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United States v. Pena

United States District Court, D. Nebraska

February 22, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
GABRIEL ANTONIO PENA, Defendant.

          TENTATIVE FINDINGS

          John M. Gerrard, Chief United States District Judge

         The Court has received the revised presentence investigation report and addendum in this case. The defendant has filed a final motion for downward departure/variance (filing 30) and objected to several aspects of the RSPR (filing 31).

         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. The defendant has made several objections to the drug quantities attributed to the defendant in the RPSR. Filing 31 at 1. Specifically, the defendant claims that before he entered his guilty plea, "Counsel for the parties determined that the quantity attributable to the Defendant was at least 40 grams but less than 50 grams of methamphetamine." Filing 31 at 2. That drug quantity results in a base level of 22 under U.S.S.G. § 2D. 1.1. The RPSR, however, attributes 578.51 grams of methamphetamine to the defendant-resulting in a base offense level of 30. RPSR at 7.

         The Court notes that the parties do not have a written plea agreement. Filing 28 at 11. At the defendant's change of plea hearing, there was some disagreement as to what oral promises had been made. Ultimately, the only oral agreement noted by the parties was the government's statement that it would not file an Information on the defendant's prior felony drug conviction- meaning that his sentence would not be subject to enhancement on that basis-because such an information was have to have been filed before the defendant pleaded guilty. Filing 28 at 11-13. No. oral agreement regarding the drug quantity attributable to the defendant was made at that time, and the government expressly stated, before the defendant pleaded guilty, that "there's no plea agreement. . . not even oral." See filing 28 at 11-14. The Court also notes that despite his contention that "[c]ounsel for the parties determined that the quantity attributable to the Defendant was at least 40 grams but less than 50 grams of methamphetamine," the defendant nonetheless pleaded guilty to a charge of conspiring to distribute 50 grams or more of methamphetamine. See filing 1; filing 28 at 16.

         Regardless, 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). The Court will resolve this issue at sentencing.

         The defendant has also filed a motion for variance (filing 30) asking the Court to vary from the Guidelines range based on his personal circumstances under 18 U.S.C. §3553(a). See filing ...


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