United States District Court, D. Nebraska
M. Gerrard Chief United States District Judge
Court has received the presentence investigation report in
this case. There are no motions for departure or variance.
The defendant and the government have, however, both filed
objections (filing 64 and filing 67) to the presentence
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.
Both the defendant and the government object to the drug
quantity calculation in the presentence investigation report,
contending that the Court should use the drug quantity set
forth in the plea agreement. The presentence investigation
report recommends a base offense level of 36. PSR at 8. The
plea agreement, however, stipulates that the defendant should
be held responsible for at least 1.5 kilograms, but less than
5 kilograms of methamphetamine (mixture)--triggering a base
level offense of 32. See U.S.S.G. §
2D1.1(c)(4). The Court will resolve this issue at sentencing.
defendant also objects to the presentence report's
conclusion that the defendant is not safety-valve-eligible.
Filing 64 at 1-2. At the time the presentence investigation
report was submitted, the defendant had not yet provided the
government with information about the offense, although the
interview was scheduled. The safety valve is available so
long as the government receives the information no later than
the time of the sentencing hearing, even if a defendant's
last-minute move to cooperate is a complete about-face.
Deltoro-Aguilera v. United States, 625 F.3d 434, 437
n.3 (8th Cir. 2010); see also United States v.
Morones, 181 F.3d 888, 891 (8th Cir. 1999); United
States v. Tournier, 171 F.3d 645, 646-47 (8th Cir.
1999). But the defendant has the burden to show affirmatively
that he has satisfied each requirement for the safety value,
including whether truthful information and evidence have been
given to the government. United States v.
Alvarado-Rivera, 412 F.3d 942, 947 (8th Cir. 2005). With
those principles in mind, the Court will resolve this
objection on the evidence presented at sentencing.
Except to the extent, if any, that the Court has sustained an
objection, granted a motion, or reserved an issue for later
resolution in the preceding paragraph, the parties are
notified that the Court's tentative findings are that the
presentence report is correct in all respects.
any party wishes to challenge these tentative findings, that
party shall, as soon as possible (but in any event no later
than three (3) business days before sentencing) file with the
Court and serve upon opposing counsel an objection
challenging these tentative findings, supported by a brief as
to the law and such evidentiary materials as are required,
giving due regard to the local rules of practice governing
the submission of evidentiary materials. If an evidentiary