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United States v. Bowens

United States District Court, D. Nebraska

June 20, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
MAURICE T. BOWENS, 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. The defendant objects to the presentence report (filing 31) and has moved for a downward variance (filing 32).

         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. The defendant objects to the assessment of one criminal history point for a 2017 conviction of misdemeanor animal neglect in violation of Lincoln, Neb. Mun. Code § 6.04.315. Seefiling 36-1. The presentence report states that "[a]ccording to the court documents, the defendant was charged . . . with own, keep, or harbor an animal and fail, refuse or neglect to provide said animal with adequate veterinary care as is necessary." He pled guilty and paid a $200 fine. But because animal neglect is also an offense under state law, see Neb. Rev. Stat. § 28-1009(1), [1] a criminal history point was assessed pursuant to U.S.S.G. §§ 4A1.1(c) and 4A1.2(c)(2).

         An offense is not counted, however, if it is one of the excluded offenses listed in § 4A1.2(c)(2)-or, if it is "similar" to an excluded offense. The defendant, citing United States v. Burge, 683 F.3d 829, 834 (7th Cir. 2012), argues that his offense is similar to the excepted offense of "[f]ish and game violations." Filing 31 at 1.

         In determining whether an unlisted offense is similar to a listed offense, the Court

should use a common sense approach that includes consideration of relevant factors such as (i) a comparison of punishments imposed for the listed and unlisted offenses; (ii) the perceived seriousness of the offense as indicated by the level of punishment; (iii) the elements of the offense; (iv) the level of culpability involved; and (v) the degree to ...

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