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United States v. Gonzalez

United States District Court, D. Nebraska

February 11, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
ROBERTO VERGARA GONZALEZ, Defendant.

          TENTATIVE FINDINGS

          JOHN M. GERRARD CHIEF UNITED STATES DISTRICT JUDGE

         The Court has received the revised presentence investigation report in this case. There are no motions for departure or variance. The defendant has objected to the presentence report. Filing 53.

         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. The defendant has objected (filing 53) to the presentence report- specifically, to what is effectively a 6-level increase in the offense level as a result of applying the U.S.S.G. § 2B1.1(11)(A)(ii) enhancement for an offense that involved the "possession or use" of an "authentication feature" of an identification document.

         The Court has discussed the requirements of that enhancement at some length. See United States v. Rodriguez-Cisneros, 916 F.Supp.2d 932, 933-35 (D. Neb. 2013). The Court held that the enhancement applies to what might be called the "security features" of an identification document: that "the primary function of an 'authentication feature' within the meaning of § [2B1.1(11)(A)(ii)] should be its use by the issuing authority to determine if an identification document is counterfeit, altered, or otherwise falsified." Id. at 935.

         But whether the documents at issue in this case bore an "authentication feature" is not what the defendant is questioning. Instead, the defendant relies on a separate, recently amended provision: § 2B1.1(13), which increases the offense level to at least 12 when a defendant is convicted of violating 42 U.S.C. §§ 408(a), 1011(a), or 1383a(a), and the statutory maximum term of ten years' imprisonment applies. The defendant's argument, as the Court understands it, is that by imposing an offense level of at least 12 for a conviction under § 408(a) (one of the offenses to which the defendant pleaded guilty) when the statutory maximum of 10 years applies, the Sentencing Commission is suggesting that an enhancement to an offense level of at least 12 should not be imposed when the § 408(a) conviction has less than a 10-year maximum sentence. See filing 53 at 2-3.

         But the two subsections have nothing to do with one another-and the best indication of when the Sentencing Commission meant § 2B1.1(11)(A)(ii) to apply, is § 2B1.1(11)(A)(ii) itself. These two subsections of § 2B1.1 provide enhancements to the offense level for two separate types of aggravating offense conduct: one enhancement for forged authentication features, and one for the sort of fraud offenses that raise the statutory maximum under § 408(a) to ten ...


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