Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Papazian

United States District Court, D. Nebraska

June 11, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
JAMES MICHAEL PAPAZIAN, Defendant.

          TENTATIVE FINDINGS

          John M. Gerrard Chief United States District Judge.

         The 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.

         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, 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.

         The 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).

         Accordingly, 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.