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United States v. Remus

United States District Court, D. Nebraska

March 18, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
MARCUS KIM REMUS, Defendant.

          TENTATIVE FINDINGS

          John M. Gerrard United States District Judge

         The Court has received the revised presentence investigation report and addendum in this case. The defendant has objected to the presentence report. Filing 135.

         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 objected (filing 135) to the presentence report, generally objecting to the presentence report's calculation of the advisory Guidelines range based not only on the charges arising from the December 26 robbery to which the defendant pleaded guilty, but the December 28 and December 30 robberies as well.

         The addendum to the presentence report explains the probation officer's conclusion that the other robberies should be considered pursuant to U.S.S.G. § 1B1.2(c), which provides that a written plea agreement "containing a stipulation that specifically establishes the commission of additional offense(s) shall be treated as if the defendant had been convicted of additional count(s) charging those offenses." But the most that the Court can get out of the plea agreement in this case is the defendant's stipulation that he previously admitted to authorities that he participated in the December 28 robbery. He stipulated to the evidence suggesting participation in the December 30 robbery, but did not directly stipulate to participating. Seefiling 103 at 2-3.

         The Court cannot help but note, however, that the undersigned presided over a 4-day jury trial at which the defendant testified against his co-defendant, at length and in detail, about his participation in a string of robberies, including the robberies reflected in the presentence report. The Court's determination of the appropriate sentence to impose in this case is far more likely to be affected by the defendant's own comprehensive description of his conduct than by parsing the precise language of the plea agreement. ...


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