United States District Court, D. Nebraska
M. GERRARD CHIEF UNITED STATES DISTRICT JUDGE
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.
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 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).
§ 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.
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.
defendant also anticipates filing a motion for variance.
See filing 39. The Court will ...