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