United States District Court, D. Nebraska
M. GERRARD, CHIEF UNITED STATES DISTRICT JUDGE
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.
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.
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). 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.
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 ...