United States District Court, D. Nebraska
M. Gerrard Chief United States District Judge.
Court has received the presentence investigation report in
this case. There are no objections to the presentence
investigation report. The defendant has moved for a downward
departure or variance. Filing 104 at 1.
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 objections that require resolution at
sentencing. The defendant has, however, asked the Court for a
downward departure or variance. Specifically, the defendant
asks that the Court vary from the sentencing guidelines based
on his personal circumstances and rehabilitation efforts.
Filing 104 at 1. The Court will resolve that request at
defendant also asks for a variance to give him the benefit of
a two-level safety valve reduction consistent with the First
Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 (2018).
Filing 104 at 1. (A variance is required because the
Guidelines have not yet been amended to reflect the changes
made to the safety valve by the First Step Act.) Although the
Court will make a final determination on this matter at
sentencing, the parties are advised that the Court is likely
to grant that request.
the defendant argues that the sentencing guidelines
"overstate the Base Offense conduct" in this case,
warranting what he calls a "departure." Filing 104
at 2. Specifically, the defendant argues that a two-level
departure is appropriate because the Guidelines applicable to
"pure" methamphetamine as opposed to
"cut" methamphetamine "overstate the Base
Offense conduct," and asks the Court to reduce the base
offense level to be consistent with methamphetamine mixture
instead of actual methamphetamine. Filing 104 at 2;
see U.S.S.G. § 2D.1.1.
that's not an argument for a departure-because a
departure occurs within the context of the Guidelines
themselves, a departure cannot be based on a disagreement
with the Guidelines. Rather, as the Court understands the
defendant's argument, he seems to be asking the Court to
vary from the Guidelines on policy grounds-which is within
the Court's authority. See, Kimbrough v.
United States, 552 U.S. 85 (2007); United States v.
Abraham, 944 F.Supp.2d 723, 727-28 (D. Neb. 2013).
However, the Court is not persuaded that rejection of the
methamphetamine guideline is warranted. SeeUnited States v. Garcia, No. 4:13-CR-3130, 2016 WL
6471107, at *4 (D. Neb. Oct. 31, 2016); United States v.
Munoz-Ramon, No. ...