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