was attempted by associates of the defendant, in an apparent effort to free the defendant. Filing 160 at 1. The defendant objects that the defendant wasn't involved in the plot. Filing 160 at 1. But the presentence report clearly says as much, the Court is aware of it, and nothing in the objected-to paragraphs affected the calculation of the guidelines range. So, it doesn't prejudice the defendant-and, as the government points out, it provides helpful context for other evidence in the record of the kidnapping scheme. See filing 163 at 2. The Court's tentative finding is that this objection is without merit.

         Next, the defendant objects to the presentence report's assessment of an enhancement for obstruction of justice pursuant to U.S.S.G. § 3C1.1, based on the presentence report's conclusion that the defendant perjured himself when testifying in his own defense. Filing 160 at 1-2. This enhancement does not apply simply because a defendant testified at trial: the Court must find that the defendant gave false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty memory. United States v. Dunnigan, 507 U.S. 87, 94-95 (1993). And the government bears the burden of proving the facts necessary to support a finding of obstruction by a preponderance of the evidence. United States v. Thundershield, 474 F.3d 503, 507 (8th Cir. 2007). With those principles in mind, the Court will resolve this issue at sentencing if the government chooses to pursue the enhancement.

         Next, the defendant contends that the evidence was insufficient to establish the four-point enhancement to the offense level provided by U.S.S.G. § 2K2.1(b)(6)(A) when the defendant "possessed any firearm or ammunition while leaving or attempting to leave the United States, or possessed or transferred any firearm or ammunition with knowledge, intent, or reason to believe that it would be transported out of the United States." Filing 160 at 2. The government must prove this enhancement by a preponderance of the evidence. ...


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