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United States v. Guzman-Ramirez

United States District Court, D. Nebraska

January 9, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
JOSE GUZMAN-RAMIREZ, Defendant.

          TENTATIVE FINDINGS

          John M. Gerrard Chief United States District Judge

         The 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 investigation 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. 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.

         The 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.

         3. 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.

         4. If 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 ...


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