United States District Court, D. Nebraska
M. Gerrard Chief United States District Judge
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.
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.
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.
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 ...