United States District Court, D. Nebraska
M. Gerrard Chief United States District Judge
Court has received the presentence investigation report and
addendum to the presentence report in this case. The
defendant objects (filing 830) to the presentence
investigation report and moves for variance (filing 831). The
defendant also filed a sentencing memorandum (filing 832)
requesting downward departure under U.S.S.G. §§
5K2.20 and 5H1.6.
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 objects to paragraphs 156 and 159 of the
presentence investigation report, which describe the offense
conduct. Those objections will be resolved at sentencing,
based on the evidence presented at the trial that was held in
this matter (filing 809; filing 810; filing 811; filing 812;
filing 813; filing 814; filing 815; filing 816; filing 817;
filing 818) and any additional evidence adduced at
defendant also moves for departure under U.S.S.G.
§§ 5K2.20 and 5H1.6. A defendant bears the burden
of proving the appropriateness of a downward departure.
United States v. Cantu, 12 F.3d 1506, 1511 (9th Cir.
1993). Section 5K2.20 provides for departure for aberrant
behavior, but "[t]he court may depart downward under
this policy statement only if the defendant committed a
single criminal occurrence or single criminal transaction
that (1) was committed without significant planning; (2) was
of limited duration; and (3) represents a marked deviation by
the defendant from an otherwise law-abiding life."
§5K2.20(b). As the defendant admits, the guideline
"contemplates actions more spontaneous and impulsive in
nature, rather than a plan or scheme that lasted over a
period of time." Filing 832 at 5. Accordingly, the Court
questions whether the defendant can make the necessary
showing for departure under this section. Nonetheless, the
Court will resolve this motion at sentencing.
5H1.6 provides that family ties and responsibilities are
"not ordinarily relevant in determining whether a
departure may be warranted." However, the commentary
suggests a court may consider a departure based on loss of
caretaking or financial support of the defendant's
family. § 5H1.6 cmt. 1(B). The defendant's arguments
for departure under § 5H1.6 are largely based on
personal characteristics and circumstances that also support
her claim for variance. Therefore, the Court will resolve
both the defendant's motion for departure under §
5H1.6 and request for variance at sentencing.
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 ...