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United States v. Rosenblatt

United States District Court, D. Nebraska

January 16, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
JENNIFER A. ROSENBLATT, Defendant.

          TENTATIVE FINDINGS

          JOHN M. GERRARD, CHIEF UNITED STATES DISTRICT JUDGE

         The Court has received the revised presentence investigation report in this case. The defendant has objected (filing 32) to the presentence report, and filed a motion for variance (filing 33) from the advisory Guidelines range.

         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. The defendant has objected (filing 32) to the presentence report. Specifically, she contests the presentence report's loss calculation (which will also be relevant to the issue of restitution).[1] The defendant has admitted taking at least $92, 679.38. Filing 32 at 2. But she disputes the remaining $14, 033 found by the presentence report to have been taken, the most important of which appears to be $6, 155 in payments made to the defendant's business that the defendant claims were made for authorized printing services.

The difference is meaningful under the Guidelines because under U.S.S.G. § 2B1.1(b), a loss to the victim of more than $95, 000 results in an 8-level enhancement to the offense conduct, while a loss of between $40, 000 and $95, 000 results in only a 6-level enhancement. And, of course, the difference is meaningful to the defendant and the victim because of the Court's obligation to award restitution. See 18 U.S.C. § 3663A(a)(1), (c)(1)(A)(ii).
The government has the burden to prove actual loss, for fraud purposes, by the preponderance of the evidence. United States v. Markert, 774 F.3d 922, 925 (8th Cir. 2014). Similarly, the government must prove restitution is warranted by a preponderance of the evidence, by showing the actual, provable loss. 18 U.S.C. § 3664(e); United States v. Martinez, 690 F.3d 1083, 1088 (8th Cir. 2012). Accordingly, the Court will resolve the issues of loss calculation and restitution at sentencing, based on whether the government can prove that the disputed amounts exceeding $92, 679.38 were stolen.

         3. The defendant also moves for a downward variance from the advisory guidelines range, based on her personal circumstances, the circumstances of the offense, and the § 3553(a) factors. See ...


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