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United States v. Hiykel

United States District Court, D. Nebraska

February 22, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
ANDREW HIYKEL, 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 motion for variance (filing 32) and objected to the RPSR (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 objected to the RPSR's four-level enhancement for possessing a firearm in connection with another felony offense under U.S.S.G. § 2K2.1(b)(6)(B). Specifically, the defendant claims there is no evidence that the defendant's possession of the firearm actually facilitated his possession of the controlled substances. Filing 33 at 4. Thus, the defendant argues, his total offense level should be 11. The RPSR, however, concludes that the defendant's total offense level is 15. RPSR at 6.

         Section 2K2.1(b)(6)(B) increases a defendant's base offense level if the defendant "[u]sed or possessed any firearm or ammunition in connection with another felony offense." But there is a distinction between the factual circumstances when the other felony was a drug trafficking offense, or alternatively, a simple drug possession offense. United States v. Johnson, 846 F.3d 1249, 1250 (8th Cir. 2017). If the felony is for drug trafficking, Application Note 14(B) mandates application of the adjustment if guns and drugs are in the same location. Johnson, 846 F.3d at 1250. If the underlying drug offense is for simple possession, on the other hand, the Court may only apply the adjustment after making a finding that the firearm facilitated the drug offense. Id. The Court may not apply the enhancement based "solely on a temporal and spatial nexus between the drugs and firearms." Id. at 1251.

         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). Accordingly, the Court will determine on the evidence presented at sentencing whether the government has shown that the defendant's use of possession of the firearm facilitated his drug offense.

         The defendant has also filed a motion for variance (filing 3) asking the Court to vary from the Guidelines range based on his personal circumstances and the § 3553(a) factors. See filing ...


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