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United States v. Elmshauser

United States District Court, D. Nebraska

February 21, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
MICHAEL DEAN ELMSHAUSER, Defendant.

          TENTATIVE FINDINGS

          John M. Gerrard Chief United States District Judge

         The 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.

         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 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 eligible.

         The 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).

         When 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.

         3. 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 ...


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