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United States v. Larkin

United States District Court, D. Nebraska

January 3, 2020

UNITED STATES OF AMERICA, Plaintiff,
v.
TRAVIS ALLEN LARKIN, Defendant.

          TENTATIVE FINDINGS

          JOHN M. GERRARD CHIEF UNITED STATES DISTRICT JUDGE

         The Court has received the revised presentence investigation report in this case. The defendant has objected to the presentence report, see filing 40, and anticipates moving for a variance, seefiling 39.

         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 objected to the presentence report. Filing 40. Specifically, the defendant objects to the presentence report's application of an enhancement to the offense level based on the defendant's prior conviction of attempted third degree sexual assault of a minor, in violation of Neb. Rev. Stat. § 28-320.01(1) & (3).

         U.S.S.G. § 4B1.5(a) provides for enhancement of the offense level if the defendant has at least one previous "sex offense conviction." A "sex offense conviction" includes, as relevant, a state conviction for an offense consisting of conduct that would violate 18 U.S.C. § 2244(a)(5), which proscribes sexual contact with a child. See § 4B1.5 cmt. n.3(A)(ii); 18 U.S.C. § 2426(b)(1)(B). For purposes of § 2244(a)(5), as relevant, "sexual contact" includes intentional touching of the genitals "with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person." 18 U.S.C. § 2246(3). The Nebraska definition of "sexual contact" is similar, but also includes "conduct which can be reasonably construed as being for the purpose of sexual arousal or gratification of either party." Neb. Rev. Stat. § 28-318(5) (emphasis supplied). The defendant argues that the emphasized language renders the Nebraska definition broader than the federal one, meaning that the Nebraska conviction doesn't qualify as a "sex offense conviction" for purposes of § 4B1.5(a). See filing 40.

         The Court is not persuaded that the statutory language is as distinct as the defendant suggests. It is clear under the Nebraska caselaw that the import of the Nebraska statutory language is that there must be evidence from which the trier of fact could reasonably infer that the offender acted for the purpose of sexual arousal or gratification. See State v. Berkman, 430 N.W.2d 310, 313 (Neb. 1988); State v. Charron, 415 N.W.2d 474, 475-76 (Neb. 1987). While the Nebraska statute includes "conduct which can be reasonably construed as being for the purpose of sexual arousal or gratification" in its definition of "sexual contact," what that really means is the offender's intent can be inferred instead of directly proven-and that's true under the federal definition as well. See United States v. Lee, 232 F.3d 653, 656 (8th Cir. 2000); see also United States v. White Bull, 646 F.3d 1082, 1089 (8th Cir. 2011). The fact that Nebraska's evidentiary standard for proving the offender's intent is included in the statutory language, instead of merely being found in the caselaw, does not mean that the Nebraska statute is categorically broader than the federal one. Accordingly, the Court's tentative finding is that the defendant's objection lacks merit.

         3. The defendant also anticipates filing a motion for variance. See filing 39. The Court will ...


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