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United States v. Bolanos

United States District Court, D. Nebraska

July 24, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
RODRIGO BOLANOS, Defendant.

          TENTATIVE FINDINGS

          John M. Gerrard Chief United States District Judge.

         The 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.

         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 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 sentencing.

         The 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.

         Next, 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.

         But 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.[1] 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. ...


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