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United States v. O'Neal

United States District Court, D. Nebraska

January 16, 2020

UNITED STATES OF AMERICA, Plaintiff,
v.
SEAN O'NEAL, Defendant.

          TENTATIVE FINDINGS

          John M. Gerrard Chief United States District Judge.

         The Court has received the revised presentence investigation report and addendum in this case. The defendant has filed a sentencing statement (filing 81) containing a motion for downward variance. The defendant's sentencing statement also reasserts the objections to the presentence report reflected in the addendum to the report. Filing 81 at 2.

         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 objects to ¶ 97 of the presentence report, which applies a 2-level enhancement for obstruction of justice, and ¶ 100, which denies the defendant an adjustment for acceptance of responsibility.

U.S.S.G. § 3C1.1 provides for a 2-level increase to the offense level
[i]f (1) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and (2) the obstructive conduct related to (A) the defendant's offense of conviction and any relevant conduct[.]

         That 2-level increase was assessed because the defendant harassed a witness by email and attempted to harass him through a website. See ¶ 88; filing 23; filing 65. The same conduct is the basis for denying acceptance of responsibility: "Conduct resulting in an enhancement under §3C1.1 (Obstructing or Impeding the Administration of Justice) ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct. There may, however, be ...


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