United States District Court, D. Nebraska
M. Gerrard, Chief United States District Judge.
Court has received the revised presentence investigation
report in this case. There are no motions for departure or
variance. The defendant has objected (filing 38) to 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
(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 motions for departure or variance. The defendant
has objected to the presentence report on several grounds.
the defendant objects to setting the base offense level at 38
pursuant to U.S.S.G. § 2D1.1(a)(2), which applies when
"the offense of conviction establishes that death or
serious bodily injury resulted from the use of the
substance[.]" The defendant correctly points out that
while he was charged with a count of distribution of
methamphetamine resulting in death, filing 1 at 1, the count
he pled guilty to was simply distribution of methamphetamine,
filing 31 at 1-2. While a death resulting from that
distribution may be considered by the Court, §
2D1.1(a)(2) only applies when the offense of
conviction establishes that death resulted, and
that's not the case here. United States v.
Bradford, 499 F.3d 910, 918-19 (8th Cir. 2007),
abrogated on other grounds by United States v.
Villareal-Amarillas, 562 F.3d 892 (8th Cir. 2009).
Accordingly, the Court concludes (and the government
apparently agrees) that the defendant's objection has
merit, and that the base offense level was incorrectly
determined by the presentence report. The drug weight set
forth in the presentence report would support a base offense
level of 18.
defendant also objects to the assessment of enhancements to
the offense level for misrepresenting a substance containing
fentanyl, see § 2D1.1(b)(13), and for a
vulnerable victim, see U.S.S.G. § 3A1.1(b)(1).
Whether the defendant misrepresented fentanyl as heroin is a
factual question to be answered at sentencing, with the
burden on the government to establish the factual basis for
an enhancement by a preponderance of the evidence. United
States v. Mitchell, 825 F.3d 422, 425 (8th Cir. 2016).
The vulnerable victim enhancement is based on the
victim's status as "a drug addict who was not an
experienced fentanyl user." There is some question
whether being a drug addict is sufficient to establish
vulnerability, particularly when the charge is a drug crime
and the possibility that the recipient is an addict is
presumably already taken into account. See
United States v. Guidry, 817 F.3d 997, 1009 (7th
Cir. 2016); United States v. Volkman, 797 F.3d 377,
398 (6th Cir. 2015); United States v. Amedeo, 370
F.3d 1305, 1318 (11th Cir. 2004); see also United States
v. Angeles-Mendoza, 407 F.3d 742, 748 (5th Cir. 2005).
Nonetheless, the Court will also resolve this issue at
sentencing. Again, the government may, or may not, contest
the defendant's objections.
Except to the extent, if any, that the Court has sustained an
objection, granted a motion, or reserved an issue for later
resolution in the preceding paragraph, the parties are
notified that the Court's tentative ...