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. There are no motions for
departure or variance. The defendant has objected (filing
153) to the presentence report.
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.
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.
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.
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.
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 ...