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United States v. Santos-Zepda

United States District Court, D. Nebraska

December 6, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
JOSE SANTOS-ZEPEDA, Defendant.

          TENTATIVE FINDINGS

          John M. Gerrard Chief United States District Judge

         The Court has received the presentence investigation report and addendum in this case. The defendant has filed a "motion for deviation or variance" that also contains an objection to the presentence report. Filing 117.

         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 has filed a "motion for downward deviation or variance" (filing 117) that the Court understands to be a motion for variance. See United States v. Lozoya, 623 F.3d 624, 625-26 (8th Cir. 2010). He asks the Court to vary downwards from the Guidelines range based on his age and the sentence imposed on one of his co-defendants. Filing 117 at 3-4. The Court will resolve that motion at sentencing.

         Despite not filing a separate objection to the presentence report, the defendant's motion also argues that the defendant should receive a mitigating role adjustment pursuant to U.S.S.G. § 3B1.2, which "provides a range of adjustments for a defendant who plays a part in committing the offense that makes him substantially less culpable than the average participant in the criminal activity." Id., cmt. n.3(A), see filing 117 at 2-3. The defendant bears the burden of proving that he is entitled to a mitigating role adjustment. United States v. Salazar- Aleman, 741 F.3d 878, 880 (8th Cir. 2013). Specifically, it is the defendant's burden to establish his mitigating role both "by comparison with other participants and by comparison with the offense for which he or she is accountable." United States v. Ramirez-Maldonado, 928 F.3d 702, 708 (8th Cir. 2019), cert. denied sub nom. Llamas-Delgado v. United States, No. 19-5983, 2019 WL 5150731 (U.S. Oct. 15, 2019). The Court must consider, among other things,

(i) the degree to which the defendant understood the scope and structure of the criminal activity;
(ii) the degree to which the defendant participated in planning or organizing the ...

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