United States District Court, D. Nebraska
M. Gerrard Chief United States District Judge.
Court has received the revised presentence investigation
report in this case. There are no motions for departure or
variance. The defendant has objected (filing 106) 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, however, objected to the presentence
report in several respects. Filing 106. To begin
with, the defendant objects to several facts asserted in the
government's version of the offense. Filing 106 at
1-2. He further objects to the presentence report's
conclusion that he had an aggravating role in the offense,
because he recruited others to participate. Filing 106 at
3. But most significantly, he objects to the presentence
report's conclusion that he obstructed justice-and, as a
result, the application of a two-level enhancement for
obstruction of justice and the suggestion that the Court
"evaluate his acceptance of responsibility."
Filing 106 at 2-3.
government bears the burden of proving the applicability of
an enhancement to the offense level, but the defendant bears
the burden of proving the applicability of a reduction to the
offense level. United States v. Shelabarger, 770
F.3d 714, 717-18 (8th Cir. 2014); United States v.
Benson, 715 F.3d 705, 708 (8th Cir. 2013).
if the defendant objects to any of the factual allegations in
the presentence report on an issue on which the government
has the burden of proof, such as enhancements to the offense
level, 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). But a defendant who enters a guilty plea is not
entitled to credit for acceptance of responsibility as a
matter of right, and the burden is on the defendant to show
that he clearly demonstrated acceptance ...