United States District Court, D. Nebraska
M. Gerrard Chief United States District Judge
Court has received the presentence investigation report in
this case. There are no motions for departure or variance.
The defendant has filed an objection (filing 61) to the PSR.
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 filed an objection (filing 61) asserting
his eligibility for safety valve relief. But the PSR has
already indicated as much. Specifically, the PSR states that
after the adoption of the First Step Act, the defendant now
meets the criteria for the safety valve as set forth at 18
U.S.C. § 3553(f). PSR at 8. And so, it appears that the
parties' agree that the defendant is safety valve
defendant also objects to the PSR's assessment of one
criminal history point for a prior possession of
paraphernalia conviction. That conviction, the defendant
claims, is relevant conduct to the instant
offense--conspiracy to distribute methamphetamine. Relevant
conduct includes all acts that occurred during the commission
of the offense of conviction, in preparation for that
offense, or in the course of attempting to avoid detection or
responsibility for that offense. U.S.S.G. § 1B1.3(a)(1).
More specifically, conduct is relevant if it is "part of
the same course of conduct or common scheme or plan as the
offense of conviction." U.S.S.G. § 1B1.3(a)(2).
"Conduct underlying a prior conviction is not relevant
to the instant offense if the former conviction was a
severable, distinct offense from the latter." United
States v. Hernandez, 712 F.3d 407, 409 (8th Cir. 2013)
(citation omitted). Factors useful in determining whether the
two offenses are severable and distinct are temporal and
geographical proximity, common victims, common scheme, charge
in the indictment, and whether the prior conviction is used
to prove the instant offense. United States v.
Thomas, 760 F.3d 879, 891 (8th Cir. 2014).
the defendant objects to any of the factual allegations
contained therein on an issue on which the government has the
burden of proof, such as the base offense level and any
enhancing factors, the government must present evidence at
the sentencing hearing to prove the existence of the disputed
facts. United States v. Poor Bear, 359 F.3d 1038,
1041 (8th Cir. 2004). And whether the government has proven
that the paraphernalia conviction is not relevant conduct by
a preponderance of the evidence is a matter the Court will
resolve at sentencing. Id.
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 ...