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United States v. Carter

United States District Court, D. Nebraska

March 25, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
KORDAYE CARTER, 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. There are no motions for departure or variance. The defendant has objected (filing 153) to the presentence report.

         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 153) to the presentence report in several respects, but the Court's tentative findings are that the objections lack merit.

         To begin with, the defendant objects to the presentence report's list of aliases associated with the defendant. Filing 153 at 2. But, as the addendum to the presentence report notes, the aliases "are contained in the Identifying Data portion of the Presentence Investigation Report. The alias names were obtained from the FBI database. Although [the defendant] denies use of same, the names have been entered into the database and connected to [the defendant]." Accordingly, the Court concludes that it's appropriate for the presentence report to accurately reflect existing law enforcement records. And in any event, the defendant has not pointed out any way in which he is prejudiced on this point.

         Next, the defendant objects to the presentence report's description of the plea agreement as providing that the defendant "waives the right to seek or receive a sentence reduction pursuant 18 U.S.C. 3582(c)(2)." Filing 153 at 2. But that's literally the exact language of the plea agreement. Filing 137 at 2-3. The defendant seems to be concerned about whether the Bureau of Prisons or the Court could at some point reduce the defendant's sentence based on a future Guidelines amendment. Seefiling 153 at 2. But it's not the proper function of the presentence report to speculate about authority to reduce a sentence in the event of a hypothetical change to the Guidelines. The presentence report, in this respect, is simply reciting the terms of the plea agreement-and it has recited them accurately.

         The defendant also "objects to the statement the nature of the instant offense or the defendant's criminal history may present a third party risk to an employer, individual, or group because a third party risk does not exist." Filing 153 at 2. But the presentence report also clearly says that "[p]resently, no third-party risk is identified." And in any event, the Court sees nothing inaccurate about the observation that the nature of the defendant's offenses and criminal ...


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